Professor Alex Sharpe, School of Law, Keele University
Until very recently, I used to think transgender people were an especially vulnerable group in our society. It certainly appeared so. Didn’t they experience far more violence, discrimination and general incivility than most of us? In fact, I’m sure I remember reading somewhere (somewhere credible in fact) that 42% of transgender people never come out at work for fear of losing their jobs. Well you can understand it really. Indeed, and sorry for being pedantic, but wasn’t it the case, despite an obvious clear and present danger, that law, and the criminal justice system more generally, failed miserably to protect transgender people’s bodily and sexual autonomy? In fact, I might be mistaken (though I think you’ll find I’m not), but wasn’t it the case that the very definition of rape excluded transgender women so that cisgender men could basically rape them with impunity (see, further, my article ‘The Failure to Degenderise the Law of Rape: The Criminal Justice and Public Order Act and the Transsexual Rape Victim’ (1995) The Criminal Lawyer, 7-8). Of course, some things have improved. But none of this really matters, because this version of recent history (while true) is no longer fashionable.
Today, when the words ‘transgender’ and ‘rape’ come together in our national conversation they tell a rather different story. Far from being vulnerable victims, transgender people are now, apparently, marauding and sexually dangerous present-day Mr Hydes or, when the press remember to get it right, Miss Hydes. While that old media chestnut, the pleasures of the flesh, remains central to the story, transgender people have been recast as villains, or to be more precise, sexual predators. Now, you may need to suspend your disbelief at this point. Think Hitchcock. This narrative account can be found in the pages of the serious and the not so serious news media (for example here, here and here) and on countless blogs. While perhaps not the cause, the trigger for much of this recent, and at times purient, interest has been a series of criminal prosecutions brought against young transgender men who did not disclose their gender history to cisgender women prior to sexual intimacy (see further the news stories here, here and here). These prosecutions have all been successful. Some defendants have received custodial sentences and all have been placed on the Sex Offenders Register for life. Most recently, on 27th June, the Court of Appeal, in McNally v R [2013] EWCA Crim 1051, upheld the validity of one of these convictions so that we now have a binding legal precedent for the view that equates non-disclosure of gender history with fraud, and therefore rape or, at least, other serious sexual offences. More prosecutions are now perhaps to be anticipated. While this has enraged many within transgender communities, as well as many cisgender people, it has not produced the kind of general outrage that it demands.
These prosecutions ought to concern us all because they represent unprecedented state intrusion into the private lives of citizens through the criminal law and because they target a single group, and it has to be said a highly vulnerable and marginalised one at that, thereby undermining the rule of law. In relation to the proper reach of the criminal law, it should be appreciated that prior to the Court of Appeal’s decision in McNally, courts have proved extremely reluctant to conclude that consent is lacking in circumstances where sexual intercourse has been obtained through fraud. Moreover, in those cases where fraud has been established, the defendant’s actions can, to one degree or another, be described as coercive (see Jhetta [2007] EWCA Crim 1699; Bingham [2013] EWCA Crim 823; R (on the Application of F) [2013] EWHC 945). There was no coercion in any of the cases involving transgender defendants. With regard to selective enforcement of the law we should recognise that in sexual encounters there are many things we do not know, but would perhaps like to know, about the other party. These include: past sexual experience, including (in the heterosexual context) past homosexual experience; HIV status, religious beliefs; ethnicity; drug addiction; convictions for child abuse; and so forth. The list is potentially endless. In all these instances, as well as in countless others, consent, in the eyes of the law, stands. That is to say, no legal consequences attach to non-disclosure in any of these circumstances. Now, of course, it might be argued that the criminal law should be extended to some or all of the above examples of non-disclosure and perhaps others. That is to say, the problem might be framed as one of under-regulation. However, let us at least concede that prosecution for non-disclosure of facts potentially considered material by sexual partners is a rare event and, to the extent that those facts relate to group identity, unheard of prior to the recent spate of prosecutions brought against young transgender men.
However, objection to prosecution for non-disclosure of gender history is not confined to legal inconsistency. Rather, the very basis for prosecution is suspect. There are two key justifications that might support prosecution. First, it might be said that non-disclosure is ‘wrong’ because it deprives sexual partners of the ability to make an informed choice. This is an argument premised on sexual autonomy. Second, it might be said that non-disclosure is in some sense harmful or, at least, potentially harmful to sexual partners. This is a utilitarian argument. Let us consider each and in the process reject both.
Sexual autonomy: Sexual autonomy is an important right and clearly needs to be taken seriously, especially in a society characterised by systemic violence directed toward women. However, how seriously should it be taken? Should it trump all other interests, values and rights that may arise in the context of sexual congress? In transgender contexts, our courts seem to think so. Yet, attributing primacy to sexual autonomy serves to mask some important considerations. If we shift our focus from transphobia to racism the sexual autonomy argument tends to wane rather quickly. Thus a woman who had sexual intercourse with a mixed race man believing him to be white would garner little public, and crucially no legal, sympathy if she subsequently claimed to feel violated and sought to invoke the machinery of the state. Indeed, the legal and cultural response is unlikely to differ if the man was aware of the woman’s racist feelings. This example is not intended to draw us back into the inconsistencies of law. Rather, the point is to highlight a compelling public policy interest in limiting the operation of sexual autonomy as an overriding right.
Moreover, in contrast to many deception scenarios, transgender people are not guilty of intentional deception. There is no lie telling here. Most crucially of all is the fact that the equation of non-disclosure of gender history with fraud is simply mistaken. Unlike many individuals who do deceive rape complainants about important matters, transgender people do not masquerade or pretend to be something they are not. Any suggestion of this kind is offensive. Rather, they present to their sexual partners, and to the world, their true gender selves, and this is true irrespective of whether particular surgeries have been undertaken and/or whether legal recognition has been granted. The very idea of deception only makes sense if we adopt the view that a disjunction exists between gender identity and gender presentation. In other words, prosecution is premised on the denial of the very phenomenon of transgenderism itself. And this is despite the fact that it is medically and legally recognised and funded. In other words, the demand to know is, in the present context, not a demand to know who somebody really is. This fact is, after all, already in the open. Rather, it is a demand to know highly personal facts about the body and its history that in no way casts doubt on the authenticity of the gender identity that is presented to sexual partners. In such circumstances, we ought to give sexual autonomy claims short shrift.
Harm: It is sometimes argued that inadvertent sexual contact with a transgender person might lead to harm and that this is justification for a disclosure requirement. Putting to one side the offensiveness of such a claim, and the obvious transphobia that underwrites it, the harm claim is, in any event, a weak one. There are a number of reasons why. First, it is dubious as to whether we are really in the territory of harm as opposed to mere offence. Certainly, the distress, disgust and/or revulsion which complainants have expressed seem to fall within the latter category and therefore acccording to basic liberal principles ought to be viewed as insufficient for the purposes of invoking the criminal law. However, even if a harm argument were accepted, it would be necessary to consider potential harm to transgender people arising out of a disclosure requirement. That is to say, a balancing exercise would be required if harm minimisation were our goal. This tends to be neglected in discussions of harm arising out of non-disclosure.
Disclosing gender history is not an act undertaken without risks. In the first place, coming out as transgender exposes a person to considerable and well-documented physical risks. We need only think of the tragic case of Brandon Teena, so graphically illustrated in the film, Boys Don’t Cry. This concern is perhaps intensified in relation to transgender youth and therefore in relation to all defendants prosecuted so far. Further, it needs to be appreciated that a disclosure requirement, which successful prosecutions have effectively created, is not limited to inter-personal communication between the sexual parties. Rather, and because transgender people are unlikely to be believed in the event of subsequent dispute (why would anybody knowingly have sex with a transgender person? Yuk), it is now, in practice, encumbent on transgender people to disclose their gender history to the family and friends of a sexual partner and perhaps more widely still. Accordingly, the physical risks of disclosure are multiplied. In addition to the not inconsiderable physical risks, we need to recognise the psychological and emotional impact of disclosure. For many transgender people, having to disclose their chromosomal status, present and/or past genital and/or gonadal condition as well as a history of coerced gender performance is a source of pain and trauma.
These facts appear to get in the way of a good story, one of gender ambiguity and the two concerns which it triggers, namely, sexual dangerousness and ethically suspect behaviour. Yet, characterisation of transgender people as harmful and deceptive provides a spectacular example of cis-gender privilege and conceit. In short, the gender identities of transgender people are denied, thereby rendering gender presentation, fraud, and it is insisted that, in circumstances of non-disclosure of gender history, cis-gender people would not consent to sexual intimacy and that they are likely to suffer harmful consequences. Harm here is framed in terms of inadvertent ‘homosexual’ contact and a homosexual reading of intimacy is predicated on the denial of (trans)gender identity. It would seem then that the characterisation of trans-cis sexual intimacy as rape-by-fraud is an effect of the vertigo we experience when confronted by the fact of gender variance. Hitchcock, it would seem, has not yet left the building.
Trannsexuals committing rape by fraud is a very serious problem,
Because so many advocates tell them that they do not have to disclose their true identity and the law shields them from prosecution it is very common for victims of their sexual assaults to take matters into their own hands and resort to violence.
You need to stop encouraging this behavior
Why would you want to have sex with someone who doesn’t actually consent anyway?
Joe, under current law (R v McNally [2013]), there is no obligation to disclose this kind of private information. I think the difficulty you have here is that you think there is some ‘core truth’ that remains hidden, when perhaps it is more helpful to view that which is in the open as the truth and consistent with the authentic gender identities of defendants. It is true that violence is an ever-present concern, perhaps especially for trans women. This is another reason for being concerned about disclosure. We should not think that trans people want to have sex with people they know to be transphobic. Rather, it is understandable to have a belief in consent when sexual intimacy is desire-led.
There is a core truth remaining hidden – the biological sex of the partner, which is not a matter of history, but a current state of affairs, fact.
And trans people cannot be unaware of the fact that almost all cisgender people who are not bisexual only wish to have sex with one particular sex. For a cisgender heterosexual woman, for example, she wishes only to have sexual relations with male people. The fact that the word “man” appears to be in process of being re-defined to include females with a male gender identity does not change the central fact that heterosexual women are generally only prepared to have sex with male persons, and would be unlikely to consider a sexual relationship with a female who has a male gender identity, even if the word “man” was to be commonly used to describe such person.
Transgender people as I said are aware of this state of affairs, and are therefore engaging in what most cisgender people would consider a very serious deception, you could say an egregious deception, if they do not disclose their biological status before engaging in sexual relations.
Whether it should be a criminal matter I’m not 100% sure, but I think that as for most cisgender people, this is a deception almost as bad as a deception as to the actual identity of the person, it is justified to keep this within the criminal law.
I am post op ftm birth certificate say I am a woman all my documents say I am a woman . so do I now have to tell my sexual partners my history were has my right to privacy gone ? do I need a written contract to protect my self from accusations of deception before having intercourses with any one ? And as I am bi sexual I suppose I need a few copies to be for the different genders , all the hoops and trials of becoming are self are now being eroded away.sad days
[…] it is questionable whether the “ignorance” of the complainants was caused by “fraud” or instead repressed lesbian desire and parental pressure. In McNally, for example, the defendant claimed the complainant had discovered gender identity […]