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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The dog at the end of the lead may be small, but in fact what I’m walking is a hound of love

There is a new, hairy face in the Hovel.

There is a new, hairy face in the Hovel. I seem to have become a temporary co-owner of an enthusiastic Chorkie. A Chorkie, in case you’re not quite up to speed with your canine crossbreeds, is a mixture of a chihuahua and a Yorkshire Terrier, and while my friend K— busies herself elsewhere I am looking after this hound.

This falls squarely into the category of Things I Never Thought I’d Do. I’m a cat person, taking my cue from their idleness, cruelty and beauty. Dogs, with their loyalty, their enthusiasm and their barking, are all a little too much for me, even after the first drink of the day. But the dog is here, and I am in loco parentis, and it is up to me to make sure that she is looked after and entertained, and that there is no repetition of the unfortunate accident that occurred outside my housemate’s room, and which needed several tissues and a little poo baggie to make good.

As it is, the dog thinks I am the bee’s knees. To give you an idea of how beeskneesian it finds me, it is licking my feet as I write. “All right,” I feel like saying to her, “you don’t have to go that far.”

But it’s quite nice to be worshipped like this, I have decided. She has also fallen in love with the Hovel, and literally writhes with delight at the stinky cushions on the sofa. Named after Trude Fleischmann, the lesbian erotic photographer of the Twenties, Thirties and Forties, she has decided, with admirable open-mindedness, that I am the Leader of the Pack. When I take the lead, K— gets a little vexed.

“She’s walking on a loose lead, with you,” K— says. “She never does that when I’m walking her.” I don’t even know what that means, until I have a think and work it out.

“She’s also walking to heel with you,” K— adds, and once again I have to join a couple of mental dots before the mists part. It would appear that when it comes to dogs, I have a natural competence and authority, qualities I had never, not even in my most deranged flights of self-love, considered myself to possess in any measurable quantity at all.

And golly, does having a dog change the relationship the British urban flâneur has with the rest of society. The British, especially those living south of Watford, and above all those in London, do not recognise other people’s existence unless they want to buy something off them or stop them standing on the left of the sodding escalator, you idiot. This all changes when you have a dog with you. You are now fair game for any dog-fancier to come up to you and ask the most personal questions about the dog’s history and genealogy. They don’t even have to have a dog of their own; but if you do, you are obliged by law to stop and exchange dog facts.

My knowledge of dog facts is scant, extending not much further beyond them having a leg at each corner and chasing squirrels, so I leave the talking to K—, who, being a friendly sort who could probably talk dog all day long if pressed, is quite happy to do that. I look meanwhile in a kind of blank wonder at whichever brand of dog we’ve just encountered, and marvel not only at the incredible diversity of dog that abounds in the world, but at a realisation that had hitherto escaped me: almost half of London seems to have one.

And here’s the really interesting thing. When I have the leash, the city looks at me another way. And, specifically, the young women of the city. Having reached the age when one ceases to be visible to any member of the opposite sex under 30, I find, all of a sudden, that I exist again. Women of improbable beauty look at Trude, who looks far more Yorkie than chihuahua, apart from when she does that thing with the ears, and then look at me, and smile unguardedly and unironically, signalling to me that they have decided I am a Good Thing and would, were their schedules not preventing them, like to chat and get to know me and the dog a bit better.

I wonder at first if I am imagining this. I mention it to K—.

“Oh yes,” she says, “it’s a thing. My friend P-J regularly borrows her when he wants to get laid. He reckons he’s had about 12 shags thanks to her in the last six months. The problems only arise when they come back again and notice the dog isn’t there.”

I do the maths. Twelve in six months! That’s one a fortnight. An idea begins to form in my mind. I suppose you don’t have to be a rocket scientist to work out what it is. But no. I couldn’t. Could I?

Nicholas Lezard is a literary critic for the Guardian and also writes for the Independent. He writes the Down and Out in London column for the New Statesman.

This article first appeared in the 28 April 2016 issue of the New Statesman, The new fascism