Xiyu Zhu and Adeline Chow are two undergraduate students at Durham Law School. Here they review a seminar given by Professor Alex Sharpe in May 2016.
Professor Alex Sharpe from Keele University addressed sexual offence prosecutions based on “gender fraud” in the context of cis-trans sexual intimacy in her recent talk at Durham University. In the seminar, organized by GLAD (@DurhamGLAD), she discussed successful sexual offence prosecutions brought against young transgender men over the last four years. In these cases, the female cisgender partners, allegedly, were unaware of the defendants’ gender histories. Sharpe challenges the legitimacy of “gender fraud” prosecution, questioning the underlying cisnormative assumptions that ground it, and critiques criminalization as a legal response.
Sharpe primarily focuses on three “gender fraud” cases from the UK: R v. Wilson, R v. Mason and R v. McNally. In these cases, the defendants were transgender men who were designated female at birth. Importantly, Sharpe notes that following R v Barker 2012 kissing, without any form of coercion, is sufficient for convictions. Furthermore, so far no prosecution has been brought against a transgender woman in the UK, perhaps because upon discovery of the gender histories of their sexual partners, cisgender male complainants often resort to unilateral and extra-legal responses.
Prosecution Legitimacy: Cisnormative Perception
Sharpe identifies three underlying cisnormative assumptions that confer legitimacy on “gender fraud” prosecution: the consent claim, the harm claim and the deception claim. Importantly, she recognizes these assumptions are informed by a cisnormative worldview perspective. First, according to the consent claim, failure to disclose gender history serves to vitiate consent. Informed consent is premised on the right of sexual autonomy. But Sharpe considers gender identity is typically in the open and a further requirement of disclosure of body and/or history dismisses the self-determination (and privacy) of transgender people. Construction of legal right in this context amounts to a legal sanction to define others against their will and thus represents an “ontological degradation” of transgender people. Further, “gender fraud” prosecution assumes inadvertent sexual intimacy with transgender people is harmful, however one should not rush to conclude the threshold of harm is so easily satisfied for the purpose of criminalization. The “harm”, subsequent distress, disgust or revulsion, is often a result of systemic transphobia or homophobia – that is, the harm to the complainant comes from finding out that they have had sexual contact with someone designated the same sex as them at birth. The third assumption is that non-disclosure of gender history is deceptive. However, having examined the case law, Sharpe concludes the automatic presumption that cisgender complaints are unaware of the sexual history of transgender men is implausible. In these particular cases, transgender men had not undertaken reassignment surgery or hormonal treatment at the time of the sexual acts. Thus 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 before they met.
Overall, the “gender fraud” basis for conviction is strongly shaped by an understanding of gender identity as binary, which can lead to a number of injustices for already discriminated-against trans people.
Arguments against Criminalization
To justify criminalization, concession of cisnormative assumptions concerning consent, harm and knowledge alone is not enough, and additional harm and culpability need to be demonstrated. Due to the harsh consequence of criminalization, all relevant considerations have to be made. Firstly, Sharpe argues that the criminalization of non-disclosure of gender history produces legal inconsistency and is potentially discriminatory. The prosecution of sexual offences on the basis of fraud is rare under English law. A wide range of facts, such as age, racial status, drug addiction, etc., might be pertinent for sexual partners. The list is potentially “endless”. Sharpe notes that English law generally recognizes the validity of consents, but does not do so in the context of gender history. This inconsistency constitutes discrimination under Article 8 (right to respect of private and family law) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights. Arguably, gender history might be more important to sexual partners than other facts, though Sharpe notes this is an empirical question. The concern here should be on “definition” rather than “knowledge”: gender identity should be self-determined, not limited by birth-designated sex or through erecting hierarchies of men and women.
Further, Sharpe argues criminalization is inappropriate because sexual autonomy is not an absolute right. This is a controversial matter, perhaps tantamount to feminist heresy. In the context of rape-by-force, there is no doubt the right not to associate trumps the right to associate. In relation to cis-trans intimacy, however, Sharpe contends the engagement of a balancing act is necessary to justify criminalization, and criminalization should only be supported when the actual or potential harm suffered by cisgender people is significant and outweighs the harm suffered by transgender people. The privacy right of transgender people under Article 8 of ECHR must be considered. After all, the disclosure of gender history concerns highly personal and private information. Sharpe also questions whether actual harm flows from non-disclosure. Whilst many complainants report in court that they suffer “distress, disgust or revulsion”, it is questionable whether these feelings fall in the category of harm or amounts to mere offence. From the perspective of transgender people, Sharpe highlights the harm suffered in relation to disclosure. Disclosure of sexual history exposes transgender people to well-documented physical risks, and often impacts them psychologically and emotionally: the history of coerced gender performance can be a source of pain and trauma. After exercising the balancing act, Sharpe criticizes criminal intervention based on repulsive feelings conditioned by systemic transphobia or homophobia.
Lastly, Sharpe considers the compelling public policy reasons against criminalization and the interest of the State to in reducing transphobia. By drawing an analogy between non-disclosure of gender history and non-disclosure of racial status, Sharpe highlights the discrepancy in the treatment of transphobia and racism in the context of sexual intimacy. The current approach of the courts contradicts the legislative aim of combating transphobia, perpetuating, as it does, the view that a transgender man is not a man.
Sharpe concludes that a focus on criminalisation is inadequate; activists and scholars need to combat the view that non-disclosure of gender history is unethical and probe more deeply the question of sexual ethics