Written Evidence Submitted by Professor Alex Sharpe[1] to the Transgender Equality Inquiry

A. Author Background:

1. Professor of Law, Keele University (2004 -) http://www.keele.ac.uk/law/people/academicstaff/alexsharpe/ LLB (University of Warwick, 1987), LLM (University of Western Australia, 1993), PhD (Keele University, 2009), Barrister at Law, England & Wales (1988), Barrister and Solicitor of the Supreme Court of Western Australia (1990) and of the High Court of Australia (1991)

2. Previously worked at Macquarie University (1996-2004); the LSE (1995); the University of Sydney (1994); and the University of Western Australia (1993). Research interests lie in the field of gender, sexuality and the law generally and transgender and the law specifically. Author of Transgender Jurisprudence: Dysphoric Bodies of Law (Cavendish, 2002), Foucault’s Monsters and the Challenge of Law (Routledge, 2010) and over 50 other academic publications. Serves on the International Legal Committee of WPATH (the World Professional Association of Transgender Health), a law reform body that makes third party interventions in litigation worldwide, and sits on Amnesty International's Expert Committee on the Criminalisation of Sexual and Reproductive Conduct. Provided advice to various government bodies,[2] members of parliament,[3] law firms, public interest advocacy organisations,[4] and a variety of professional bodies, both in the UK and internationally. Cited judicially in various domestic jurisdictions and by the European Court of Human Rights.[5]

B. Executive Summary:

3. This submission aims to draw the Women and Equalities Committee’s attention to two interrelated equality issues associated with the legal treatment of transgender people who do not disclose their gender history:

(i) non-disclosure has led to the successful prosecution of young transgender people for sexual fraud offences.

(ii) non-disclosure enables cisgender people to exit a marriage through nullity proceedings.

4. The fact that non-disclosure of gender history can lead to criminal prosecution for sexual fraud and confers upon cisgender[6] people a right to accelerated exit from marriage through nullity proceedings, points to a failure to recognise transgender people as equal in our society. In both cases, transgender people’s rights to human dignity[7] and privacy[8] are undermined by what is, in effect, the creation of a cisgender right, not simply to ‘know’ gender history, but to ‘define’ it in ways contrary to transgender self-determination. 

5. The fact that non-disclosure is viewed as a problem at all is intelligible only because law and society continue to dispute the legitimacy of the gender claims of transgender people. Thus, for example, law enables a cisgender woman to pursue a sexual offence prosecution against a transgender man because she considers him to be a woman who ought to have disclosed this ‘fact’ and, if married to him, to exit the relationship swiftly for the same reason.

6. These issues are important because: (i) prosecution of transgender people for sexual offences, in the context outlined, represents significant criminal law overreach in terms of basic liberal and equality principles,[9] and (ii) criminal prosecution and marriage annulment reproduce the pernicious notion that transgender people’s gender identities are not real and that transgender people are duplicitious. It is precisely this outlook that perpetuates the whole myriad of social problems transgender people face and which the committee is seeking to address.

C. Submissions:

(a). Criminal Prosecution

7. In recent years, there have been three successful sexual offence prosecutions brought against young transgender men.[10] Two of the defendants received custodial sentences.[11] All have been placed on the Sex Offenders Register for Life. One of these cases, R v McNally [2013], went to the Court of Appeal, so there now exists a legally binding precedent for the view that prosecution is appropriate in circumstances where gender history is not disclosed in advance of desire-led intimacy.

8. It is important to elaborate on the Court of Appeal’s decision in the McNally case because, while some convictions have been based quite explicitly on non-disclosure,[12] the Court of Appeal drew a distinction between ‘active deception’ and non-disclosure of information and justified McNally’s conviction on the basis of active deception. However, in transgender contexts, this distinction proves especially problematic. This is because transgender operates as a synonym for deception in our society. In the context of sexual intimacy with cisgender people, every word, gesture, and mannerism, no matter how consistent with authentic gender identity, is likely to be read as a manifestation of active deception.

9. There are three arguments in favour of prosecution:

              (i) non-disclosure of gender history vitiates consent because                             consent is required to be informed (this is an argument based on               the right to sexual autonomy);

              (ii) inadvertent sexual intimacy with transgender people is harmful;               and

              (iii) non-disclosure is deceptive.

Each of these arguments is deeply cissexist, that is, premised on the belief that transgender people’s gender identities “are inferior to, or less authentic than” those of cisgender people,[13] and should therefore be rejected.

10. Consent: In relation to consent, the argument relies on the view that gender history is a ‘material fact’ that a cisgender person has a right to know if her sexual autonomy is to be respected. Yet, materiality cannot be determined by subjective preference. If this were the case, rape would be committed whenever sexual intercourse were preceded by a false declaration of love. The courts consider non-disclosure of this kind to be trivial,[14] and in relation to the possibility of criminisation, rightly so. Indeed, under current law, non-disclosure of a whole panopoly of facts, that a sexual partner may wish to know, does not serve to vitiate consent. Thus non-disclosure of bisexuality, mixed-race status, religious faith, or criminal convictions will produce no legal consequences. This is true even in relation to HIV+ status.[15] This points to legal inconsistency. Moreover, transgender people are the only identity category who are subject to a disclosure obligation under the law. This points to a potential breach of Article 14 (no discrimination) in conjunction with Article 8 (right to privacy) of the European Convention on Human Rights.

11. The gender history of transgender people is no more material than the gender history of cisgender people. It is only considered ‘material’ because it is interpreted as evidence calling into question transgender people’s gender identities. In other words, the basis for a non-consent/violation of sexual autonomy conclusion is founded, not on lack of facts, but on a right to define the facts. Accordingly, consent should not be viewed as vitiated in these circumstances, and especially not given the desire-led nature of the intimacy in question. When a cisgender woman desires a transgender man she should not be permitted to disown her desire and reframe an ensuing pleasurable sexual exchange as the rightful object of the criminal law, simply because she wrongly assumed the object of her affections to be cisgender.

12. Harm: It is true that complainants report distress, disgust and revulsion upon learning about gender history. Yet, such feelings arise because complainants insist on redefining transgender people’s gender identities at the time of discovery. That is, pleasurable acts are retrospectively reimagined as harmful because a male/female sexual object-choice is no longer viewed as male/female. In other words, the real source of anxiety and experience of ‘harm,’ lies in the notion that homosexual relations have occurred inadvertently. To respond to claims of ‘harm’ in these circumstances through the criminal law is to allow cisgender people to define the gender identities of transgender people and to mobilise law in support of their interpretation.

13. On the question of harm, it is also important to emphasise the harms likely to be suffered by transgender people associated with disclosure. Disclosing gender history is not an act undertaken without risks. Coming out as transgender exposes a person to considerable and well-documented physical risks.[16] This concern is perhaps intensified in relation to transgender youth and therefore in relation to all defendants prosecuted so far. In addition to the not inconsiderable physical risks, we need to recognise the psychological and emotional impact of disclosure. For many transgender people, having to disclose their chromosomal status, present and/or past genital and/or gonadal condition as well as a history of coerced gender performance is a source of pain and trauma.[17]

14. Deception: The claim that non-disclosure is deceptive proceeds from the assumption that the gender identity claims of transgender people are inauthentic. Part of the difficulty here is that, under current law, we permit cisgender people to assume everybody to be cisgender and when this unreasonable (and empirically false) assumption fails to accord with reality, we allow them to channel their sense of outrage through the criminal law. In other words,  the problem is not transgender deception, but cissexist assumption. Transgender people are being punished by courts of law because cisgender complainant assumption is readily translated into transgender defendant deception. That this assumption is not only routinely made, but receives the imprimatur of law, serves to highlight cisgender privilege and the unequal status of transgender people before the law.

(b). Marriage Annulment

15. By virtue of s. 12(h) of the Matrimonial Causes Act, 1973 (as amended by the Gender Recognition Act 2004)[18] a marriage between a transgender person and a cisgender person can be annuled where gender history is not disclosed in advance of the marriage ceremony. This enables a marriage party to exit the marriage relationship in an accelerated manner. A provision of this kind might be viewed as preferable to leaving the parties to the law of divorce. The argument here however, is not about making marriage termination more difficult or drawn out. Rather, the difficulty lies in the fact that transgender people are singled out for this particular marriage obligation and that this produces a series of symbolic and symbolic effects.

16. The obligation is problematic in a number of ways, some of which criss-cross with the concerns already expressed in relation to criminal prosecution. Thus the disclosure obligation:

              (i) reproduces the offensive idea that intimacy with transgender                             people is harmful;

              (ii) in singling out transgender people as the only group who bear the               obligation (there are no obligations to disclose mixed-race status,                             disability, religious faith, former homosexual experience, prior                             criminal convictions … ) is discriminatory, and potentially in breach               of Article 14 (no discrimination) in conjunction with Article 8 (the               right to privacy) of the European Convention on Human Rights;

              (iii) is a significant encroachment on the right to privacy guaranteed               by Article 8 of the European Convention on Human Rights; and

              (iv) fosters the idea that non-disclosure is an unethical omission                             rather than a matter of personal dignity, privacy, and a legitimate                             concern over safety in a transphobic society.[19]

17. The disclosure obligation is also significant, or at least potentially so, because non-compliance may lead to a finding of inequitable conduct barring ancillary relief under s. 25(2)(g) of the Matrimonial Causes Act. In other words, non-disclosure may lead to adverse financial consequence for married transgender people.

D. Recommandations:

1. Amend s. 74 of the Sexual Offences Act 2003 to add the following provision:

              (2) consent is not vitiated in circumstances where gender history is               not disclosed or where assertions are made consistent with gender               identity.

2. Amend s. 76 of the Sexual Offences Act 2003 to add the following provision:

              (3) In relation to 2(a) above, there is no deception as to the nature               or purpose of the relevant act in circumstances where gender                             history is not disclosed or where assertions are made consistent               with gender               identity.

3. Repeal s. 12(h) of the Matrimonial Causes Act 1973.

E. References:

Hill, Darryl and Willoughby, Brian. ‘The Development and Validation of the Genderism and Transphobia Scale’ (2005) 53 Sex Roles 531-544.

Serrano, J. Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity (Berkeley, CA: Seal Press, 2007).

Sharpe, A. ‘Criminalising Sexual Intimacy: Transgender Defendants and the Legal Construction of Non-Consent’ (2014) Criminal Law Review 207-223.

Shelley, Christopher. Transpeople: Repudiation, Trauma, Healing (Toronto: University of Toronto Press, 2008).

Whittle, S. et al, The Equalities Review: Engendered Penalties: Transgender and Transexual People’s Experiences of Inequality & Discrimination (London: Press for Change, 2007).                                                                                                  

07 August 2015

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