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.

Photo: Getty
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The Liverpool protest was about finding a place for local support in a global game

Fans of other clubs should learn from Anfield's collective action.

One of the oldest songs associated with Liverpool Football Club is Poor Scouser Tommy, a characteristically emotional tale about a Liverpool fan whose last words as he lies dying on a WWII battlefield are an exhalation of pride in his football team.

In November 2014, at the start of a game against Stoke City, Liverpool fans unfurled a banner across the front of the Kop stand, daubed with the first line of that song: “Let me tell you a story of a poor boy”. But the poor boy wasn’t Tommy this time; it was any one of the fans holding the banner – a reference to escalating ticket prices at Anfield. The average matchday ticket in 1990 cost £4. Now a general admission ticket can cost as much as £59.

Last Saturday’s protest was more forthright. Liverpool had announced a new pricing structure from next season, which was to raise the price of the most expensive ticket to £77. Furious Liverpool fans said this represented a tipping point. So, in the 77th minute of Saturday’s match with Sunderland, an estimated 15,000 of the 44,000 fans present walked out. As they walked out, they chanted at the club’s owners: “You greedy bastards, enough is enough”.

The protest was triggered by the proposed price increase for next season, but the context stretches back over 20 years. In 1992, the top 22 clubs from the 92-club Football League broke away, establishing commercial independence. This enabled English football’s elite clubs to sign their own lucrative deal licensing television rights to Rupert Murdoch’s struggling satellite broadcaster, Sky.

The original TV deal gave the Premier League £191 million over five years. Last year, Sky and BT agreed to pay a combined total of £5.14 billion for just three more years of domestic coverage. The league is also televised in 212 territories worldwide, with a total audience of 4.7 billion. English football, not so long ago a pariah sport in polite society, is now a globalised mega-industry. Fanbases are enormous: Liverpool may only crowd 45,000 fans into its stadium on matchday, but it boasts nearly 600 million fans across the globe.

The matchgoing football fan has benefited from much of this boom. Higher revenues have meant that English teams have played host to many of the best players from all over the world. But the transformation of local institutions with geographic support into global commercial powerhouses with dizzying arrays of sponsorship partners (Manchester United has an ‘Official Global Noodle Partner’) has encouraged clubs to hike up prices for stadium admission as revenues have increased.

Many hoped that the scale of the most recent television deal would offer propitious circumstances for clubs to reduce prices for general admission to the stadium while only sacrificing a negligible portion of their overall revenues. Over a 13-month consultation period on the new ticket prices, supporter representatives put this case to Liverpool’s executives. They were ignored.

Ignored until Saturday, that is. Liverpool’s owners, a Boston-based consortium who have generally been popular on Merseyside after they won a legal battle to prize the club from its previous American owners, backed down last night in supplicatory language: they apologised for the “distress” caused by the new pricing plan, and extolled the “unique and sacred relationship between Liverpool Football Club and its supporters”.

The conflict in Liverpool between fans and club administrators has ended, at least for now, but the wail of discontent at Anfield last week was not just about prices. It was another symptom of the broader struggle to find a place for the local fan base in a globalised mega-industry.The lazy canard that football has become a business is only half-true. For the oligarchs and financiers who buy and sell top clubs, football is clearly business. But an ordinary business has free and rational consumers. Football fans are anything but rational. Once the romantic bond between fan and team has been forged, it does not vanish. If the prices rise too high, a Liverpool fan does not decide to support Everton instead.

Yet the success of the protest shows that fans retain some power. Football’s metamorphosis from a game to be played into a product to be sold is irreversible, but the fans are part of that product. When English football enthusiasts wake in the small hours in Melbourne to watch a match, part of the package on their screen is a stadium full of raucous supporters. And anyone who has ever met someone on another continent who has never travelled to the UK but is a diehard supporter of their team knows that fans in other countries see themselves as an extension of the local support, not its replacement.

English football fans should harness what power they have remaining and unite to secure a better deal for match goers. When Liverpool fans walked out on Saturday, too many supporters of other teams took it as an opportunity for partisan mockery. In football, collective action works not just on the pitch but off it too. Liverpool fans have realised that. Football fandom as a whole should take a leaf out of their book.