Trans Liberation and Law: Structure, Limits and Strategy after FWS
By Aoife Edith Rosa
Waiting for the Verdict, Abraham Solomon (1859)
This essay was originally published in Legal Form.
Several months on from the UK Supreme Court’s assertion that sex in the Equality Act is ‘biological sex’ in For Women Scotland v. The Scottish Ministers [1], there remains no real clarity as to how this ruling is to be implemented. As a result, the ability of trans people to engage in public life remains indeterminate. [2] Guidance on how to act upon this new reading is yet to be set out and implemented. All are left in a state of suspended pause. The moment of determination on the status of transness is yet to arrive.
Importantly, though, the legal struggle continues. The trans liberation movement seems to have placed a renewed focus upon legal arguments for liberation, best exemplified by litigation by trans people through the Good Law Project. This raises the question of whether recourse to the law and the courts is the correct path. This is not merely an academic question, but a strategic one that has massive importance. What is at stake is whether this moment of crisis can be capitalised upon—not only to push back upon the changes to ‘rights’ in the status of trans people, but also to go further and ensure that the material needs of trans people can be fought for. In light of this, the question is whether litigation is the best way to achieve the material needs of trans people.
Expanding upon my previous analysis in the UKCLA, [3] this piece argues that uncertainty is not an accident but that the content of law is indeterminate, even if the structure of law is not. [4] As such, no final moment of clarity can ever come, regardless of guidance on the practical implications of the law. This has vital importance for the question of how the law can be used by those who seek to fight for trans liberation.
First, I begin with some reflections on the current situation in the UK and the indeterminacy of this moment. After this, the analysis turns to the strategic and tactical use of law as it pertains to trans liberation, examining in closer detail the limitations and flaws with a primarily legal strategy of trans liberation. I conclude with the argument that whilst legal struggles cannot be abandoned, the primary struggle must never be limited to the legal sphere.
Let us first establish what is meant by ‘indeterminate’ in the context of trans life. Eight months have passed since the decision in For Women Scotland Ltd. During this time, the Equality and Human Rights Commission have presented their draft guidance, a consultation, and laid before Equalities Minister Bridget Phillipson updated guidance on how to comply with the Equality Act in light of the ‘biological sex’ ruling of the UKSC. [5] However, like the opening scene of Hamlet, all await the eventual apparition of the guidance into practice. [6] The constant leaking of what the guidance contains has generated a mixed reaction: whilst some rushed to interpret the law as now allowing for lawful discrimination against trans people, others have acted as though For Women Scotland Ltd changed nothing. So much for the ‘much needed clarity’. [7] Trans lives have been left in indeterminacy, their position unclear, and are left awaiting clarity.
Here, it is helpful to consider what historian Jules Gill-Peterson has stated on the subject. Gill-Peterson reflects that ‘we have to remember that there’s no single court ruling, no existential moment, no single referendum on “transgender rights” that’ll decide how this struggle will go’. [8] This is not only a rallying cry for continued struggle against the corrosive pull of nihilism, but questions the interpretation that law gives definitive answers.
Therefore, the question must be asked: What if there is never clarity, and the structure of law itself precludes definitive outcomes? Such an analysis would have crucial implications for how law can be used in the struggle for trans liberation.
Within the world of international law, the indeterminacy theory of law, developed by Martti Koskenniemi, is well known. [9] That legal arguments need to be both concrete and normative leads to law being indeterminate. [10] This means that law contains within it mutually exclusive arguments. As Koskenniemi writes of the indeterminacy thesis:
[T]his is not a semantic thesis about the linguistic vagueness of norms. Some rules are clearer than other rules. The indeterminacy theses [sic] deals with relationships between rules and exceptions, counter-rules and the reasons for rules, and shows that even a valid, clear rule may be inapplicable due to the need to apply a narrow exception or a standard so as to realize the purpose of the rule. Because rules are no more important than the purposes for which they are enacted, and because there is disagreement about those purposes (as rules always come about through legislative compromise over ‘conflicting considerations’), it is always possible to set aside a rule. Thus, all law (and not just semantically unclear law) is infected by indeterminacy. [11]
This is an argument against the possibility of a definitive content to law. Rendered another way, it precludes the possibility of a final singular decision or understanding of law, that such notions are theoretically impossible. This has a clear impact on the idea of relying upon the law to offer the possibility of a final victory, or final defeat, and even the notion of seeking to enact change through law.
Importantly, though, this should not be read as the idea that law is entirely malleable in all directions at all times. This is where the combination of the indeterminacy theory of law with the materialist theory of law set out by Evgeny Pashukanis becomes vital. [12] This is an important addition to this theory, as it sets out that this does not mean law is entirely unmoored and indeterminate.
For Pashukanis, the contract is the birth of law, representing a legal agreement between two parties that gives all other legal abstractions life. [13] In turn, Pashukanis argues that this should be understood as the inversion of the exchange of commodities. [14] This is the inverse of the dominant theory of law as being about norms, describing such a system as rendering law into ‘a lifeless abstraction’. [15] That it is only through the legal relation that ‘law accomplish its real movement’. [16] What this means is that law can be indeterminate in content generally, but that it has a material basis in the legal means the indeterminacy exists within the context of law being structurally tied to capitalism. As such, this does impose ways in which the indeterminate content is most likely to be rendered. The tying of the indeterminacy into the social relations of capitalism has crucial implications for how law can be used by those who seek to use the law from a subordinate position in these existing social relations.
Two examples can be used to demonstrate the indeterminacy, in doing so, developing this theory into practice and then looking forward to the practical implications of such. The first is the For Women Scotland Ltd case itself. The second is a brief examination of legal practice, using England and Wales as an example.
In For Women Scotland Ltd, the Court of Session Inner House found that sex and gender were used interchangeably throughout the Equality Act, disagreeing with the idea that sex could only mean ‘biological sex’. [17] Clearly, the UK Supreme Court disagreed with the Scottish Court. Whilst a higher court overruling a lower court’s decision is viewed generally as the higher court offering the ‘correct’ reading, this disagreement can be read in another way in line with the theory of indeterminacy. The determination made by the UKSC is simply another determination of the same fundamental indeterminacy that law has at its core. The difference being the UKSC in the state structure of the UK has the power over the Scottish Court. [18] What this shows is that in understanding the decision as a particular determination of what is otherwise indeterminate, we must further ask how and why the law was determined in the way that it was. If the law’s content is not itself fixed, then by what methods are the courts reaching such analysis? This allows us to demystify this process and examine it as a political decision. [19]
Since determinations are never fixed, the law does not cease to be indeterminate simply because one court has decided one case in one way. The determinations only exist in that context, in that moment. As Gill-Peterson reminds us, the indeterminacy can only ever be resolved in particular moments, and, importantly, the indeterminacy is resolved by the capitalist state. [20] As such, any ‘victory’ is never definitive or stable, nor is any ‘defeat’. This means that any appeal to law or the courts will only ever yield momentary and impermanent results that are liable to be wiped away as quickly as they arose.
Given Pashukanis’ argument that law is about social relations, the role of the state as an actor giving top-down determinations is much more marginal than often assumed. This too has crucial implications for the potential ability that victories through state determinations can offer. Most ‘law’ takes place far away from any state involvement. We can see this point borne out by way of example of civil litigation in England and Wales. Out of the vast number of legal situations navigated every single day, few become contentious questions of jurisprudence. Of those that result in civil litigation in which claims are issued, statistics show that only a tiny percentage of these ever go to trial, the point at which the state makes a determination. [21] Therefore, the state—contrary to popular conception—should not be viewed as something that is always involved in the law, but rather as being more marginal. Most of these situations are handled between parties. The impact of this is that the actual determinations by the state are of less significance than how people follow the indeterminacy and act upon it.
We can now think about all the preceding in the context of the UK. Since the UKSC decision in April, there has been a flurry of activity. This includes cases launched by trans people alongside the Good Law Project, which have the aim of overturning this decision and fighting for trans inclusion through law. This can be counterposed with the creation of an organisation that is ‘fighting to retain women’s sex-based rights’ through the law. Both those in favour of trans inclusion and those opposed to it see the law as a vehicle of this struggle. Several points can now be taken from these developments when considered with the above analysis.
The first is regarding litigation in general and judicial review in particular. As stated above, the form of law is inherently capitalist; it both requires and creates atomisation. What this means is that legal challenges can exist without needing a social base in favour or opposed. To bring a legal challenge, or legal fight, there is no need for a mass movement. All that is required is a legal argument and the resources to invest in litigation.
The structure of law, both in a theoretical sense and a practical one, renders the claimant an isolated figure. Even where a claimant is part of a broader struggle, the difficulty of navigating the legal process is borne by them. As many Marxists have long commented, the law places anyone in an oppressed group into terrain that is closely tied to the existing capitalist order. [22] The legal world is fundamentally a bourgeois practice, further separating them from any mass struggle. Further, it has the effect of rendering a multi-faceted and varied movement into a few legal claimants who become, whether intended or not, the spokespeople. Yet, they have been placed there by their engagement with the bourgeois legal form. Indeed, those most likely to be the legal claimants are those who are more likely to belong to the ranks of the bourgeois than not. This is the structure of the legal superstructure.
There is an inverse to this. That law benefits those claimants who are well-resourced and well-adapted to the legal sphere, regardless of their individual ideologies. Indeed, it allows such ideologies, even if fringe, to be rendered ‘equal’. Again, this is the structure of law as a set of competing arguments between two ‘legally equal’ persons. It also helps those whose views are aligned with the repressive functions of the state in maintaining social order. These offer cautions for how law can be engaged with whilst wishing to create a movement.
The final point is that a part of this struggle is taking place in the legal realm. For all the flaws with it that I have outlined, we remain confronted by a simple truth: ‘if you don’t do the law, the law will do you’.[23] As such, to recuse oneself entirely from legal struggle is not a viable pathway. To abandon the law entirely is not possible, as this is not a one-way optional struggle. As Ralph Miliband writes in his article on the coup in Chile, class struggle is too often understood as the subordinate struggling against the dominant, when instead it should be understood in reverse—that it is primarily the dominant classes that are waging a struggle against the subordinated classes. [24] The struggle over trans rights is not simply about trans people fighting for liberation as a subordinate group, but also—and rather more importantly—the dominant patriarchal system fighting against threats to its very dominance.
If law can bring no final victory or final defeat, what can it offer? Here, it is useful to draw on the insights of Robert Knox, whose work has at its core this question of how the law can be engaged with and when. [25] In this context, Knox writes of the importance of the distinction between strategy and tactics. [26] ‘Strategy is—in essence—how it is that one would fight and win a war: connecting the various individual battles together so as to achieve this broader objective’[27], whereas ‘[t]actics are concerned with how to win the individual battles and engagements of which the war is composed.’[28] Knox argues that whilst one can be successful using a tactic to win a ‘battle’, this can end up being strategically disruptive.[29] Here, Knox is writing on the intervention by academics, setting out that the invasion of Iraq was illegal. As he writes, ‘[c]hoosing to couch the intervention in liberal legal terms ultimately reinforces the structure of liberal legalism, rendering it more difficult to transcend these arguments.’ [30] This presents the problem that even if a successful ‘legal’ argument is made, it can result in the reification of the legal structure. Likewise, challenging the state through human rights ends up reinforcing the state you are seeking to challenge. The question of how to think about law becomes crucial.
The resource allocation needed to fight for trans liberation through the law necessarily involves resources not being allocated to other avenues. [31] This becomes particularly important when it is considered that those opposed to trans liberation have essentially limitless resources to draw upon. Combined with the inherent indeterminacy of law, an important point arises. It is not that the law is now determined, but rather that the indeterminacy is such that the threat of litigation against individuals, businesses, etc is real. In turn, this means that places, institutions and people are acting in ways that they believe leave them less exposed to the risk of litigation; in so doing, they are creating determinations of the law as exclusionary without the need for the state to render it as such.
This presents the question of how any engagement through a legal framework that cannot offer a determination can mitigate this. The answer is simply that, by itself, it cannot. It is only possible through social movements that foreclose the possibility for the law to be determined in that way. That money to lawyers may be far less effective than alternative uses, even when it achieves victories. [32]
In America, it has been trans people who have brought legal challenges against anti-trans legislation. In the UK, there is a definitive need to be responsive to legal challenges; abdication is not a possibility. In this context, trans people now find themselves seeking to challenge the Supreme Court’s decision through the European Court of Human Rights. Taking this further, we should understand these court cases as firmly within the world of tactical decisions, but the strategy of trans liberation cannot be limited to such legal challenges. There remains the danger that by intervening in this way, there is the danger of reifying the institutions that are oppressing, which is a channel of struggle that has shown itself very fruitful for the counter-trans struggle.
What, then, does this mean for the potential use of law? Knox argues that there is a way to use law that does not give in to a total nihilism (that disavows the law entirely) or to a liberal legalism (that results in the reification of the law). Instead, the law can be used in a tactical way, provided it is not the whole strategy. What Knox argues is that we should dispense with seeing law through the legality-illegality division, focusing instead on ‘the way in which law and legal arguments are used’.[33] This is ‘principled opportunism’, where legal arguments can be used, but with the need to have ‘the strategic aim of building a movement to overthrow capitalism’.[34]
To render this in terms of the trans struggle—which is one struggle in the broader context of the struggle against all forms of bourgeois oppression—it means that the use of legal challenges against trans oppression must not be centred around individualistic demands, but around arguments that aim to build a movement. In particular, this becomes relevant as these challenges are primarily rights-based. Yet even a ‘victory’ that returns the situation to the position before April would not improve the lives of the majority of trans people in the UK. Therefore, a particular legal outcome should never be the main priority; we should be focused on building out social structures that render legal outcomes secondary.
Looking at the above analysis in light of the attempted challenge to the FWS decision through the ECHR, two immediate issues are raised. The first is that the geographical position of the ECtHR necessarily means that the legal challenges that occur there are distant. As such, unlike with domestic legal struggles, where the courts can become a potential focal point, there is no possibility of this with a case at the ECHR. The second point is that the ECHR’s position within the UK political understanding is increasingly one understood as a distant institution that is counterposed with ‘British values’.[35] In this context, a ‘victory’ at this level risks simply being another point in this existing narrative, a victory with limited tactical value that further illuminates the issues with a strategic reliance on law.
What can be a potentially useful tactical engagement with law in this area is one that has centred on the idea that a strategy of trans liberation can only be achieved through social struggle. What this looks like is placing importance on utilising court cases to show the political nature of judicial reasoning and decision making, and to use the spectacle of the legal system against itself, that the celebration of people losing their rights is grotesque. It can be used to delineate between those who side with the oppressed and those who side with the oppressors. It is using the law with a clear focus that the struggle of trans people is not one of abstract rights but of material everyday struggles, for housing, for healthcare, and for employment. Most importantly, though, to use law tactically is to know that the final victory and the final defeat will never come from the realm of the indeterminate law, but instead a rupture in our social conditions.
Aoife Edith Rosa is a PhD candidate in the UK.
Thank you to Gregory Davies, Jess Randall, Andrew Woodhouse and the editors of Legal Form for all their comments and feedback on earlier drafts of this paper. Also, thanks to Robert Knox and to all those with whom I have discussed the points above.
Footnotes
[1] For Women Scotland Ltd v The Scottish Ministers.
[2] Brian Wheeler, ‘Watchdog Urges Phillipson to Speed up Trans Guidance’ (BBC News, 15 October 2025) https://www.bbc.co.uk/news/articles/cly24ggj4xzo. Accessed 24 October 2025.
[3] Penelope Cassandra Webb, ‘Silences, Spectacle and the Limitations of Law’ (UK Constitutional Law Association, 5 June 2025) https://ukconstitutionallaw.org/2025/06/05/silences-spectacle-and-the-limitations-of-law.
[4] The use of indeterminacy used in this work is following in the Koskenniemi sense, specifically the form that was advanced by Marxist who adopted this model. See China Miéville, ‘The Commodity-Form Theory of International Law: An Introduction’ (2004) 17 Leiden Journal of International Law 271, 272.
[5] Wheeler, ‘Watchdog Urges Phillipson to Speed up Trans Guidance’.
[6] This reference is on notably and famously used by Derrida in his engagement with Marx’s legacy: Jacques Derrida, Peggy Kamuf and Jacques Derrida, Specters of Marx: The State of the Debt, the Work of Mourning and the New International (Routledge 2011); John Dover Wilson and William Shakespeare, Hamlet: The Cambridge Dover Wilson Shakespeare (Cambridge University Press 2009).
[7] ‘Keir Starmer Does Not Believe Trans Women Are Women, No 10 Says – BBC News’ https://www.bbc.co.uk/news/articles/crldey0z00ro. Accessed 13 May 2025.
[8] Harron Walker, ‘This Historian Has Seen the Future of Trans Health Care’ (Them, 16 June 2025) https://www.them.us/story/jules-gill-peterson-historian-scotus-skrmetti-trans-youth-healthcare. Accessed 25 October 2025.
[9] Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2nd edn, Cambridge University Press 2005).[10] Koskenniemi, From Apology to Utopia:
[11] Koskenniemi, From Apology to Utopia:, 170.
[12] Miéville, ‘The Commodity-Form Theory’; Evgeny B Pashukanis, Law and Marxism: A General Theory. (Barbara Einhorn tr, Pluto 1990).
[13] Pashukanis, Law and Marxism, 121.
[14] Pashukanis, Law and Marxism.
[15] Pashukanis, Law and Marxism.
[16] Pashukanis, Law and Marxism.
[17] For Women Scotland Ltd v The Scottish Ministers [2023] CSIH 37 [2023] The Court of Sessions Inner House CSIH 37 Para 51.
[18] For an analysis of the UK Supreme Court and its role in defence of the union see: Gregory Davies, ‘The UK Supreme Court and Devolution: Guardian of the Passive Revolution?’ (2025) 2025 Public Law 58.
[19] Webb, ‘Silences, Spectacle and the Limitations of Law’.
[20] Walker, ‘This Historian Has Seen the Future of Trans Health Care’.
[21] Ministry of Justice, ‘Civil Justice Statistics Quarterly: January to March 2025’ (Gov.UK).
[22] See: Nate Holdren and Eric Tucker, ‘Marxist Theories of Law Past and Present: A Meditation Occasioned by the 25th Anniversary of Law, Labor, and Ideology’ (2020) 45 Law & Social Inquiry 1142.
[23] Robert Knox, ‘Strategy and Tactics’ (2010) 21 Finnish Yearbook of International Law 224; An interesting example of this is set out by Gill-Peterson: Jules Gill-Peterson, ‘Understanding What’s at Stake (It’s Always Been Transition)’ (Sad Brown Girl on Substack, 4 December 2024) https://sadbrowngirl.substack.com/p/understanding-whats-at-stake-its accessed 15 January 2026.
[24] Ralph Miliband, ‘The Coup in Chile’ (1973) 10 The Socialist Register 451, 453.
[25] A selection of these range from his early piece using Lukacs through both domestic and international movements: Knox, ‘Strategy and Tactics’ (n 36); Robert Knox, ‘A Marxist Approach to R.M.T. v The United Kingdom’ in Damian Gonzalez-Salzberg and Loveday Hodson (eds), Research Methods for International Human Rights Law: Beyond the Traditional Paradigm (1st edn, Routledge 2019) https://www.taylorfrancis.com/books/9780429889370 accessed 11 May 2025; Robert Knox, ‘International Law, Politics and Opposition to the Iraq War’ (2021) 9 London Review of International Law 169; Adam Hanieh, Robert Knox and Rafeef Ziadah, Resisting Erasure: Capital, Imperialism, and Race in Palestine (Verso Books 2025).
[26] Knox, ‘Strategy and Tactics’.
[27] Knox, ‘Strategy and Tactics’, 197.
[28] Knox, ‘Strategy and Tactics’.
[29] Knox, ‘Strategy and Tactics’, 208.
[30] Knox, ‘Strategy and Tactics’, 209.
[31] Webb, ‘Silences, Spectacle and the Limitations of Law’ .
[32] Webb, ‘Silences, Spectacle and the Limitations of Law’.
[33] Knox, ‘Strategy and Tactics’, 224.
[34] Knox, ‘Strategy and Tactics’, 225.
[35] Robert Knox, ‘The Right Against the Rule of Law’ (Salvage, 28 January 2023) https://salvage.zone/the-right-against-the-rule-of-law accessed 14 January 2026.
