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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How Donald Trump is slouching towards the Republican nomination

There was supposed to be a ceiling above which Trump’s popular support could not climb.

In America, you can judge a crowd by its merchandise. Outside the Connecticut Convention Centre in Hartford, frail old men and brawny moms are selling “your Trump 45 football jerseys”, “your hats”, “your campaign buttons”. But the hottest item is a T-shirt bearing the slogan “Hillary sucks . . . but not like Monica!” and, on the back: “Trump that bitch!” Inside, beyond the checkpoint manned by the Transportation Security Administration and the secret service (“Good!” the man next to me says, when he sees the agents), is a family whose three kids, two of them girls, are wearing the Monica shirt.

Other people are content with the shirts they arrived in (“Waterboarding – baptising terrorists with freedom” and “If you don’t BLEED red, white and blue, take your bitch ass home!”). There are 80 chairs penned off for the elderly but everyone else is standing: guys in motorcycle and military gear, their arms folded; aspiring deal-makers, suited, on cellphones; giggling high-school fatsos, dressed fresh from the couch, grabbing M&M’s and Doritos from the movie-theatre-style concession stands. So many baseball hats; deep, bellicose chants of “Build the wall!” and “USA!”. (And, to the same rhythm, “Don-ald J!”)

A grizzled man in camouflage pants and combat boots, whose T-shirt – “Connecticut Militia III%” – confirms him as a member of the “patriot” movement, is talking to a zealous young girl in a short skirt, who came in dancing to “Uptown Girl”.

“Yeah, we were there for Operation American Spring,” he says. “Louis Farrakhan’s rally of hate . . .”

“And you’re a veteran?” she asks. “Thank you so much!”

Three hours will pass. A retired US marine will take the rostrum to growl, “God bless America – hoo-rah!”; “Uptown Girl” will play many more times (much like his speeches, Donald J’s playlist consists of a few items, repeated endlessly), before Trump finally looms in and asks the crowd: “Is this the greatest place on Earth?”

There was supposed to be a ceiling above which Trump’s popular support could not climb. Only a minority within a minority of Americans, it was assumed, could possibly be stupid enough to think a Trump presidency was a good idea. He won New Hampshire and South Carolina with over 30 per cent of the Republican vote, then took almost 46 per cent in Nevada. When he cleaned up on Super Tuesday in March, he was just shy of 50 per cent in Massachusetts; a week later, he took 47 per cent of the votes in Mississippi.

His rivals, who are useless individually, were meant to co-operate with each other and the national party to deny him the nomination. But Trump won four out of the five key states being contested on “Super-Duper Tuesday” on 15 March. Then, as talk turned to persuading and co-opting his delegates behind the scenes, Trump won New York with 60 per cent.

Now, the campaign is trying to present Trump as more “presidential”. According to his new manager, Paul Manafort, this requires him to appear in “more formal settings” – without, of course, diluting “the unique magic of Trump”. But whether or not he can resist denouncing the GOP and the “corrupt” primary system, and alluding to violence if he is baulked at at the convention, the new Trump will be much the same as the old.

Back in Hartford: “The Republicans wanna play cute with us, right? If I don’t make it, you’re gonna have millions of people that don’t vote for a Republican. They’re not gonna vote at all,” says Trump. “Hopefully that’s all, OK? Hopefully that’s all, but they’re very, very angry.”

This anger, which can supposedly be turned on anyone who gets in the way, has mainly been vented, so far, on the protesters who disrupt Trump’s rallies. “We’re not gonna be the dummies that lose all of our jobs now. We’re gonna be the smart ones. Oh, do you have one over there? There’s one of the dummies . . .”

There is a frenzied fluttering of Trump placards, off to his right. “Get ’em out! . . . Don’t hurt ’em – see how nice I am? . . . They really impede freedom of speech and it’s a disgrace. But the good news is, folks, it won’t be long. We’re just not taking it and it won’t be long.”

It is their removal by police, at Trump’s ostentatious behest, that causes the disruption, rather than the scarcely audible protesters. He seems to realise this, suddenly: “We should just let ’em . . . I’ll talk right over them, there’s no problem!” But it’s impossible to leave the protesters where they are, because it would not be safe. His crowd is too vicious.

Exit Trump, after exactly half an hour, inclusive of the many interruptions. His people seem uplifted but, out on the street, they are ambushed by a large counter-demonstration, with a booming drum and warlike banners and standards (“Black Lives Matter”; an image of the Virgin of Guadalupe, holding aloft Trump’s severed head). Here is the rest of the world, the real American world: young people, beautiful people, more female than male, every shade of skin colour. “F*** Donald Trump!” they chant.

After a horrified split-second, the Trump crowd, massively more numerous, rallies with “USA!” and – perplexingly, since one of the main themes of the speech it has just heard was the lack of jobs in Connecticut – “Get a job!” The two sides then mingle, unobstructed by police. Slanging matches break out that seem in every instance to humiliate the Trump supporter. “Go to college!” one demands. “Man, I am in college, I’m doin’ lovely!”

There is no violence, only this: some black boys are dancing, with liquid moves, to the sound of the drum. Four young Trump guys counter by stripping to their waists and jouncing around madly, their skin greenish-yellow under the street lights, screaming about the building of the wall. There was no alcohol inside; they’re drunk on whatever it is – the elixir of fascism, the unique magic of Trump. It’s a hyper but not at all happy drunk.

As with every other moment of the Trump campaign so far, it would have been merely some grade of the cringeworthy – the embarrassing, the revolting, the pitiful – were Trump not slouching closer and closer, with each of these moments, to his nomination. 

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