Comment: A law made by men for men

Jane Fae: 'Is the trans community now, effectively, stripped of legal protection?'
Jane Fae: 'Is the trans community now, effectively, stripped of legal protection?'

By Jane Fae

Not another trans story! Oh yes. And this one, because it raises some pretty fundamental questions in respect of consent when it comes to matters of sexual intimacy, is likely to run and run.

Before we travel a sentence further, however, a serious warning: you may, over the next couple of days, see this story reported under lurid headlines talking about transexual 'deception'. Think twice before you repeat that awful d-word. It's probably not correct and - unlike deception over matters such as marital status and being an undercover police officer - its use can and does get people killed.

So what's the fuss about? The Sexual Offences Act 2003 section 74 brought into statute the notion that consent to a sexual act requires freedom and capacity to consent.  Withholding important information can clearly negate consent – though it would be up to a jury to decide on a case basis.

On the surface, that's big stuff.  The layperson might be forgiven for sitting back, breaking out the popcorn, and waiting for a string of straying husbands to be brought to book.  For, surely, fibbing about whether or not one is married is a bad habit just crying out to be slapped down?  But no: interpreted narrowly and legalistically, as lawyers tend to interpret laws, most things appeared to be outside the scope of this new provision.

Blackmail negates consent, as might significant incapacity by virtue of drink or drugs. The Assange extradition hearing brought in to play the possibility that failure to use a condom, when one had agreed to, might also fall under this provision.
It remained OK to mislead if one was married, a police undercover agent, older, poorer, less glamorous than one actually was.

Even more startling, the law did not include lying about HIV status, or a vasectomy, or being on the pill, or being a convicted paedophile, or a rapist, or a murderer.  None of these things caused the legal profession to turn a hair.

The first tremor of upset arrived in 2012 with the conviction of Gemma Barker for inducing two young girls to engage in sexual intimacy while misleading as to her gender.  That was worrying.  I spoke to the Crown Prosecution Service (CPS) who equivocated ever so slightly: one had to look at all the facts, they suggested.  Nothing was set in stone. Bottom line: there was "no definitive answer".

The issue hotted up in early 2013 as two similar cases hit the headlines: that of Chris Wilson in Scotland (and therefore outside the scope of this debate) and that of Justine McNally in England. That brought to three the number of cases where, according to popular perception, a young woman had obtained consent to sex by means of a deception as to her "real" gender. At issue in each of these cases is gender rather than the actions carried out. McNally was charged with using a dildo without consent, but this charge has never been tested in court.  So in the end she appears to be guilty of gender deception.

One problem is that these cases are all problematic.  Those involved are very young. They have pled guilty to offences, even though there is considerable legal consensus that with a good defence they might not have been found guilty. And, following an appeal by McNally last month, three appeal court judges have made it very clear that failure to reveal true gender may invalidate consent, while re-iterating that failure to mention other things is not.

In so doing, they appear to have wrong-footed an entire disputation of lawyers, many of whom believed that this bit of the law could not apply generally to the attributes of persons involved in sexual acts.

This opens up Pandora's Box. The transgender community is in panic.  Some of that is over-reaction – but not by much.  It is already a fact of life for trans women that the male reaction to being 'deceived' – even to being 'deceived' by a woman sat quietly minding her own business – is frequently violent.

Coupling the words 'trans' and 'deception' in the popular media is dangerous: really dangerous and to repeat, it can get people killed. If trans women fear violence, trans men now fear legal reprisals. Trans men tend to transition well; pass better. And while the general attitude of the trans community is that disclosure is the better option, there is anger too at the idea that disclosure is now being imposed by the state – particularly via a trio of judges whose knowledge of matters LGBT seemed seriously wanting.

As one commenter put it yesterday: "Why not make us all wear a pink star and get it over with?" There are so many questions: does a gender recognition certificate make everything alright – or does this judgment effectively overturn the Gender Recognition Act?  What about intersex people, who may not be able to own up to either gender anatomically?  And what about violence against trans persons?  Does this ruling, by default, introduce a trans self-defence defence (the possibility that aggressors will now try and claim they were only defending themselves from trans sexual advances).

Is the trans community now, effectively, stripped of legal protection? Some remember the US Stonewall riots, when the community kicked off an LGBT backlash against a police force deemed to be openly hostile. Some ask if the time has come for the trans community to defend itself.

Answers are needed, and quickly: for it is in the uncertainty that fear and alienation grows.  The legal establishment needs to get its act into gear and if they won't parliament needs to think very carefully about what to do with some unintended judge-written law. Because if a trans woman is murdered in the next few months and the perpetrator so much as alludes to this decision, all bets are off.

Meanwhile, in groups and forums across the UK, women are finding this result hard to digest.  So it's OK for an undercover policeman to sleep with activists – and that's not limiting choice? It's OK for the police – investigating their own - just to bat away such complaints with a shrug and "it happens"?

It's OK for men to lie about marital status.  It's OK, it's OK, it's OK… for men to lie.

This is law made by men for the benefit of men – and while the judges may not have thought so at the time, they have opened up a debate that they will find exceedingly hard to stick back in the box.


Jane Fae is a feminist and writer on gender issues. You can read more of her writing here and follow her on Twitter here.

The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.

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