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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Air pollution: 5 steps to vanquishing an invisible killer

A new report looks at the economics of air pollution. 

110, 150, 520... These chilling statistics are the number of deaths attributable to particulate air pollution for the cities of Southampton, Nottingham and Birmingham in 2010 respectively. Or how about 40,000 - that is the total number of UK deaths per year that are attributable the combined effects of particulate matter (PM2.5) and Nitrogen Oxides (NOx).

This situation sucks, to say the very least. But while there are no dramatic images to stir up action, these deaths are preventable and we know their cause. Road traffic is the worst culprit. Traffic is responsible for 80 per cent of NOx on high pollution roads, with diesel engines contributing the bulk of the problem.

Now a new report by ResPublica has compiled a list of ways that city councils around the UK can help. The report argues that: “The onus is on cities to create plans that can meet the health and economic challenge within a short time-frame, and identify what they need from national government to do so.”

This is a diplomatic way of saying that current government action on the subject does not go far enough – and that cities must help prod them into gear. That includes poking holes in the government’s proposed plans for new “Clean Air Zones”.

Here are just five of the ways the report suggests letting the light in and the pollution out:

1. Clean up the draft Clean Air Zones framework

Last October, the government set out its draft plans for new Clean Air Zones in the UK’s five most polluted cities, Birmingham, Derby, Leeds, Nottingham and Southampton (excluding London - where other plans are afoot). These zones will charge “polluting” vehicles to enter and can be implemented with varying levels of intensity, with three options that include cars and one that does not.

But the report argues that there is still too much potential for polluters to play dirty with the rules. Car-charging zones must be mandatory for all cities that breach the current EU standards, the report argues (not just the suggested five). Otherwise national operators who own fleets of vehicles could simply relocate outdated buses or taxis to places where they don’t have to pay.  

Different vehicles should fall under the same rules, the report added. Otherwise, taking your car rather than the bus could suddenly seem like the cost-saving option.

2. Vouchers to vouch-safe the project’s success

The government is exploring a scrappage scheme for diesel cars, to help get the worst and oldest polluting vehicles off the road. But as the report points out, blanket scrappage could simply put a whole load of new fossil-fuel cars on the road.

Instead, ResPublica suggests using the revenue from the Clean Air Zone charges, plus hiked vehicle registration fees, to create “Pollution Reduction Vouchers”.

Low-income households with older cars, that would be liable to charging, could then use the vouchers to help secure alternative transport, buy a new and compliant car, or retrofit their existing vehicle with new technology.

3. Extend Vehicle Excise Duty

Vehicle Excise Duty is currently only tiered by how much CO2 pollution a car creates for the first year. After that it becomes a flat rate for all cars under £40,000. The report suggests changing this so that the most polluting vehicles for CO2, NOx and PM2.5 continue to pay higher rates throughout their life span.

For ClientEarth CEO James Thornton, changes to vehicle excise duty are key to moving people onto cleaner modes of transport: “We need a network of clean air zones to keep the most polluting diesel vehicles from the most polluted parts of our towns and cities and incentives such as a targeted scrappage scheme and changes to vehicle excise duty to move people onto cleaner modes of transport.”

4. Repurposed car parks

You would think city bosses would want less cars in the centre of town. But while less cars is good news for oxygen-breathers, it is bad news for city budgets reliant on parking charges. But using car parks to tap into new revenue from property development and joint ventures could help cities reverse this thinking.

5. Prioritise public awareness

Charge zones can be understandably unpopular. In 2008, a referendum in Manchester defeated the idea of congestion charging. So a big effort is needed to raise public awareness of the health crisis our roads have caused. Metro mayors should outline pollution plans in their manifestos, the report suggests. And cities can take advantage of their existing assets. For example in London there are plans to use electronics in the Underground to update travellers on the air pollution levels.

***

Change is already in the air. Southampton has used money from the Local Sustainable Travel Fund to run a successful messaging campaign. And in 2011 Nottingham City Council became the first city to implement a Workplace Parking levy – a scheme which has raised £35.3m to help extend its tram system, upgrade the station and purchase electric buses.

But many more “air necessities” are needed before we can forget about pollution’s worry and its strife.  

 

India Bourke is an environment writer and editorial assistant at the New Statesman.