Alex Sharpe is a professor at Keele University School of Law. She has been involved in transgender law reform and activism for over twenty years, and has written extensively on the criminalisation of so-called ‘gender fraud’ under the Sexual Offences Act. Alex has recently been interviewed by CBC Radio Canada on the Gayle Newland case, together with Professor Madden Demsey. Her interview can be found here.
On 15th September, Gayle Newland was convicted of three counts of sexual assault under the Sexual Offences Act 2003. She is currently awaiting sentence, though a custodial term has been indicated. The case is the latest in a series of so-called, and so far successful, ‘gender fraud’ based prosecutions that have come before English (R v Barker  (unrep); R v McNally  EWCA Crim 1051) and Scottish (R v Wilson  (unrep)) courts. Barker and McNally received significant custodial sentences and all convicted defendants have been placed on the Sexual Offenders Register for life.
Most of the media and legal coverage of the Newland case, like the cases of Barker, McNally and Wilson before it, has tended, unproblematically, to reproduce a fraud narrative, rather than challenge the ideological underpinnings of a worldview that makes fraud such an easy conclusion for courts and juries to draw. Of course, prosecution for ‘gender fraud’ is deeply troubling for other reasons. In the first place, prosecutions can be viewed as a significant example of criminal law overreach. That is, and irrespective of where we determine consent to end or deception to begin, the use of the criminal law to regulate deceptive, as opposed to coercive, sexual relations, can be viewed as an overly draconian and counter-productive measure.
Draconian because it is disproportionate, out of step with community sentiment and unsupported by clear evidence of deception-related harms. Counter-productive because the values the criminal law seeks to protect through prosecution, especially sexual autonomy and gender equality, are as likely to be subverted as fostered through prosecution. Indeed, in this latter respect, legal recognition of imagined harms arising out of ‘inadvertent’ sexual contact with transgender or gender queer people, implicates the liberal state in homophobia and/or transphobia.
It is also the case that prosecution, through singling out gender as the type of information that demands disclosure, has fallen disproportionately, and so far, exclusively, on the LGBT community. It should be recognised that non-disclosure of, or lying about, past sexual experience, previous convictions, mixed-race status, religious faith, wealth and an endless list of other things has not led to criminal prosecution in the UK, albeit that such information might be considered material to potential complainants. Moreover, the courts, most recently in McNally, have indicated that the criminal law should not, as a matter of ‘common sense,’ extend to such conduct. It is also important to stress that in many of the cases prosecuted, fraud claims have been contested by defendants and, more importantly, that a willingness to believe complainant versions of the facts requires, to say the least, a suspension of disbelief rarely entertained by courts and juries.
In this article, I do not intend to focus on these important objections. Rather, I want to consider the more difficult question, somewhat elided in the cases and the wider public discussion concerning the appropriateness of prosecution, namely: what does it mean precisely to say that a gender-based fraud has been perpetrated and why does such a conclusion appear to accord so readily with judicial ‘common sense’? This is an especially important question for sexually active transgender and gender queer people and the article will emphasise the precarious position of these groups under current law.
Before proceeding further, elaboration is required concerning the distinction between non-disclosure of information and lying. Not only because some people might think the distinction ethically significant, but because the English courts have relied on the distinction in justifying convictions. Thus, while the Scottish court in Wilson, found non-consent and deception to be established on the basis of non-disclosure of information (gender history) alone, the English Court of Appeal in McNally required ‘active deception’ to produce these effects. Accordingly, on the face of things, at least under English law, the prosecution must prove something more than ‘mere’ (disclosing gender history is hardly a trivial matter for transgender people) non-disclosure of information. What exactly all this means for transgender and gender queer people however, is less than clear because, in these particular contexts, the distinction between act and omission tends to collapse. In order to appreciate the kind of problems gender fraud-based prosecutions can produce, let us consider two scenarios:
- Jill, a cisgender woman, meets Jack, a transgender man, online. A romantic relationship develops. After a period of months/years they meet in person. Jack does not disclose his gender history. He tells Jill that he wishes to marry and have children with her. He also expresses his desire to penetrate her and on one occasion, and in the presence of Jill, purchases condoms. Jack and Jill become sexually intimate on multiple occasions. On at least one occasion, Jack penetrates Jill by means of a prosthetic device. At all times, Jill assumes Jack to be a cisgender man.
- Alice, a cisgender woman, meets Sam, a female-bodied gender queer person, in a bar. Alice identifies as straight but is drawn to the somewhat ambiguous and feminine masculinity of Sam. Alice assumes that Sam is a cisgender man and in conversation uses male prounouns by way of address. Sam does nothing to correct Alice, feeling comfortable with the use of male pronouns. Alice and Sam become sexually intimate and Sam digitally penetrates Alice.
The scenarios of Jack and Jill (which is based largely on the facts of McNally) and Sam and Alice raise important questions regarding founding liability. While I appreciate that some readers would want to know the gender history and gender queer status of Jack and Sam respectively in these two scenarios, it is far from clear that fraud has occurred, especially under English law.
We might wonder how the courts would decide the case of Jack and Jill. Can it really be said that Jack is ‘actively deceptive’? Certainly, non-disclosure alone does not invalidate consent under English law. And, even if it did, it would still be necessary to show that Jack appreciated the importance of cisgender male status to Jill, for deception to be established. Of course, a court might draw the conclusion that Jack must have appreciated the importance of this fact to Jill. To insist on this however, is tantamount to denying the authenticity of the self-confident transgender man. For Jack to have necessarily appreciated Jill’s concerns, we would have to render all trans men as self-loathing – as people who could never have a positive self-perception of themselves as men, as attractive, as desirable to cisgender women, something which, of course, flies in the face of empirical reality. In relation to specific statements made by Jack, a conclusion of deception is not the only one available. Thus, Jack expressed a desire to marry and have children with Jill. After he acquires a Gender Recognition Certificate he would be able to marry Jill and the couple could have children either through IVF or adoption. His statement regarding penetration is not rendered untrue or deceptive simply because Jill assumed him to be referring to a penis, rather than a prosthetic device, which for some trans men is a semantic difference. Finally, while a court might (and in McNally did) interpret condom purchase as indicative of the presence of a penis, and therefore deceit, purchase might also be viewed as consistent with the hygienic use of a prosthetic device.
Turning to the case of Alice and Sam, would the courts arrive at a conclusion of ‘active deception’? And, if so, what feature of the scenario would the courts enlist to that end? It is hard, I think, to identify anything more than omission here. Perhaps a court would find deception in a gender queer performance. However, to do so would produce the effect, not of espousing the value of sexual autonomy, but of denying the validity of gender identities that lie outside a gender binary. Moreover, prosecution on these facts also appears problematic in that the gap between Jill’s assumption and expectation on the one hand, and reality on the other, appears central to her desire. Why, we might ask, should cisgender people be able to disavow through the criminal justice system, desire-led intimacy, especially in circumstances where gender dissonance appears to have contributed to the constitution of the complainant’s desire?
The difficulty with these scenarios, and the actual cases that have come before the courts, is the way that the criminal justice process denies the complexity of both gender and sexual desire. The judicial idea of ‘active deception’ is especially problematic in the context of transgender and gender queer people because, in cultural terms, transgender and gender queer are readily understood as synonyms for duplicity, subterfuge and dissimulation. To rely on what is, in effect, a defence of ‘mere’ non-disclosure is likely to be a doomed strategy. After all, any statement, gesture or gender performance is always likely to be interpreted as inauthentic and deceptive when cisnormativity provides the backdrop to judicial and jury interpretation. What we have, at least in the hypothetical cases of Jack and Jill and Alice and Sam, is not deceit, but disappointment. Indeed, in the seventeenth century, and as noted by Adam Phillips, the word ‘deceive’ bore both meanings: ‘to trick’ and ‘to disappoint.’ What we are witnessing, in the context of the so-called ‘gender fraud’ cases, is the translation of disappointment into deceit and therefore blame, and it is something we, as a society, ought to strenuously resist.
 Barker received a custodial sentence of thirty months, McNally, a custodial sentence of three years, and Wilson, three years probation and 240 hours of community service.
 Sentencing judgment of Lord Banatyne.
 Adam Phillips, Missing Out: In Praise of the Unlived Life (London: Penguin, 2013) p. 4.