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Kyle L Murray & Tara Beattie are both PhD candidates at Durham Law School.

The Case

Gayle Newland’s case is likely not news to many – her retrial and conviction for sexual assault of a female friend has attracted wide-ranging media coverage. This is perhaps no surprise, given the numerous case-elements which challenge typical expectations of the nature of sexual assault, and the profile of an offender. As the Telegraph reports, “a woman who preys on another woman confounds expectations” – the public often picturing sex offenders “as seedy men who lie in wait for strangers.” But so too does the nature and extent of the deception surrounding the assault. The victim believed that she was in a romantic, sexual relationship with a man named ‘Kye’ – a false persona created by Newland. Although the two met, ‘Kye’ was never seen in person, with the victim being requested to wear a mask during their meetings, on account of supposed embarrassment at a disfigurement. When together, Newland carried out sexual acts using a prosthetic penis, and forbade the victim from touching her.

The case raises ethical and legal considerations surrounding deception, identity and consent. For some, Newland’s conviction is a worrying reflection of the state of gender and consent in criminal law, and something which could have repercussions for the LGBTQ community. For others, those voices do not fully acknowledge the damage caused by building a relationship upon lies.

For two law researchers, with respective backgrounds in moral scepticism and sexual privacy, this was the topic of an afternoon conversation which proved troubling to both parties. Our full commentary is provided in in dialogical form here. A summary of the issues discussed is provided below.

Trans rights, deceit, and bodily autonomy Continue Reading »

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Guest editor: Dr Angela Dwyer and Dr Olivia Rundle

Abstracts due September 8, 2017. Final papers due February 5, 2018.

The Journal of Lesbian Studies, a peer-reviewed academic journal published by Taylor and Francis, invites proposal submissions for a special issue on the subject of Lesbians and the Law. The Journal of Lesbian Studies examines the cultural, historical, and interpersonal impact of the lesbian experience on society, keeping all readers – professional, academic, or general – informed and up-to-date on current findings, resources, and community concerns. The journal is interdisciplinary in scope and is essential reading for independent scholars, lay people, professors, and students.

Continue Reading »

kaushikKaushik Paul, Durham University

The European Court of Human Rights (hereinafter “the ECtHR”) delivered a judgment in the case of Belcacemi and Oussar v Belgium (application no 37798/13) on 11 July 2017. In this case the ECtHR, in line with its previous decision in SAS v France (application no 43835/11), upheld the ban on wearing Islamic full-face veils (e.g. the niqab and the burqa worn by Muslim women) in public places in Belgium on the grounds of living together. In Belcacemi, the ECtHR unanimously said that “the wearing in public of clothing that partly or totally covers the face” can be prohibited to “guarantee the conditions of ‘living together’” and for the “protection of the rights and freedoms of others”. The ECtHR also maintained that Belgium’s ban on full-face veils was “necessary in a democratic society” under Article 9 of the European Convention on Human Rights.

Before moving to offer a critique of Belcacemi ruling, it is worth elaborating on the concept of ‘living together’. This concept was established and accepted by the ECtHR in SAS. However, the ECtHR has never clearly defined the notion of living together. In upholding the full-face veil ban in France on the basis of the living together principle, the Grand Chamber held in SAS that “the voluntary and systematic concealment of the face is problematic because it is quite simply incompatible with the fundamental requirements of living together in French society and that the systematic concealment of the face in public places, contrary to the ideal of fraternity, … falls short of the minimum requirement of civility that is necessary for social interaction” (para. 141-142). The Grand Chamber also held that allowing women to wear the full-face veils in public spaces might breach “the right of others to live in a space of socialisation that makes living together easier” (para. 122). Continue Reading »

Alex Shar10689909_1016854768344392_8793741729286128967_npe, Professor of Law at Keele University and barrister at Garden Court Chambers, London. Twitter handle: alexsharpe64

We are familiar with opposition to rights acquisition by sexual and gender minorities, at least when it comes from socially conservative and/or religiously moral quarters. Yet, in our topsy-turvy world, it is elements of the liberal or libertarian left that increasingly appear to block the way. In this article, I will consider this disturbing tendency through the example of the recent announcement of the Equalities Minister Justine Greening that the government intends to liberalise legal arrangements governing legal recognition of gender identity.[1]

This reform proposal has led to sustained criticism from several leading liberal or libertarian political journalists. Thus it has been criticised by Brendan O’Neill, editor of Spiked Magazine,[2] and by Helen Lewis, the deputy editor of the New Statesman.[3] In this article, I want to take to task the central objection each raises. O’Neill objects to what he views as the re-writing of history regarding the ‘facts’ of gender. For her part, Lewis imagines all manner of harmful consequences that reform may produce for cisgender women. In O’Neill’s case, existing legal arrangements, as well as proposed reform, appear to represent an affront, while Lewis focuses on potential harms which she links to expanding the pool of people able to receive a Gender Recognition Certificate (GRC).

I will argue that O’Neill’s objection is based on a mistaken view of history, of historical analysis, of the doing of history. Conversely, Lewis’ claim is an empirical one, but one utterly lacking in evidence. What unites both is fantasy. Lewis’ imagination runs amok, sensitising the public to the possibility that one of the most marginalised and vulnerable groups in society (trans women) might, if permitted to pee in female bathrooms, have recourse to female refuges and/or be allocated to a gender-appropriate prison, prey on cisgender women. In a different register, O’Neill invokes the cultural power of Orwell and points to the dystopia he believes reform will inevitably deliver. Continue Reading »

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Charlotte O’Brien, University of York

[This post was originally published in The Conversation and is reproduced here with the kind permission of that blog and the author]

It has emerged that the team being sent to Brussels to lead on talks to take Britain out of the EU includes just one woman – out of nine named negotiators.

This imbalance is not only embarrassing. It’s negligent. Failing to include women on the frontline of this incredibly important process jeopardises the quality of the negotiations.

Men don’t know (or do) what’s best for women

Having women on your team matters – and not just because of optics. It affects the quality of the laws that are made. The Equal Pay Act of 1970 and the Sex Discrimination Act of 1975 were both passed by parliaments that were 96% male and 4% female. Both pieces of legislation are great achievements on the surface but both were deeply flawed. The original equal pay rules required a job evaluation survey, effectively meaning that women had to seek permission from their employers (back then: men) to mount an equal pay claim. Until the EU intervened, the Sex Discrimination Act appeared to require pregnant women to be compared to sick men, making it easier to sack them. This unfavourable treatment on the grounds of pregnancy was not considered sex discrimination. Continue Reading »

Professor Alex Sharpe, Keele University10689909_1016854768344392_8793741729286128967_n

Today, at Manchester Crown Court, Gayle Newland was, after a second trial, convicted of three counts of the sexual offence of assault by penetration,[1] on the basis of ‘gender identity fraud.’[2] After serving eleven months of an eight year sentence, the Court of Appeal set aside her original conviction in 2015[3] because they found it to be ‘unsafe’ due to the summing up of trial judge, Roger Dutton.[4] In my view, prosecutions of this kind should not be commenced. My reasons for taking this stance include, but are not exhausted by, opposition to criminal law overreach (criminalisation of non-coercive, desire-led intimacy constitutes a step too far), and concern over legal inconsistency (contrast prosecution of gender non-conforming people for sexual fraud with the fact that deceptions, for example, as to wealth, social status, drug use, criminal convictions, religious belief and/or ethnic status produce no legal consequences), and discrimination (‘gender history’ is not only singled out for special legal attention, but it is the gender histories of LGBTQ kids, rather than people at large (for we all have gender histories), that appears to exhaust state interest in historical facts about gender). Continue Reading »

 

Kate Gleeson

Dr. Kate Gleeson, Macquarie University, NSW, Australia

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse is in its closing stages, preparing its final report due at the end of this year. The Royal Commission was established in 2013 in response to allegations of cover-ups of child sexual abuse in religious and secular institutions.

The Commissioners have since embarked on an extensive project of truth recovery and restorative justice, investigating the organisational practices of institutions ranging from dance schools, swim schools and yoga ashrams, to schools, Churches and orphanages of different denominations, although most allegations concern the Catholic Church.

Throughout the past four years the Royal Commission has held public hearings into more than 40 investigatory case studies, and conducted over 6700 private hearings for survivors to tell their stories unchallenged. Another 2000 private sessions are scheduled before the end of the year. Information gathered in hearings is believed to have led to at least 120 prosecutions of historical child sex offences across the country. Continue Reading »