We must not uphold gender norms at the expense of human dignity

Sexual intimacy, gender variance and criminal law.

Imagine the following scenario:

A white woman and a man of mixed race, who outwardly appears white, meet in a wine bar. They flirt with each other. The man returns with the woman to her apartment where mutually satisfying sexual intercourse takes place. Subsequently, the woman discovers the mixed-race background of the man and claims to feel violated. She reports the matter to the police and requests that he be charged with rape on the basis of his failure to disclose his racial background.

There are people who would consider a rape charge an appropriate, or at least legitimate, outcome on these facts, and certainly in circumstances where the man was aware in advance of the complainant's feelings. However, for the rest of us, such a suggestion seems not only counter-intuitive, but ludicrous. It is also true to say, as a matter of law, that on such facts a rape or other sexual offence prosecution is highly unlikely ever to be brought and if it were it would certainly fail to secure a conviction. The same is true in relation to non-disclosure of all kinds of other personal facts. Thus facts about a potential sexual partner that might be considered material, but to which no legal consequences attach in the event of non-disclosure, include (in the heterosexual context) prior homosexual or bi-sexual sexual experience, convictions for child abuse and heroin addiction. The list is potentially endless. Indeed, even in the context of HIV positive status, non-disclosure will not serve to vitiate consent in relation to a rape charge1.

Now consider a different scenario:

A woman and a transgender man meet in a wine bar. They flirt with each other. The man returns with the woman to her apartment where mutually satisfying sexual intercourse takes place. Subsequently, the woman discovers the man is transgender and claims to feel violated. She reports the matter to the police and requests that he be charged with rape on the basis of his failure to disclose his gender history.

While I imagine my comments concerning the mixed-race example proved uncontroversial to most, if not all readers, I know from experience that the second scenario is likely to lead to a more complicated and variegated set of emotional responses. The comparison is designed to tease out such differential responses and encourage reflection upon them. And what is at stake for transgender people is a great deal. Conviction on such facts not only leads to loss of liberty, it also serves to call into question the validity or authenticity of something as profoundly personal as gender identity. Nor are these issues hypothetical. In March 2013, two young transgender men, Scott McNally and Chris Wilson, were convicted, in London and Edinburgh respectively, of sexual offences on the basis that they had obtained consent by fraud through failure to disclose their gender history to female sexual partners, and in the case of Chris Wilson, two 15-year-old girls. McNally was sentenced to three years imprisonment while Wilson received three years probation and 240 hours of community service. Both were placed on the Sex Offender’s Register for life.

Yet neither of these young men committed fraud. They identified as men, and had done so from an early age, presented as men and were desired as men. There is nothing fabricated about their feelings or performance of masculinity, or at least none more so than in the case of cisgender men. Fraud, and encroachment on sexual autonomy in any meaningful sense, only becomes intelligible once we deny the gender identities of the male defendants. For those who feel (and it tends to be a matter of feeling) that they have a right to know about the backgrounds of transgender men prior to sexual encounters, they do so because they want to retain the right not to have sexual congress with someone they do not consider to be a man. This view of transgender men as “posing,” “pretending to be” (Mail Online, 21/3/12) or “masquerading as” men (Telegraph, 24/2/13) was extensively reproduced in the press. Yet we live in a society that recognises transgenderism, provides public funding for associated medical needs as well as legal recognition. Indeed, Scott McNally and Chris Wilson have both indicated a desire to undergo reassignment surgery. This state of affairs is undermined by criminal prosecution as it serves to call into question the reality of transgender people’s gender identities.

For those who still see wisdom in prosecuting these types of cases it is important to recognise that disclosure of gender history to a sexual partner would not serve to protect transgender people from prosecution. In practice, it would also be necessary to disclose to the friends and/or family of sexual partners. This is because a transgender person is always vulnerable to the accusation of non-disclosure even where disclosure has actually taken place, and we need to bear in mind the possibility that prosecution might be motivated in these circumstances by a desire to conceal from parents and the world "lesbian" feelings. In the event of false allegation, a cisgender person’s claim that she did not know will be hard to rebut. This is because the view, one reproduced by these legal judgments, that a cisgender person would not knowingly engage in sexual congress with a transgender person, enjoys considerable weight in normative terms. We might call this a kind of "hostage problem". In effect, what law requires is a more generalised form of institutionalised "outing". This is not consistent with promoting the safety of transgender people, especially young transgender people like the defendants in these cases. On the contrary, transgender visibility can, and frequently does, lead to violence, and sometimes deadly violence, as the tragic cases of Brandon Teena and Gwen Araujo testify.

Recognition of these dangers to the physical body needs to be supplemented by recognition of the psychic trauma potentially suffered by transgender people having to disclose their chromosomal status, earlier or present gonadal and/or genital condition as well as a history of coerced gender performance. It is acknowledged that sexual partners who remain unaware of gender history may, upon discovery, experience harm in the form of distress, disgust and/or revulsion. It is not my intention to trivilise these experiences. Nevertheless, these forms of harm ought not to be viewed as justification for state intervention against such a marginalised minority group through the criminal law. This is especially so given that these feelings of disgust only make sense when viewed through the lens of transphobia and/or homophobia, outlooks which are, in turn, legitimised through prosecution and conviction. In this sense, law proves to be implicated in a problem that, should it take any stance, ought to be one of remedial action. It seems unlikely on the facts of these cases that prosecutions would have been brought had the defendants been cisgender. This is true even in regard to those charges relating to minors because the Crown Prosecution Service does not normally prosecute, in the absence of aggravating factors, where consensual sexual activity takes place between young persons who are similar in age. These young men have been punished not, primarily, because of any concern over the sexual autonomy of the complainants, but in order to uphold gender norms, specifically ideas of masculinity and heterosexuality that, in legal hands, prove resistant to including transgender men and treating them with human dignity.

To return to the two scenarios with which we began, it would seem that the intolerance that we rightly bring to expressions of racism in our society deserts us when we are asked to accommodate the fact of gender variance. Of course, transgender men are different from cisgender men and this is so irrespective of whether reassignment surgery has taken place. But multiple differences exist within the group we denote men. In relation to cisgender men, and for that matter cisgender women, we do not require such total transparency of self in the face of negotiating the complexities of the sexual life world. Indeed, given that we all have gender histories but only some of us (transgender people) are required to disclose them, there appears to be a good basis for arguing that a legal requirement to disclose gender history constitutes discrimination contrary to Article 14 of the European Convention on Human Rights. The requirement might also be viewed as an encroachment on the right to privacy guaranteed by Article 8, especially once it is appreciated that disclosure to a sexual partner alone is unlikely, in practical terms, to bring transgender people within the protection of the law. Certainly, the Law Commission appear to think so.2

Alex Sharpe is a Professor of Law at Keele University

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1R v Dica (Mohammed) [2004] EWCA Crim 1103; R v Konzani [2005] EWCA Crim 706. 

2Law Commission, Consent in Sexual Offences: A Policy Paper: Appendix C of Setting the Boundaries (London: Home Office, 2000, para 5.31). 

Keir Starmer, Director of Public Prosecutions. Photograph: Getty Images

Alex Sharpe is a Professor of Law at Keele University.

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We're racing towards another private debt crisis - so why did no one see it coming?

The Office for Budget Responsibility failed to foresee the rise in household debt. 

This is a call for a public inquiry on the current situation regarding private debt.

For almost a decade now, since 2007, we have been living a lie. And that lie is preparing to wreak havoc on our economy. If we do not create some kind of impartial forum to discuss what is actually happening, the results might well prove disastrous. 

The lie I am referring to is the idea that the financial crisis of 2008, and subsequent “Great Recession,” were caused by profligate government spending and subsequent public debt. The exact opposite is in fact the case. The crash happened because of dangerously high levels of private debt (a mortgage crisis specifically). And - this is the part we are not supposed to talk about—there is an inverse relation between public and private debt levels.

If the public sector reduces its debt, overall private sector debt goes up. That's what happened in the years leading up to 2008. Now austerity is making it happening again. And if we don't do something about it, the results will, inevitably, be another catastrophe.

The winners and losers of debt

These graphs show the relationship between public and private debt. They are both forecasts from the Office for Budget Responsibility, produced in 2015 and 2017. 

This is what the OBR was projecting what would happen around now back in 2015:

This year the OBR completely changed its forecast. This is how it now projects things are likely to turn out:

First, notice how both diagrams are symmetrical. What happens on top (that part of the economy that is in surplus) precisely mirrors what happens in the bottom (that part of the economy that is in deficit). This is called an “accounting identity.”

As in any ledger sheet, credits and debits have to match. The easiest way to understand this is to imagine there are just two actors, government, and the private sector. If the government borrows £100, and spends it, then the government has a debt of £100. But by spending, it has injected £100 more pounds into the private economy. In other words, -£100 for the government, +£100 for everyone else in the diagram. 

Similarly, if the government taxes someone for £100 , then the government is £100 richer but there’s £100 subtracted from the private economy (+£100 for government, -£100 for everybody else on the diagram).

So what implications does this kind of bookkeeping have for the overall economy? It means that if the government goes into surplus, then everyone else has to go into debt.

We tend to think of money as if it is a bunch of poker chips already lying around, but that’s not how it really works. Money has to be created. And money is created when banks make loans. Either the government borrows money and injects it into the economy, or private citizens borrow money from banks. Those banks don’t take the money from people’s savings or anywhere else, they just make it up. Anyone can write an IOU. But only banks are allowed to issue IOUs that the government will accept in payment for taxes. (In other words, there actually is a magic money tree. But only banks are allowed to use it.)

There are other factors. The UK has a huge trade deficit (blue), and that means the government (yellow) also has to run a deficit (print money, or more accurately, get banks to do it) to inject into the economy to pay for all those Chinese trainers, American iPads, and German cars. The total amount of money can also fluctuate. But the real point here is, the less the government is in debt, the more everyone else must be. Austerity measures will necessarily lead to rising levels of private debt. And this is exactly what has happened.

Now, if this seems to have very little to do with the way politicians talk about such matters, there's a simple reason: most politicians don’t actually know any of this. A recent survey showed 90 per cent of MPs don't even understand where money comes from (they think it's issued by the Royal Mint). In reality, debt is money. If no one owed anyone anything at all there would be no money and the economy would grind to a halt.

But of course debt has to be owed to someone. These charts show who owes what to whom.

The crisis in private debt

Bearing all this in mind, let's look at those diagrams again - keeping our eye particularly on the dark blue that represents household debt. In the first, 2015 version, the OBR duly noted that there was a substantial build-up of household debt in the years leading up to the crash of 2008. This is significant because it was the first time in British history that total household debts were higher than total household savings, and therefore the household sector itself was in deficit territory. (Corporations, at the same time, were raking in enormous profits.) But it also predicted this wouldn't happen again.

True, the OBR observed, austerity and the reduction of government deficits meant private debt levels would have to go up. However, the OBR economists insisted this wouldn't be a problem because the burden would fall not on households but on corporations. Business-friendly Tory policies would, they insisted, inspire a boom in corporate expansion, which would mean frenzied corporate borrowing (that huge red bulge below the line in the first diagram, which was supposed to eventually replace government deficits entirely). Ordinary households would have little or nothing to worry about.

This was total fantasy. No such frenzied boom took place.

In the second diagram, two years later, the OBR is forced to acknowledge this. Corporations are just raking in the profits and sitting on them. The household sector, on the other hand, is a rolling catastrophe. Austerity has meant falling wages, less government spending on social services (or anything else), and higher de facto taxes. This puts the squeeze on household budgets and people are forced to borrow. As a result, not only are households in overall deficit for the second time in British history, the situation is actually worse than it was in the years leading up to 2008.

And remember: it was a mortgage crisis that set off the 2008 crash, which almost destroyed the world economy and plunged millions into penury. Not a crisis in public debt. A crisis in private debt.

An inquiry

In 2015, around the time the original OBR predictions came out, I wrote an essay in the Guardian predicting that austerity and budget-balancing would create a disastrous crisis in private debt. Now it's so clearly, unmistakably, happening that even the OBR cannot deny it.

I believe the time has come for there be a public investigation - a formal public inquiry, in fact - into how this could be allowed to happen. After the 2008 crash, at least the economists in Treasury and the Bank of England could plausibly claim they hadn't completely understood the relation between private debt and financial instability. Now they simply have no excuse.

What on earth is an institution called the “Office for Budget Responsibility” credulously imagining corporate borrowing binges in order to suggest the government will balance the budget to no ill effects? How responsible is that? Even the second chart is extremely odd. Up to 2017, the top and bottom of the diagram are exact mirrors of one another, as they ought to be. However, in the projected future after 2017, the section below the line is much smaller than the section above, apparently seriously understating the amount both of future government, and future private, debt. In other words, the numbers don't add up.

The OBR told the New Statesman ​that it was not aware of any errors in its 2015 forecast for corporate sector net lending, and that the forecast was based on the available data. It said the forecast for business investment has been revised down because of the uncertainty created by Brexit. 

Still, if the “Office of Budget Responsibility” was true to its name, it should be sounding off the alarm bells right about now. So far all we've got is one mention of private debt and a mild warning about the rise of personal debt from the Bank of England, which did not however connect the problem to austerity, and one fairly strong statement from a maverick columnist in the Daily Mail. Otherwise, silence. 

The only plausible explanation is that institutions like the Treasury, OBR, and to a degree as well the Bank of England can't, by definition, warn against the dangers of austerity, however alarming the situation, because they have been set up the way they have in order to justify austerity. It's important to emphasise that most professional economists have never supported Conservative policies in this regard. The policy was adopted because it was convenient to politicians; institutions were set up in order to support it; economists were hired in order to come up with arguments for austerity, rather than to judge whether it would be a good idea. At present, this situation has led us to the brink of disaster.

The last time there was a financial crash, the Queen famously asked: why was no one able to foresee this? We now have the tools. Perhaps the most important task for a public inquiry will be to finally ask: what is the real purpose of the institutions that are supposed to foresee such matters, to what degree have they been politicised, and what would it take to turn them back into institutions that can at least inform us if we're staring into the lights of an oncoming train?