The dark truth behind the convictions for 'gender fraud'

It's not about justice, it's about witch hunts, argues Alex Sharpe. 

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Today, a young transgender man, Kyran Lee, received a two year suspended sentence after being convicted in 2014 of one count of sexual assault by penetration on the basis of “gender fraud.” He is the fifth young LGBT person to be prosecuted for and convicted of so-called “gender fraud” in the UK since 2012. The reason for this recent spate of criminal prosecutions of LGBT youth is unclear and calls for rigorous analysis in its own right. What is clear, is that while these prosecutions have some support, they do not accord with general community sentiment concerning the meaning of consent and the proper reach of criminal law. Indeed, the point can be put more forcefully given public disquiet, nay outrage, following Gayle Newland’s recent conviction and eight year sentence. In the wake of the Newland case, Kyran’s sentence comes as something of a relief. However, Judge Michael Heath made clear he would have imposed an immediate prison sentence had he found Kyran’s motive to engage in sexual intimacy to be one of sexual gratification, rather than the avoidance of rejection and relationship breakdown. Accordingly, and importantly, it should not be thought that sentence leniency followed from recognition of Kyran’s gender identity.

While all of the so-called “gender fraud” prosecutions are disturbing, this is especially so in the case of Kyran Lee. This is because his prosecution reveals more clearly than most earlier prosecutions how the state literally refuses the gender identities of transgender people or, at least, allows them to be trumped by cisgender complainant understandings of gender. In all of the five cases successfully prosecuted (R v Gemma Barker [2012], R v Chris Wilson [2013], R v Justine McNally [2013], R v Gayle Newland [2015] and now R v Kyran Lee (Mason) [2015]), female complainants claimed to believe that their object of desire was a man and conviction rested on a legal conclusion that there was a gap between belief and reality. Putting to one side the rather fanciful stories put forward by the complainants, and the suspension of judicial and/or jury disbelief that conviction necessarily required, let us look more closely at legal acceptance of a gap.

In the cases of Gemma Barker and Gayle Newland, there does appear to be a gap given that both identified as lesbian women. However, this does not justify prosecution, nor does it show that performing gender in a masculine way is deceptive. For some lesbian and female-bodied gender queer people, a masculine gender performance is an authentic expression of gender identity, albeit not a male identity. Accordingly, such cases raise important questions concerning whether any deception has been perpetrated. They also point to the way the state regulates marginal sexuality through a focus on the gender performances that accompany it. In this latter sense, prosecution is always about the punishment of gender “deviance.”

The prosecution of Justine McNally is more complex because although identifying as female at trial and for the purposes of her unsuccessful appeal, she identified as male prior to and at the time of the alleged offences and had indicated a desire to undergo gender reassignment surgery. There is no obvious reason to disbelieve the authenticity of her earlier gender identification (medical evidence suggests a high rate of gender identity persistence after adolescence) and its later countermanding might have been the effect of criminal prosecution and media persecution of the seventeen year old. Retreat into ‘normalcy’ would be easy to understand. Such concerns provide a further objection to these kinds of prosecution. Nevertheless, the defendant’s assertion of a female gender identity at trial served to confound the defence case, leading to the same kind of legal analysis adopted in the Barker and Newland cases. The McNally case can be viewed as a hard case producing bad law.

The case of Kyran Lee however, like the earlier case of Chris Wilson, does not lend itself easily to such legal resolution. It is for this reason that his conviction by an English court is especially alarming. Let me explain. Kyran, like Chris, identifies as a man. He has done so consistently since he was at least fifteen and therefore for a decade prior to the alleged offence. Moreover, he has since changed his name legally, been accepted into a Gender Identity Clinic treatment programme, and undertaken gender reassignment surgery. While male status does not depend on surgical intervention as a matter of law, it is clear that Kyran is a man. The fact that he does not currently have a Gender Recognition Certificate stating the same is an effect only of his relative youth. We might therefore wonder how his conviction proved possible. In the first place, it should be recognised that, like all the other young LGBT defendants, Kyran pleaded guilty. Pleading guilty however is not the same thing as being guilty. Sadly, there are many reasons why innocent people plead guilty within our criminal justice system and, in the case of LGBT kids accused of ‘gender fraud,’ we can confidently add to the list, internalised shame and societal disbelief concerning assertions of consensual sex with cisgender people - the hubris and conceit of it all !

In any event, the acceptance of a guilty plea should only be possible in circumstances where the facts pleaded guilty to actually constitute an offence in law. In the case of Kyran Lee it is less than clear that this is the case. This is because the relevant gap between assumed gender identity and actual gender identity did not exist. That is, the complainant assumed Kyran to be a man and given that he is a man (and we must insist on this point, despite the protestations of the Germaine Greers of this world), no relevant mistake was made or fraud perpetrated. Rather, upon ‘discovery’ of Kyran’s transgender status, the complainant concluded that he was not a man. In this respect, she understood ‘man’ to mean, and to be exhausted by, the class of men we now refer to as cisgender. She is, of course, entitled to act on such a view in the sexual relations she chooses to have. What she ought not to be entitled to do is mobilise the power of the state against other men with whom she chooses to have sex. To permit her to do so is to rub salt into the wounds of a prior ontological assault - the denial of gender identity.

However, the Kyran Lee case is complicated by the use of a prosthetic device by the defendant. For some readers, this might settle the question of consent and clinch the argument in favour of prosecution. However, we should be cautious here for at least three reasons. First, according to Kyran’s evidence, he was much less sexually experienced than the twenty-seven year old complainant and had not wanted to have sexual intercourse with her, agreeing only because the complainant made it clear that the continuation of their relationship was contingent on him doing so (something which, as already noted, was emphasised by  the judge in settling on a non-custodial sentence). In this regard, and given his significant emotional involvement with the complainant, one might view the sex act as the product of some degree of coercion. Second, it is important to recognise that for some transgender men, a prosthesis is experienced as a penis. To insist on a distinction between the fleshy and the non-fleshy penis in legal constructions of consent is to misunderstand this important phenomenological issue and point of gender variance.

Third, and perhaps most importantly, we should recognise that, while prosecution might technically be justified on the basis of lack of consent because of the use of a prosthetic device, prosecution is unlikely to have been motivated by the use of such a device. Indeed, had any of the defendants been cisgender men, prosecutions are unlikely to have been brought. In other words, the coercive power of law is being used to endorse the views of some cisgender people concerning the definition of something so personal as gender identity. While some people might want to say that trans men are not men, and others might want to defend their right to say so, what we need to recognise is that the stamping of such a view with the imprimatur of criminal law is an act that is as partial as it is brutal. This is not a matter of free speech and censorship. Nor, fundamentally, is it a matter of cisgender sexual autonomy. Rather it is a matter of state violence occasioned through the delegation of responsibility for defining and enforcing gender norms to cisgender people.

Let us call it what it is, and let us do so loudly. Perhaps then, we can stave off the next witch hunt waiting to happen. 

Alex Sharpe is a Professor of Law at Keele University.