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.

kerim44 at Wikimedia Commons
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Xenophobic graffiti at a London Polish centre is a dark sign of post-Brexit Britain

The centre's chairwoman says an incident of this kind has never happened before, and police are treating it as a hate crime. 

Early on Sunday morning, staff arriving at the Polish Social and Cultural (POSK) centre in west London's leafy Ravenscourt Park were met with a nasty shock: a xenophobic obscenity smeared across the front of the building in bright yellow paint. 

“It was a standard, unpleasant way of saying ‘go away’ – I'll leave that to your interpretation,” Joanna Mludzinska, chairwoman of the centre, says the next morning as news crews buzz around the centre’s foyer. The message was cleaned off as soon as the staff took photo evidence – “we didn’t want people to walk down and be confronted by it” – but the sting of an unprecedented attack on the centre hasn’t abated.

“Nothing like this has ever happened before,” Mludzinska tells me, shaking her head. “Never.”

The news comes as part of a wash of social media posts and police reports of xenophobic and racist attacks since Friday’s referendum result. It’s of course difficult to pin down the motivation for specific acts, but many of these reports feature Brits telling others to “leave” or “get out” – which strongly implies that they are linked to the public's decision on Friday to leave the European Union. 

Hammersmith and Fulham, the voting area where the centre is based, voted by a 40-point margin to remain in the UK, which meant the attack was particularly unexpected. “The police are treating this as a one-off, which we hope it is,” Mludzinska tells me. They are currently investigating the incident as a hate crime. 

“But we have anecdotal evidence of more personal things happening outside London. They’ve received messages calling them vermin, scum [in Huntingdon, Cambridgeshire]. It’s very frightening.” As one local Polish woman told the Mirror, there are fears that the referendum has “let an evil genie out of a bottle”. 

For those unsure whether they will even be able to stay in Britain post-referendum, the attacks are particularly distressing, as they imply that the decision to leave was, in part, motivated by hatred of non-British citizens. 

Ironically, it is looking more and more likely that we might preserve free movement within the EU even if we leave it; Brexit campaigners including Boris Johnson are now claiming immigration and anti-European feeling were not a central part of the campaign. For those perpetrating the attacks, though, it's obvious that they were: “Clearly, these kind of people think all the foreigners should go tomorrow, end of,” Mludzinska says.

She believes politicians must make clear quickly that Europeans and other groups are welcome in the UK: “We need reassurance to the EU communities that they’re not going to be thrown out and they are welcome. That’s certainly my message to the Polish community – don’t feel that all English people are against you, it’s not the case.” 

When I note that the attack must have been very depressing, Mludzinska corrects me, gesturing at the vases of flowers dotted around the foyer: “It’s depressing, but also heartening. We’ve received lots and lots of messages and flowers from English people who are not afraid to say I’m sorry, I apologise that people are saying things like that. It’s a very British, very wonderful thing.”

Beyond Hammersmith

Labour MP Jess Phillips has submitted a parliamentary question on how many racist and xenophobic attacks took place this weekend, compared to the weekends preceding the result. Until this is answered, though, we only have anecdotal evidence of the rise of hate crime over the past few days. From social media and police reports, it seems clear that the abuse has been directed at Europeans and other minorities alike. 

Twitter users are sending out reports of incidents like those listed below under the hashtag #PostBrexitRacism:

Facebook users have also collated reports in an album titled Worrying Signs:

Police are currently investigating mutiple hate crime reports. If you see or experience anything like this yourself, you should report it to police (including the British Transport Police, who have a direct text number to report abuse, 61016) or the charity Stop Hate UK.

HOPE not hate, an advocacy group that campaigns against racism in elections, has released a statement on the upsurge of hatred” post-referendum, calling on the government to give reassurance to these communities and on police to bring the full force of the law” to bear against perpetrators.

The group notes that the referendum, cannot be a green light for racism and xenophobic attacks. Such an outpouring of hate is both despicable and wrong.

Barbara Speed is a technology and digital culture writer at the New Statesman and a staff writer at CityMetric.