Consent to sex, deception, and the prosecution of trans people

You are a trans woman. You get chatting to someone in a bar, and go off to a dark corner to make out. Then they shout, “Ew, gross, you’re a man!” Could you be prosecuted for sexual assault?

In the case of Justine McNally, the Court of Appeal said deception as to gender can vitiate consent to sexual activity. In that case, Justine met her victim online, using a male avatar. She insisted her victim was blindfolded when they met, and had sex using a prosthesis. She did not claim to be trans. It was a highly unusual case.

The court said deception as to “gender”, but the basis was that sex with a penis is thought to be different to sex with a vulva. Arguably it is- most people would say they would prefer one to the other. So if someone is deceived, they might object.

The Crown Prosecution Service is consulting on its legal guidance on deception as to gender. Does that put trans people at risk? If I say I am a woman, does that mean anyone has a legal right to expectation about my genitals? Touching is sufficient to be sexual assault if there is insufficient consent. Do you have to say “I’m trans” before you kiss at the end of a first date? Separately, is sex with a home-grown vagina sufficiently different from a surgically constructed one to put trans people at risk of prosecution?

According to the draft guidance, only deliberate deception by the accused will vitiate consent and make sexual contact a criminal sexual assault. A mere misunderstanding will not be criminal. Trans people should be reassured. When I say I am a woman I am not deliberately deceiving anyone.

Other consultations have been about what people want the law to be, for example on gender recognition. This consultation is about how to explain what the law is. So to answer, you need legal expertise, though possibly expertise on the psychology of trans people might be relevant. I don’t think it will matter if an anti-trans campaigning organisation gets a mass write-in saying all trans people are frauds: the CPS should give most weight to those answers which analyse the law and psychology of trans persuasively, and multiplying responses with the same answer should not have an effect. I would not advise anyone to answer unless they have relevant expertise.

I hate question 2 of the consultation. It says, “When considering the factors that are relevant to prove deception and lack of consent, does the guidance strike the right balance between recognising the rights of trans persons to live fully in their new gender identity and the need not to put an undue onus on complainants to discover or confirm the gender status of the suspect?”

I answer,

I reject the basis of this question. The basis of this guidance is that there was sexual conduct and apparent consent at the time. The consent was vitiated by deception. A trans woman is entitled to say she is a woman. If the other party disagrees that trans women are women, they should have made that completely clear if the trans person is to be prosecuted.

Anyone is entitled to wear what they want. In the case of Fair Play for Women Ltd v Registrar General for Scotland, the Court of Session ruled that a trans man who says he is a man is not lying. This is a common sense response which the English courts should find persuasive.

So, on a date, if a trans woman is asked “Are you a man or a woman?” she should be entitled to reply “I am a woman” even if it is the first time she has expressed female in public.

People can wear what they like and use whatever name they like. If two people like the look of each other on the dance floor and embrace, it is not fraud even if one is a man, who has no thought of being a trans woman or nonbinary, wearing a dress. If the other thought he was a cis woman, it is at worst an innocent misunderstanding. I cannot be responsible for other people’s perceptions of me, unless I intend to deceive them.

As the draft guidance states, in deciding whether there is deception rather than honest mistake or misunderstanding there should be an offender-centric approach. Only deliberate deception should vitiate consent such that the alleged offender is criminal.

Some people get very worked up about biological sex. For example, the “LGB Alliance” insists that trans women cannot be lesbians. However, mainstream LGBT groups accept that trans women can be lesbians. Trans people should not be criminalised just because they did not know their alleged victim believed trans women were not really women.

It follows that there is only deliberate deception relevant to consent if the alleged victim asked, “Is your gender the same as your sex assigned at birth?” and a trans person answers that question falsely. Honest mistake or misunderstanding about gender should not vitiate consent such that a person is prosecuted.

If someone feels I have sexually assaulted them, and would have consented to sexual touching with me if I had been a cis woman, they should make their objection to my trans status absolutely clear. I am a woman. I can wear what I like.

However, I would argue that while the law has stated that sex with one kind of genitals is different from sex with the other, the difference between naturally grown and surgically constructed genitals is not sufficient to make deception a criminal assault.

What about people who are exploring their gender identity? There is a great deal of hostility to trans people, shown in The Times, The Daily Mail, and the speeches of current and former members of the Cabinet. Trans people undergo a long period of questioning themselves- am I trans enough to transition? I hoped the answer to that question was “No”. I thought transition would mean I would lose my job and my family. And yet I explored the possibility of transition, by going out expressing myself female.

So the question on deception is not, is this person trans, evidenced as “The steps the suspect has taken to live consistent with their gender identity”. During an exploration, a person might have told no-one and only bought a few clothes. They might say “I am a woman” just to see how it felt to say it.

Nobody should be prosecuted because they were exploring their gender identity. Police interrogation should recognise the vulnerability of such people, with questions such as, “Are you exploring the possibility that you are trans or nonbinary, or have a [fe]male gender identity?”

For someone exploring gender identity, an accusation of sexual assault by deception would be absolutely terrifying, and may make the person resolve to attempt again to live in the sex assigned at birth. Such decisions blight lives.

Now I go into the weeds, answering about the text of the guidance.

The introduction gives an alleged distinction between “sex” and “gender” which has not been tested in court, and which would if adopted raise profound questions about the interpretation of the Equality Act and other statutes. It is irrelevant. An alleged victim might consider that they only want to have sex with someone assigned female at birth, but whether there is deliberate deception such as to vitiate consent has no relevance to this alleged distinction.

The introduction should read, “Deception as to gender may be relevant to the issue of whether consent to sexual activity was vitiated. Cases in which deception as to gender is a live issue may involve a suspect whose gender identity may differ from the sex they were assigned at birth.” The bold word “may” has been added.

Under the heading “Gender dysphoria”, paragraph one is inaccurate according to the International Classification of Diseases.

Under the heading “Gender Recognition Act”, after “under s9 GRA, where a GRC is issued, the person’s gender becomes for all purposes the affirmed gender”, add, “and the person’s sex becomes the affirmed sex, different to the sex assigned at birth”. See s9(1). Because of the Scottish case of “Fair Play for Women”, add, “However a trans man saying he is a man is telling the truth, whatever his legal sex or gender”.

The following paragraph gives far too much weight to lack of a GRC. Most trans people do not have a GRC. Delete, and replace with the following: “Most trans people do not have a gender recognition certificate. A GRC is conclusive evidence that a trans woman is entitled to say she is a woman, but trans women are entitled to say they are women even if they do not have a GRC.”

Under the heading “Has there been active or deliberate deception?” the first sentence reads, “If a suspect genuinely perceives their gender identity to be different to their birth assigned sex or if their gender identity is in a state of flux and/or emerging, this may be evidence there was not a deliberate deception.” This is too narrow. Amend to, “If a suspect’s gender identity is different to their birth assigned sex or if they are questioning or exploring their gender identity, this is evidence there was not a deliberate deception unless the suspect made a false claim about their sex assigned at birth.”

In the sentence beginning “Gender identity can be fluid or emergent” delete the phrase “particularly young persons”. People transition, and explore their gender identity, at all stages of life. Before such exploration trans people may be terrified of transition and in denial.

In the bullet point below, anyone may wear what they like. People play with gender expression. Amend to, “Expressing gendered speech, dress or mannerisms different to the sex assigned at birth is not deception unless there is a deliberate intent to make someone believe that the person had a different sex assigned at birth.”

In the next point, it is not only safety considerations that stop a trans person living full time. We take time preparing to transition. The sentence should read, “There are many reasons why trans people may not always be living in their true gender identity” without further qualification.

The next point does not go far enough. The question is, what did the alleged offender believe at the time of the alleged deception? Their presentation cannot by itself be criminal deception: anyone can wear what they like. Only stating their sex or gender untruthfully could be criminal. Replace: “If at the time of the offence the person believed they were trans, or were exploring their gender identity, it is not deliberate deception for them to state their gender is the gender they were exploring.”

Because it is legal to explore gender identity, this sentence should be amended: “There is no duty to disclose gender history, but in some circumstances suspects who are living in a new gender identity at the time of the alleged offending (as opposed to falsely purporting to be a different gender), including those who have obtained a GRC, may still be capable of actively deceiving a complainant as to such matters relating to their gender.” Delete “are living in a new”, and replace by “are expressing a particular gender identity”. It is not how they are living full time but how they are expressing at the time of the alleged offence that is relevant. Delete the final word “gender” and replace with “sex assigned at birth”.

Also, delete the words in brackets, “(as opposed to falsely purporting to be a different gender)”. Anyone can wear what they like. Anyone might play with gender or gender stereotypes as a part of self-exploration, not just a separate class of trans people. Dress or mannerisms should not by themselves create an expectation about the person’s genitals.

This should be sufficient to defend trans or questioning people from prosecution. I do not want to defend anyone who would conduct a deliberate deception, or who would engage in sexual activity without the unforced, willing participation of the other.

Under the heading “Did the suspect reasonably believe that the complainant consented”, it says, the suspect might believe the complainant was not deceived. That is, if you don’t think you pass you may believe that the other is not deceived, even if you lied about your trans status. But I would not advise anyone to lie about trans status if asked specifically by a potential sexual partner.

The heading “Age and maturity of the suspect” does not take into account the vulnerability of the person exploring gender identity, who may be of any age. Add a relevant factor:

The vulnerability of a suspect exploring gender identity, such as past aversion therapy, or religious belief prompting the person to attempt to suppress their gender identity.

I hope someone accused of sexual assault would have legal representation, even (!) Legal Aid. Remember that this guidance is from the POV of the prosecutor. An average criminal defence lawyer should be able to get any such charges dismissed.

2 thoughts on “Consent to sex, deception, and the prosecution of trans people

  1. What next? Demanding your date being prosecuted because because they lied about the natural colour of their hair only for you to discover that their hair “down there” was different? There can be a multitude of reasons why one might find their partner unappealing after intimacy begins. Once consent is given, surely it remains so until one partner withdraws consent or the situation changes so than a new consent is required. I would have thought discovering your partner was trans when you thought otherwise (or visa versa for that matter) would have fallen into the latter.

    Liked by 1 person

    • The thing is, the law considers that sex with female genitals is different from sex with male genitals. But I say clothes and the statement “I am a woman” gives the other no right to expect one set rather than the other, leave alone home grown rather than post-operative.

      added: having written 2000 words about the consultation, I understand better. The law says that sex with a penis is qualitatively different from sex with a vulva. Someone with a right to expect one might say they were deceived if they find the other. But there is no right to expect either. Anyone can wear what they like, and trans women (who do actually pass occasionally, and may pass better if the other person is drunk) are entitled to say we are women. So we are not deliberately deceiving anyone, simply by not disclosing our trans status.

      No-one wanting sex with me has a right to expect I have a natural vagina, simply because I say I am a woman or wear a skirt. Trans people do not unlawfully deceive anyone.

      There has been no case, but I would argue sex with a surgically constructed vulva or penis is not sufficiently different from sex with a naturally grown one to make it unlawful deception not to disclose you have had surgery. Having genital surgery no more creates a duty to disclose than having breast enhancement or dying your hair in order to appear more attractive.

      The consultation is about how to express what the law actually is, rather than what it should be. So it requires legal expertise to answer it. It is worth answering, for trans barristers, and psychologists might have useful input.

      The McNally case is a totally weird one-off. Don’t demand that your partner is always blindfolded, might be one takeaway from it. Perhaps the accused simply had inadequate lawyers.

      Liked by 1 person

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