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The Court of Appeal has just published it’s judgement in the latest sex-by-deception case. This is, to the best of my knowledge, the first time a written judgement has been provided in such a case and is binding on the lower courts, i.e. creating case law.

It’s not good news.

As I’m quoting direct from the judgement, the below contains detailed references to sexual acts. This is unavoidable as it is highly relevant. There are no references to underage or non-consensual acts, the case revolves entirely around “deception” as to gender invalidating consent.

I’m going to quote extensively from the judgement as I believe it speaks for itself However, you can skip the quotes and just read my summary and it should make sense. What I will note is the heavy and unnecessary use of quote marks to imply deception earlier on: ‘him’, ‘his’ etc. This is despite the note from the judge towards the end about “confusion with her own sexuality”, specific reference to the person concerned “talking about wanting a sex change” and a pre-setnence report revealing “a history of…confusion surrounding her gender identity”.

The judge’s way of phrasing things could at best be described as insensitive and I suspect they had no training in this area.

6. Arrangements were made for “Scott” to come down to London to see M just after her 16th birthday…

7. …at the time the appellant was aged 17 years…

Summary: There was no issue with age of consent. (Quite the opposite, they waited until they were old enough)

8. … They went to a bedroom where it was dark and the appellant began to rub M’s vagina with her fingers and gave her oral sex. … M offered to give the appellant oral sex but the appellant declined. It was alleged (this being the count that was denied and not pursued) that M was penetrated with the dildo.

9. On the second visit, there were lots of occasions of oral penetration and occasions of digital penetration, always of M. … On the third visit, although there were difficulties in the relationship, they had a party. They still talked about having sex but the appellant was not interested in trying again.

Summary: There was genital contact and penetration with tongue and fingers. There was no penetration with a dildo or any confusion/lack of clarity over what it was penetration was with considered in the case. This is important: There was no “penis-in-vagina” sex involved in the case.

10. However on the fourth and final visit in November 2011, the appellant was confronted by M’s mother about really being a girl. … The appellant kept talking about wanting a sex change and M said the appellant had lied to her for four years and all that time she had been calling her Scott.

47. …The pre-sentence report spoke of a history of self harm and confusion surrounding her gender identity and sexuality, which were resolving….

Summary: There’s clear confusion over gender here. Talking about wanting a sex change is enough to get protection as a trans person under the Equalities Act 2010.

23. The case for the Crown was that M’s consent was obtained by fraudulent deception that the appellant was a male and that had she known the truth, she would not have consented to acts of vaginal penetration. Mr Wainwright argues that deception as to gender cannot vitiate consent; in the same way deception as to age, marital status, wealth or, following EB, HIV status being deceptions as to qualities or attributes cannot vitiate consent.

A little confusing this, but in a nutshell: It has been ruled previously that deception over age, marital status, wealth or HIV status does not matter.

26. Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.

Summary: Gender is somehow special because, presumably, “eww, gay people” and “eww, you turned me gay”. Homophobia as much as transphobia. “Deception” when it relates to gender does matter, even if primary sexual characteristics (Vagina/Penis) are not involved. As far as I’m aware there has never been a case in the UK involving deception as to religion, which would be an interesting comparison as it can involve strong emotions too.

Age, marital status, wealth or HIV status do not matter. Gender does.

11. …On 30 November 2011, M gave a full account to police of these offences. Although one or two answers might be said to be equivocal, she said that she did not know that “Scott” was a girl…

12. The account which the appellant provided to the police in a prepared statement was to the effect that she met M through the internet, pretending to be “Scott” because it made her more comfortable. She suggested that M found out about her real identity as early as December 2009 and they had a big argument. They eventually started speaking again and then met up. She expressed the view that she thought that the complainant knew or suspected that the appellant was a girl. That suspicion would be inconsistent with the suggestion of an argument when M found out; neither would it be consistent with M’s purchase of condoms before the first visit and preparation for it in 2011.

30. The draft witness statement re-iterated that the appellant had lost contact with M around Christmas 2009, noting that it was resumed when M requested pictures via a webcam for which purpose the appellant made herself look like a boy. The statement goes on to say that when the appellant travelled to London, she did not try to disguise herself as a boy and continued with these words:

“12. I presumed M knew that I was a girl and consented to sexual activity which took place although I specifically deny I ever used a dildo on her. I admit I had a dildo which she saw but I did not use it on her.“

Summary: The judgement goes on at length beyond this and is also concerned with the accuracy of legal advice given, but there appears to have been some doubt as to how aware M was about the gender situation. Given they were both teenagers, possibly confused about sexuality and on one side gender, this perhaps isn’t surprising.

Essentially it goes on to say that although the burden of proof is with the prosecution, if you’re trans and out yourself to someone prior to any sort of sexual act – even touching – then it would be best if you can prove it, in case they (or their parents) later try to prosecute. A Gender Recognition Certificate would, I hope, be a defense – but having read the judgement, I’m not certain.

Quite how you prove you told a partner without outing yourself to all and sundry, putting yourself at risk of physical violence, loss of employment, homelessness etc is not addressed in the judgement.

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The Scottish parliament has just released it’s own “Equal” Marriage Bill. (PDF Link)

The nature of devolved legislative powers is that there is much they can’t fix, such as reintroduction of the fast-track Gender Recognition Certificate (GRC) process. However, the things they could have fixed from the English and Welsh version… they haven’t.

Firstly, the spousal veto is still present, without time limit. (Schedule 2, paragraph 3 – starts on the bottom of page 38) In a nutshell, if you want gender recognition including employment law protection and you are married, you’d better hope you have a cooperative spouse. Otherwise, you’ll be forced to go through the cost of initiating an annulment yourself. That is, of course, assuming your spouse isn’t inclined to engage in delaying tactics over any divorce because they can make you wait a long, long time to get your legal rights if so.

Quite why the legal gender of the person you are married to is more important than if they are living as and perceived by the world as a particular gender, or if they have a particular genital configuration, has yet to be explained by anyone involved. For the avoidance of doubt, because many legislators didn’t know this, a spouse has no say in change of legal name and going “full time”, in starting hormone treatment or in surgery. There is also no other situation that partners might find just as objectionable, such as religious conversion or racking up huge debts, that require a special veto clause in legislation rather than using the generic marriage-broken-down-irretrievably clauses. Such “you must have your husband/partners consent” clauses were, rightly, removed from legislation a long time ago. GRCs are unique in having this reintroduced.

They have also made no move to restore marriages stolen under the old system.

On the plus side, it doesn’t look as if someone can annul their marriage just because their partner had a GRC from before they were married if they’re in Scotland. That’s something they have right historically, at least.

But it’s almost as if they just copied what Westminster did and were not paying attention.

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As people may already be aware, the government refused to meet the trans community half way on the spousal veto issue. This means the partners of trans people who feel they have an axe to grind would be able engage in delay tactics and stop legal gender recognition for a protracted period.

The ball is basically in the government’s court, but only Lords can vote on individual issues now. Lords are UK wide, so there is no local Lord for you to lobby and MPs will now only get a yes/no vote on any amendments suggested by the Lords. However, the Lords still have report stage and third reading to propose their amendments. There is a chance the government might come back with something positive as they were clearly caught off-guard and Baroness Stowell, the government spokesperson in the Lords, was clearly unprepared to handle issues being raised.

With that in mind, for those wanting to influence the likely outcome of the decision, it would do no harm to write to Baroness Stowell. I’ve mailed her, at stowellt (at) parliament.uk, with the text below and I’d encourage others to do the same.

Some tips:

  • A personal note will carry more weight than a generic one, but feel free to use the text exactly as it is below.
  • Give and credit where it’s due. There’s no point in giving way on issues if we don’t acknowledge them and just rant in future.
  • Be polite. There are enough “swivel-eyed loons” attempting to participate in politics already and they get ignored.
Dear Lady Stowell of Beeston,

Following the committee stage of the Marriage (Same-Sex Couples) Bill in the House of Lords, I am
pleased to hear that the government is thinking of reintroducing the GRC fast-track procedure.
This will be important for married trans people who have previously chosen not to seek legal
recognition but now wish to take advantage of the ability to do so without dissolving their
marriage. In many cases, the doctors involved in their treatment may no longer be in practice
which would make use of the standard procedure unviable.

I hope the government can make the reintroduction permanent.

However, the news that there was no were no plans to address the spousal veto issue is disappointing.
I would like to echo the sentiments given in the house by Baronesses Barker, Gould and Butler-Sloss.
The proposed amendment, itself a compromise from earlier amendments, granted the barest minimum
protections to trans people from spouses engaged in delay tactics and allowed all concerned to
quickly resolve what can be an undesirable situation all round.

You committed to writing to Baroness Thornton addressing many of the points raised and I would be
grateful if you could, if possible, also include me in that reply.

It is notable that during the passage of the bill, no amendments have yet been accepted by the
government that grant any rights whatsoever to trans people, only to their spouses. Please do not
continue this trend in the House of Lords.

Yours sincerely,

(I included my address at the end, so she will know I’m in the UK)

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Today was the third and final day of the House of Lords committee stage for the Marriage (Same-Sex Couples) Bill. First of all, some background on the current state of the bill for trans folk – overall, it’s progressive because it removes the forced-divorce requirement of the current situation. Even if your spouse was 100% cooperative and happy to remain married, the lack of same-sex marriage in this country (And of opposite-sex civil partnerships, for those in civil partnerships) meant you had to divorce and get re-married/civil-partnered in order to obtain gender recognition.

Beyond that, it appears to have been the position of government to try to limit trans rights as much as possible.

A whole raft of possible improvements were suggested, many of which were raised by trans activists over the course of several meetings with civil servants. I’ve covered some of them here, although removal of gendered language (i.e. say “partner” instead of “husband/wife”), survivor pensions and reinstatement of the old fast-track GRC process were also discussed. (More on fast track later)

Several months on and things are not looking good.

The government has shot down almost all of the amendments, granting only survivor pensions during the passage of the bill through the commons. (Notably, the one suggestion that benefits not just cis people but cis wives specifically – it only has a beneficial effect for the wife of a trans woman)

This left trans activists in the unenviable position of deciding where to concentrate limited political capital, with the remaining items eventually being spousal veto and fast-track. Even then, the abolition of the spousal veto to gender recognition completely was not going to be possible – instead a watered down version (Amendments 46ZA through 46ZG) was produced which time-limited it to 6 months, after which a full gender recognition certificate could be applied for. (12 months if the partner started proceedings first)

With the veto in place, the entire financial and emotional burden for initiating annulment proceedings falls upon the transitioning partner, as if it is their fault for being trans. It also becomes possible for a particularly non-cooperative partner to delay or even stall proceedings totally for many years, possibly using someone’s legal rights as a bargaining chip to gain benefits or just out of malice. (This sort of behavior is all too common in acrimonious divorces, sadly – even to the extent of pre-emptively starting proceedings and abandoning them to prevent the other side from initiating divorce themselves and delaying things as much as possible)

Baronesses Barker and Gould proposed the amendment in the House of Lords today, with the relevant discussion starting from 3:41pm. (Hansard transcript also available.) There were some particularly good quotes from Baroness Gould: “No other area of law requires spousal consent for a change in the relationship…formal spousal consent is a new concept in law. Without this amendment, the government is saying to trans people that they are somehow second class citizens“. Baroness Butler-Sloss also spoke up in favor meaning the amendment had, significantly, support from LibDem, Labour and Crossbench peers.

The government response from Baroness Stowell was, essentially, “no, we’re not going to do this” with her response going so far as to suggest the decision to end a marriage because of gender recognition was one that was entirely the problem of the trans person. However, it was ill-prepared and they were clearly not expecting to be pushed on the issue. Eventually the amendment was withdrawn (This is normal practice, amendments do not generally get pushed to the vote, particularly at this stage) with the government committing to have more discussions and report back in writing.

Not a victory by any stretch of the imagination, particularly given that this was supposed to be a compromise amendment for the government to meet us half-way in the first place.

The one small glimmer of hope is that there may be government amendments at the next stage to re-introduce fast track: The mechanism by which someone who has transitioned for a long period (several years) to obtain a Gender Recognition Certificate with reduced requirement for reports from doctors, many of whom may no longer be practicing. Despite this, there is much predictable anger on Twitter at the government’s point-blank refusal to consider any trans rights, even when compromises are proposed.

Finally, to clear up a couple of misconceptions I’ve seen elsewhere:

  • The interim Gender Recognition Certificate-based procedure to dissolve the old marriage and re-contract a new one on the same day when you’re issued a doesn’t work in practice due to the way the paperwork is handled. (I think it’s only been successful once) Usually there is a delay of several weeks, especially if you’re trying to organise a ceremony around it. There would be all sorts of inheritance problems if one partner dies during this problem but thankfully I don’t believe this has ever happened.
  • The ability for a spouse to divorce someone who had a GRC before they were married (Unless they can prove they told them about it somehow) isn’t introduced by this bill – it’s from the original Gender Recognition Act 2004. However, it’s something that was raised as part of this bill and the government refused to change. (For some reason, they consider existing “unreasonable behavior” divorces to be insufficient – trans folk need to be punished for their “deception”.

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In the last few days, Reuters have produced a graph titled “Top 10 countries requesting for user data from tech companies“. It’s been circulated widely, having been picked up by Techspot, ISPreview, Gizmodo, io9 and others.

It is also very misleading because it reports the absolute number of requests, ignoring the relative size of the countries concerned. I have covered this before with Google’s transparency report, analyzing the data based on the population of the countries concerned. The Reuters graph goes beyond the Google data and includes the more recent Twitter and Microsoft/Skype transparency reports. So, I have repeated the same exercise and duplicated their graph with more representative numbers:

User data requests 2012

For comparison, here is the Reuters graph. (Click for a larger version) Reuters-data-requests

There’s quite a difference – the US drops to number 10. Arguably, you could say that Luxembourg and Malta are unreliable data points due to their relatively small size, but that still puts the US at number eight. The raw data is reproduced below.

Rank Country Population Google Microsoft Skype Twitter Total Requests per million people
1 Luxembourg 537,000 0 55 98 0 153 284.9
2 Taiwan 23,174,528 561 4,381 316 0 5,258 226.9
3 United Kingdom 62,008,049 2,883 9,226 1268 36 13,413 216.3
4 Malta 416,055 0 75 5 0 80 192.3
5 France 65,447,374 3,239 8,603 402 12 12,256 187.3
6 Turkey 72,561,312 261 11,434 0 11,695 161.2
7 Australia 22,469,943 1,107 2,238 195 0 3,540 157.5
8 Germany 81,802,257 3,083 8,419 686 0 12,188 149.0
9 Hong Kong 7,173,900 0 1041 0 0 1,041 145.1
10 United States 310,314,000 16,407 11,073 1154 1,494 30,128 97.1
11 Belgium 10,839,905 227 727 39 0 993 91.6
12 Portugal 10,636,888 384 548 1 0 933 87.7
13 Singapore 5,076,700 185 179 4 0 368 72.5
14 Spain 46,072,834 978 1,981 11 0 2,970 64.5
15 Netherlands 16,678,200 59 859 2 0 920 55.2
16 Italy 60,402,499 1,687 1,519 96 0 3,302 54.7
17 Norway 4,985,870 37 187 14 0 238 47.7
18 Chile 17,133,000 210 530 0 740 43.2
19 Sweden 9,580,424 0 326 43 0 369 38.5
20 Denmark 5,574,000 66 128 16 0 210 37.7

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It’s been hard to miss the coverage of revelations that the US government has been scooping up data from tech giants such as Apple and Facebook – you’ve probably already seen newspaper reporting on the Prism project slides.

What’s surprising is that people think this is cause for renewed concern. Data in the cloud really should not be considered secure. The Americans have some sort of quasi-legel process for handling this, but I doubt other foreign intelligence is And if you are a big corporate, your data – blueprints, designs, release and pricing information – is probably of more interest to them too, as they can then give it to their own companies to produce cheap knockoffs.

And it’s not like the media in this country are any better behaved either. Personally, I regard all data on Facebook as near-enough public. Privacy settings stop my neighbours snooping but little else.

Rather more concerning is the UK involvement in this. According to the Guardian, “Prism would appear to allow GCHQ to circumvent the formal legal process required to seek personal material such as emails, photos and videos from an internet company based outside the UK.”

This is interesting in light of the recently proposed Communications Data Bill. If the security services already have access to the data, what was the bill for? One option is that it would have allowed open use of Prism data in UK courts, without raising questions as to it’s origin.

Another is rather more concerning: In exchange for Prism data we were expected to be able to generate similar data for the US on data travelling through UK-based servers and networks, building a global network of surveillance by states on each other’s citizens.