Court of Appeal confirms: Stealth trans people having sex are criminals


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.

  1. #1 by Malin on 27 June 2013 - 18:57

    I’ve shared this with some other trans guys. I know a number of guys who are young and want to be able to go completely stealth in life, but obviously it’s risky trying to do so.

    • #2 by Gina on 29 June 2013 - 13:10

      Finally everyone is judged the same, no more pulling the pity poor me transcard. You never were and never will be the men or women your portray yourselves to be but at least now the normal people are protected.

      • #3 by Treefinger on 30 June 2013 - 05:46

        Protected from our dirty trans bodies maybe, but not protected under the law from being inflicted with HIV by some random person who decides not to disclose it. Lucky you.

        P.S.: Go fuck yourself.

      • #4 by Taylor on 6 July 2013 - 21:03

        Right – because when “everyone is judged the same,” it’s perfectly “normal” to punish one player in a consensual sex act if that one person is different and icky and weird.

  2. #5 by NC on 27 June 2013 - 19:49

    “This is important: There was no “penis-in-vagina” sex involved in the case.”

    What are you trying to say? P-in-V sex is more important than other forms of sex? More real? That’s the argument people make when they claim that all lesbians are virgins. FYI most lesbians don’t appreciate these sort of claims. Also FYI it’s rubbish.

    • #6 by Lexi on 28 June 2013 - 10:43

      I’m pretty sure it’s in direct response to the fact that, currently, rape seems to be defined only as PIV. The author of this piece is not condoning that, but simply trying to be as close to the law in their deconstruction of the facts of the case as they can be.

      • #7 by Zoe O'Connell on 28 June 2013 - 10:54

        That’s correct, rape in English law requires a penis. (http://www.legislation.gov.uk/ukpga/2003/42/section/1) Otherwise it’s sexual assault.

        However, the point I was getting at is there was no deception as to the “nature of the act” (I.e. using a dildo instead of a penis) because no penis or penis substitute was used in any act considered in the case. The court considered identity rather than the act.

        • #8 by Lexi on 28 June 2013 - 11:05

          And that’s a really important point to make. Glad to have it said again.

  3. #9 by Rebecca on 27 June 2013 - 20:13

    Wearing some sort of coloured badge or tattoo ought to sort out the outing beyond reasonable doubt, right?

    • #10 by Amy on 2 July 2013 - 15:03

      Yeah, I think a yellow patch with “Jude” written in it should do.

  4. #11 by whatthehell on 27 June 2013 - 20:24

    @NC
    They are not saying that in anyway what so ever.

    This is noted because the case is centered around the persons genitals not being what the other partner possibly believed they are. Yet, the genitals were not used at any point in the sexual intercourse. This is why this is pointed out.

    A person could be prosecuted for having sex with someone because of their genitals, even if their genitals are not being used at any point in the safe consented sexual act.

    I don’t see anything saying that non ‘penis in vagina’ sex suddenly isn’t sex.

    Beyond that this is freaking blowing my mind. Apparently NOT telling your partner you have HIV, something that could KILL THEM if transmitted is PERFECTLY FINE. A-OK.

    But not giving a person the life story of your genitals during consensual sex with no risk of any physical harm or disease transmission is TOTALLY ILLEGAL AND DECEIVING. EVEN WHEN YOU DON’T USE SAID GENITALS.

    Jesus christ this is 50 levels of fucked up.

    • #12 by JK on 2 July 2013 - 13:40

      The blogger here’s slightly confused.

      It’s definitely not perfectly ok to not tell your partner you have HIV. If it is, you’re totally liable for GBH.

      What the case here was saying is that not telling your partner you have HIV is not lying about who you are: it doesn’t turn you into someone who’s deceived the other about who you are in order to get them to have sex with you.

      This is definitely weird. The ruling in question:

      “Where one party to sexual activity has a sexually transmissible disease which is not disclosed to the other party any consent that may have been given to that activity by the other party is not thereby vitiated. The act remains a consensual act. However, the party suffering from the sexual transmissible disease will not have any defence to any charge which may result from harm created by that sexual activity, merely by virtue of that consent, because such consent did not include consent to infection by the disease.”

      So if someone with HIV has sex with you while lying about it, that’s not rape, but if you got it, it’s GBH. That’s very weird.

      I think the central point of that ruling is that gender is a bigger portion of who someone is than HIV status. Which almost makes sense.

      It’s worth also noting that there was penis-in-vagina sex alleged, but said charge was dropped after the apellant plead guilty (against legal advice) to all other charges. Which meant that the appeal judge couldn’t rule on that, as it was outwith the bounds of the case…

      • #13 by Zoe O'Connell on 2 July 2013 - 13:47

        I didn’t go into detail on the HIV situation when writing the post but it is slightly different from the other aspects, yes.

        My understanding (Do correct me if I’m wrong here, I haven’t read through the other judgements) is that it’s OK to not mention you have HIV but it’s NOT OK to lie about it if asked. I would think this would have been a reasonable angle to take in the case of gender too. (I.e. if you’re asked if you’re trans and lie, that’s deception)

        There is a risk of being prosecuted for GBH if you infect someone, but I don’t think that’s a reasonable situation given that the decision to take the risk should be down to the person at risk of catching it.

        (I would add that I would share the same view for someone who knows they are infected with any potentially lethal STI, not just HIV. I don’t know if such situations have ever been to trial)

        • #14 by JK on 2 July 2013 - 14:06

          Wait, really?

          You don’t think those with lethal sex diseases should be held responsible for whether or not they’re passing it on to their uninformed sex partners?

          While certainly one should be aware of risk, I don’t think that lying about it should be acceptable. Not sure I like the concept of the law insisting that one should be expected not to believe the word of people…

          • #15 by Zoe O'Connell on 2 July 2013 - 14:24

            The OK/NOT OK bit was a reference to how I understand the law is at the moment, not a statement of what I actually think is OK.

            The “I don’t think it’s reasonable” bit is that I don’t think it’s reasonable that the only possible remedy to the situation is a prosecution for GBH. It should be up to the person they’re having intercourse with to decide to take that risk, so withholding the information in the first place should be a consent issue.

  5. #16 by Stacey on 27 June 2013 - 21:49

    This is nuts. I am near tears reading this. I totally agree with whatthehell.

    If a trans girl, sleeps with a guy, then, as has been known to happen a lot, his mates find out and start to pull the piss out of him for sleeping with a “tranny”. This guy then claims he didn’t know and makes a complaint to the police….. does this mean the poor girl will suffer a similar faith! What total bs.

    I don’t know a lot about the English appeal system, but my God this has to be appealed in every court including the Europe courts if needed.

    This also opens us up to more violent attacks esp if the tabloids run with it, some people will see it as open season on trans peopke and will think it’s OK to abuse and attack us.

  6. #17 by Cristine Shye on 27 June 2013 - 22:51

    Interesting. Very complicated, But as far as the law goes, perhaps not in this particular case but once you have a Gender Recognition Certificate, the law is emphatic, about your gender status. So there could be no consideration as far as the DPP goes for a criminal prsecution, its arguable, that deception involving litigation in a civil action, if it was proved the defendant, deceived a partner, perhaps on the basis of being able to concieve, etc.

    In the case mentioned, it could infringe the confidentiality clause in the Gender Recognition Act, The first person to ‘out a person’ is liable, under the relevant section and it is deemed a criminal act, if no criminal related act was made by the person protected by the act.

    Does that make sense.

    Also a ruling in Reading Crown court, which set a precedent, that has never been repealed, ruled a surgically constructed vagina, was to be regarded in law in common with a natal females vagina..

    This case will probably be subject to a ruling by the EHRC.

  7. #18 by Monica on 27 June 2013 - 23:04

    One could always draft a paper that both would sign beforehand which acknowledges consent by both parties with foreknowledge of ones gender past and present. This would in effect be a legally acceptable document in courts as proof of foreknowledge should they later claim they were never told.

  8. #19 by Melissa McCann on 27 June 2013 - 23:26

    My sister was in M’s position when she was a teenager. She thought “Tracy” was a really cute boy. When my sister found out that her boyfriend was physically female, she was extremely traumatized. To her it was a profound and personal deception and a violation of her most intimate sense of self.
    She doesn’t hate lgbt. Not a drop of homophobia in her. It had nothing to do with fear of lesbianism, or imagining lgbt is a sin or feeling ooky about transgender.
    Sexual identity is tremendously intimate and personal and a primal aspect of how you are aware of yourself. As I would expect lgbt people to be all too excruciatingly aware given the bigotry and sometimes outright hatred they encouter.
    “Scott” violated that very personal part of M’s identity. Things like age, marital status, even HIV status are comparatively superficial. It is possible to be sexually attracted to someone despite all the factors above whereas most heterosexual women will immediately lose all desire for sex with a man who has a vagina no matter how sexy he was before she found out. The fact that M thought she was with a male during sex does not change that. I can see the justice in claiming that it is a form of rape.
    I don’t know whether that violation warrants criminal charges, but if so it isn’t because “Scott” is transgendered. It isn’t because of who he is but because of what he did to another person on a very profound level. Just as, if a gay man raped a heterosexual man, he wouldn’t be convicted because he was gay but because he violated someone else.
    Yes, I would hate to see a conviction used to justify (more) violence or (more) discrimination against lgbt people, but I don’t see that as a sufficient justification for failing to punish someone for–as the court seems to have determined–rape.

    • #20 by Zoe O'Connell on 27 June 2013 - 23:37

      @Melissa – the same statements could be made about religion, HIV status or if you are an undercover police officer. However, we do not criminalise those by saying that the consent was invalid. Why should trans people be singled out for this treatment?

      • #21 by Gina on 29 June 2013 - 13:14

        So basically it is ok for transpeople to violate normal people. Thank your for making that clear. Somehow I do not feel sorry for you any more.

        • #22 by Jane Fae on 29 June 2013 - 15:23

          No, Gina: that wasn’t what was said. I do share many of the concerns expressed here in the sense that some women, some men, won’t care a jot about not having full disclosure over gender history…some will care a great deal.

          There’s a debate that needs to be had about that.

          What i don’t see as debatable is the idea that non-disclosure on gender is somehow totally different from non-disclosure in respect of marital status, HIV status, police officer status and many others.

          Jane

        • #23 by Lou on 17 July 2013 - 17:49

          Reading through the comments here has floored me. As a woman engaged to a transman (who I met and fell in love with as a woman), I just shudder at the narrow-mindedness of many of the respondents here.

          Gina, I’m not trying to single you out (and I haven’t made it through all the comments yet) but so far, yours is one of the most jarring, aside from the people who are just gross and intentionally offensive.

          “Transpeople’ ARE “normal people”. Your terminology, implying that anyone transitioning is not ‘normal’ is just so disturbing and quite frankly, heart-breaking. They’re students/lawyers/doctors/teachers…your neighbour, your clerk at the store, that guy walking down the sidewalk….someone who is transitioning is no less ‘normal’ than you or I.

          Transitioning isn’t an easy decision – physically, emotionally, mentally…it’s painful and terrifying. I watched my partner struggle with it…continue to watch my partner struggle with it. I am so very, very grateful that we are surrounded by a wonderful world here of incredibly supportive family and friends and he’s had such complete support and has faced very little intolerance.

          I wish everyone, before making comments on something they know very little about, would take the time to learn more about it. Contact your local LGBTQ organization or your health clinic. Check your local library for resources. Do online research – there’s a wealth of information out there.

          This case…I am truly shocked that it even made it into court. I understand that M was under the impression that Scott was a natal male and having felt that she was misled, is now disturbed because she had sex with him. So…break up and move on. In my youth, I most certainly had sex with people I regretted. At times I was misled into believing they were someone they were not. Did that scar me for life? Not at all. Did I learn from it and move on? Most certainly.

          Sex with Scott, in whatever method, was just Sex with Scott. Period. It wasn’t sex with a woman because Scott is not a woman. M had sex with her boyfriend and now the relationship is over. Should Scott have disclosed prior? Perhaps….maybe it would have salvaged the relationship, maybe it would have ended the relationship prior to any physical affection…who knows. But was he obligated to do so? No….NO. Because he is Scott.

    • #24 by Harriet on 28 June 2013 - 00:26

      Woah, marital status is not superficial, not for a lot of people whether it’s your own or someone else’s marriage. Equally HIV status. Not even “comparatively”.

      The problem here is the law. People can do a lot of things that are an abuse of trust, that may be very traumatic in terms of not revealing information about themselves, yet we do not legally oblige people to disclose much information. Maybe we think there should be more legislation on this, in which case we’d have to have a very careful think about what we’d want on that mandatory disclosure list, and to think about the consequences.

      Is there anything previously for which failing to disclose invalidates consent? The key thing about this legal case is that the specific sex acts mentioned were done with consent. I don’t know enough about the English legal system but I really hope there’s a way to appeal against this for the sake of future cases.

      • #25 by Zoe O'Connell on 28 June 2013 - 00:33

        There are a few things where deception invalidates consent: Pretending you’re someone els i.e. bait-and-switch-with-the-lights-off, deception as to the nature of the act (I’m a gynaecologist, doing a smear test) and so on. They’re all pretty uncontroversial.

        There is a route of appeal to the UK Supreme Court and from there to the European Court of Human Rights. However, as I understand it, only the parties involved can appeal – not a third party. Quite aside from money, given the emotional cost involved I don’t know if they’d want to appeal. (And personally, I’d feel awful if I was the one who had to even ask)

        • #26 by Harriet on 28 June 2013 - 00:37

          Thanks for the info. It’s frustrating that third parties can’t appeal when clearly this has such huge ramifications for the future.

      • #27 by Melissa McCann on 28 June 2013 - 05:05

        People may feel very strongly about whether a sexual partner is married or has HIV, but those things have nothing to do with their sexual identity. They are, in that sense, on the surface, hence superficial. Not unimportant, but they don’t impact your own sexual identity. You can be sexually attracted to someone who is married to someone else or who has HIV.
        A heterosexual woman, however, is not and probably never will be sexually attracted to another woman. So for someone to represent himself to her as male and engage in sex with her when he is physiologically female is violating a very profound and personal part of her sexual identity.
        To a heterosexual woman, that feels like rape.

        • #28 by Catherine Butler on 28 June 2013 - 08:51

          But this is going to vary from person to person. To a bisexual woman, it might not be a big deal. To a non-transphobic woman who understands that trans men are indeed men, it might well not be a big deal. Whereas to a devoutly religious woman or man, being deceived into extra-marital sex might strike deeply at their sense of self and leave them feeling far more violated than a misapprehension over genitals. Why does the law need to step in to protect people’s sense of sexual identity, but not their sense of religious identity or indeed their physical health (as in the case of HIV)?

  9. #29 by Terri on 27 June 2013 - 23:44

    @Cristine Shye. i see your point at the end, but this was a young, FtM pre-op.

    i think this was wrong, as the T “scott” refused repeatedly to receive any sexual services in return. while the relationship would be childless from his end, without medical help, i dont see the issue otherwise, its not like it was a MtF and sodomized a male. Yes it could be seen as a homosexual sex, but what is the difference when a cismale does it vs a Transmale?

  10. #31 by Melissa McCann on 28 June 2013 - 00:39

    Zoe, no, they really can’t. Religion is nowhere near as primal a part of your identity as your sexual identity. If Scott had lied about his religion, M might have felt indifferent and wondered why he would lie about something so trivial. Or she might have felt betrayed, might have broken up with him if it was that important to her, but she wouldn’t have felt violated at that most basic level of her identity.
    Heterosexual women are attracted to men of other religions all the time. A heterosexual woman can be attracted to a man who has HIV. She can be attracted to an undercover (male) policeman both before and after he outs himself or a married man even if she knows he is married.
    What she can’t be is attracted to other women. Ever. At all (that’s ignoring the flexibility of human sexuality, but clearly M identified as exclusively heterosexual as did my sister). Thinking about having sex with another woman is vaguely icky just as it might be to a homosexual man. That doesn’t mean you hate lesbians, just that you are not attracted. No matter how much you feel attracted to a hunky guy, finding out he has a vagina instantly stops that attraction. You would not have sex with him on a bet because it just feels (and tastes and smells) profoundly wrong.
    That is how gender identity differs from your examples. It is who you are at the most basic, unspoken level. If it weren’t that profoundly personal and essential to identity, then trans people would just slap their foreheads, chuckle and give up all that silly sex-change nonsense. They can’t do that. Neither can a heterosexual woman (or man, obviously).
    Of course “Scott” and Tracy didn’t intend to assault anyone; they genuinely loved their girlfriends. It sucks that they were growing up in an environment that didn’t give them a model for how to establish sexual relationships that work for their identity. It sucks that they were too traumatized to sort this out in counseling rather than court. I hope Law and Order SVU does (another) episode on the subject. Clearly we need more modeling to help young lgbt people navigate relationships without train wrecks like this.
    But don’t minimize the importance of sexual identity. Scott violated someone at the most profound level of her sexuality. Calling that rape doesn’t single out lgbt people. It includes them. It would be prejudicial to give lgbt people a special license to violate another person’s sexuality at that most profound level.

    • #32 by Zoe O'Connell on 28 June 2013 - 00:51

      What you’re describing in the paragraph starting “What she can’t be is attracted to other women” is internalised homophobia/transphobia – something I’ve seen up close before, and something that’s a common problem with people coming to terms with their sexuality. It’s entirely possible in this case that H had some idea about the gender situation, but was also in denial. It’s a messy and undesirable situation, but why is a (possibly) trans person the one who gets criminalised for it?

      Also, the “feels and tastes and smells profoundly wrong” comment suggests ignorance of trans issues – hormones change someone’s smell as much as anything else.

      “It would be prejudicial to give lgbt people a special license to violate another person’s sexuality at that most profound level.” – it’s also prejudicial to force trans people to out themselves, risking death. In particular, how do you prove you told your partner? (There was an element of doubt in this case)

      This is somewhat blunt, but important: Why does a trans person have to worry about someone else’s internalised issues about sexuality? Why are issues someone else is carrying around with them suddenly my problem because of a particular aspect of medical history?

      It’s all based on the whole “trans people are traps” trope.

      And why is “deception” as to gender singled out as criminal, when deception as to HIV status or being an undercover police officer isn’t?

      • #33 by Melissa McCann on 28 June 2013 - 04:01

        Heterosexual women are, by definition, not attracted to other women. They don’t want to touch female genitalia during sex (Maybe their own, but that self-pleasure v the pleasure of touching another person). There is no way of knowing whether M had any idea at all about Scott’s gender/genitalia. I know that my sister had no idea whatsoever.
        Women taste and smell wrong to heterosexual women. If Scott had been on androgen therapy, the taste and smell of his female genitalia might be less off-putting to a heterosexual female, but I don’t see that detail anywhere above. In any case, even if he had been, that doesn’t mean she wants to have anything to do with someone else’s female genitalia during sex.
        Of course trans people should not be forced to out themselves, and that adds tremendously to the difficulty of navigating relationships. If Scott explains his physiological status to M, can he trust her to keep it secret? Will she out him? If he did explain it to her, did he take the time to make sure she really got it? How much time did they spend talking about it? Or did he, fearful of rejection and trying to sound out her reactions, say something obscure that she naively didn’t understand, and he took her neutral response as acceptance? None of that is clear in this case, but there are a thousand ways that communication could go wrong. It’s the same principle that applies in heterosexual rape. Make sure she consents, then make extra sure.
        Fear of being outed doesn’t justify concealing something that is so fundamental to your partner’s sexual identity and which has the potential to do so much damage to her. That level of care for a partner is everyone’s responsibility and isn’t exclusive to trans people.
        We all have to worry about a potential partner’s internalized issues about sexuality as well as their sexual orientation and the potential flexibility of that orientation. When you dismiss your partner’s sexual identity as not your problem, that’s where sex becomes predatory regardless of anyone’s gender/physiology/orientation.
        I seems to me that trans people could only become “traps” if they aren’t as attentive of their partners’ sexual identity and well-being as they would like their partners to be of theirs.
        I want to ask, because I think there’s a wide gulf of fundamental experience of sexuality here: I’ve said several times that sexual identity is so fundamental to self-concept that violation of that sexual identity is experienced as tantamount to rape. That is how gender deception differs from HIV status or being an undercover police officer (although undisclosed HIV maybe *should* be considered assault). Neither of those deceptions comes anywhere near a person’s fundamental sense of self.
        However, your argument seems to equate sexual identity with something much less fundamental. Possibly more fluid? Religion, for example, is fairly shallow. Beliefs may be strongly held, but they can be changed without injury to the person who holds them. Sexual identity cannot.
        But individuals vary widely in their orientation, and some people are very flexible in terms of who triggers their sexual attraction reflexes.
        Being comfortably heterosexual, I may well be failing to grok your fundamental experience of sexual identity. It’s possible that someone less attached to one end or the other of the hetero/homo-sexual scale doesn’t experience sexual identity the same way I do.
        (I recently wrote a blog post about that understanding gap http://tinyurl.com/p67yuud I’m sorry, I know it’s rude to flog your blog; I mean it as an explanation of what I am trying to learn. Feel free to ignore)
        If you were willing to share that experience in whatever way you wished, I would appreciate your improving my understanding.

        • #34 by Zoe O'Connell on 28 June 2013 - 09:11

          “Heterosexual women are, by definition, not attracted to other women. They don’t want to touch female genitalia during sex”

          This is genital essentialist and the basis for much transphobia. As a point on which to argue the case, I reject it absolutely. It’s also irrelevant to this case, because the genitals of McNally were not involved. The case would not be alarming in the way that it is if there have been penetration with a dildo that M believed was a penis, for example, and the judgement hinged on use of a prosthetic in sex. Instead, the judgement hinges on invalidating McNally’s gender identity as expressed at that moment.

          “Fear of being outed doesn’t justify concealing something that is so fundamental to your partner’s sexual identity and which has the potential to do so much damage to her. That level of care for a partner is everyone’s responsibility and isn’t exclusive to trans people.”

          In terms of being honest with a partner (And that’s a tricky area, because there’s a world of difference between a decade-long intimate relationship with kids and an unplanned grope in a cupboard with a stranger at a party) I agree honesty is best. However, it is only in the case of trans folk that this has been criminalised.

          “I’ve said several times that sexual identity is so fundamental to self-concept that violation of that sexual identity is experienced as tantamount to rape. That is how gender deception differs from HIV status or being an undercover police officer (although undisclosed HIV maybe *should* be considered assault). Neither of those deceptions comes anywhere near a person’s fundamental sense of self.”

          You’re assuming everyone else things like you do – this pattern of thought is common, sure, but it’s not universal. Other people may care more about religion, race, age, disability, marital status or some other protected characteristic. This judgement means that the only protected group that has to worry about the primary phobia of their partner is trans folk.

          • #35 by Lou on 17 July 2013 - 17:55

            Thank you Zoe – very well put.

    • #36 by Natacha on 28 June 2013 - 10:37

      “Religion is nowhere near as primal a part of your identity as your sexual identity.”

      This is not the case with most religious people I know.

      Secondly, how does having sex with a person validate or invalidate anyone’s identity?

      If she didn’t feel violated at the time how come that changes later on? My suggestion is that, rather than it being an invalidation of identity it represents an exposing of their fear of having their identity challenged, which is a different thing entirely.

  11. #37 by Andi Grant on 28 June 2013 - 00:49

    I don’t see how a guy engaging in heterosexual sex with his heterosexual girlfriend “violates (her) personal sexuality”, unless she invalidates his identity as a guy. He’s not a woman just because she determines that her perception of his identity outweighs his own.

    • #38 by Melissa McCann on 28 June 2013 - 04:22

      In this case, Scott identified as male, but was physiologically female.
      M was heterosexual female which means that she is not physically attracted to anyone who is physiologically female (there are variations among women, but I’m basing these suppositions on the fact that Scott is being tried for assault on the basis of representing himself as being physiologically male).
      Scott may identify himself as a guy, but M still experiences his body as female. It may have been heterosexual sex to him, but to her, it wasn’t.
      To dismiss her experience and her sexual preference is, as Mothership says below, sexual abuse.

      • #39 by Andi Grant on 28 June 2013 - 05:49

        This is an absurd recategorization of the term heterosexual, which implies nothing more than a sexual attraction to people of a gender opposite of your own. A heterosexual woman would be engaging in a heterosexual relationship, no matter whether her partner was a cis man or a trans man. Scott being trans does not make their relationship a homosexual one, and to frame it as such utterly eradicates the entire concept of sexual preference, which is literally an entirely separate issue from gender identity. Once again, M’s framing of Scott as ‘not a real man’ or ‘a fake man’ or ‘lying about being a woman’ are transphobic explanations that erase Scott’s personally defined identity.

        If you don’t want to engage in sexual relationships with potential trans partners, it’s your responsibility to convey that information to them so that they can make an accurate and informed display of consent. Trans people are under no obligation to out their medical history to anyone, and the reason why this ruling is so worrying is because it ignores this fact in order to persecute based on outdated and disciminatory concepts of gender identity.

        • #40 by Melissa McCann on 28 June 2013 - 08:15

          What I understand from what I am hearing from the perspective of a heterosexual woman is:

          1) Scott’s gender identity is more important than M’s sexual orientation. Because Scott is trans, it is okay for him to have sex with someone who would have refused to have sex with him had she known that he still had a female body.

          2) M’s feelings of betrayal and violation are transphobic and therefore invalid. Why is she so upset about it anyway?

          I don’t want Scott to get beaten up or killed because he comes out to the wrong person. I don’t think he should be jailed or labeled as a sex offender. He’s a teenager struggling with something our culture makes unnecessarily difficult, but he did hurt someone. Badly. Unwittingly. But badly.

          No, of course trans people are under no obligation to share their medical history with anyone. Ever.
          This precedent isn’t about you having to out yourself. You don’t. It’s about how you have to treat other people. We make similar laws about men making sure that a woman consents to sex.
          You have to respect people’s personal boundaries and their personal integrity (in the sense of wholeness, being of one piece, not broken). You have to get their consent before you intrude on their most vulnerable and private self.
          If you don’t trust a potential lover enough to mention that you are trans before you have sex, then having them find out on their own in the middle of the act is not going to go over well at all.

          • #41 by Andi Grant on 29 June 2013 - 00:00

            1) Absolutely no mention of importance was made. You are reading things into statements that aren’t there. Scott’s gender identity CANNOT BE INVALIDATED by M. Scott is a man regardless of whatever M thinks he is. M cannot dictate what Scott’s gender identity is.

            2) M’s feelings of betrayal and violation are predicated on her erasure of his gender identity. She assumed he was a man (which he is) until she became aware that he was trans. At that point she considered her own opinion of Scott’s gender identity to be more valid than Scott’s opinion. Trans people aren’t their assigned sex just because people decide they are.

            Make no mistake, this incident comes down to a cis woman punishing a trans man for not being cis, and not informing her of his medical history (which he was under NO obligation to disclose to her).

      • #42 by Natacha on 28 June 2013 - 10:51

        At some point M must have been attracted to Scott however and must have enjoyed at least one, if not more of the sexuak encounters because she went back for more. These facts undermined your entire argument.

      • #43 by Samantha Stone on 3 July 2013 - 15:50

        “It may have been heterosexual sex to him, but to her, it wasn’t.”

        At the time it most definitely was heterosexual sex in her mind. If not, it wouldn’t have needed her mother to confront Scott –on the fourth occasion–

        Only after the fourth attempt did she decide her consent was retroactively null and void. Not based on how the sex felt or else this would have happened on the first occasion, but after she’d discovered Scott’s previous history and let her internalised transphobia and homophobia re-evaluate previous experiences.

        Until that fourth occasion she was happy experiencing what she felt was heterosexual sex. This is all down to her mind, not Scott’s genitals…

  12. #44 by Mothership on 28 June 2013 - 00:55

    Well thank fuck for that. I don’t care if you’ve already had the “sex change” & have a “neo-vagina” i’m still not going to consent to having sex with cosmetically altered men.
    Sex requires consent which means knowing the sex of the person you’re having sex with. If you don’t have consent then its sexual abuse.

  13. #45 by Andi Grant on 28 June 2013 - 01:05

    Can I withdraw consent retroactive if I find out my partner is transphobic and they didn’t inform me as such beforehand?

  14. #46 by nonameyesname on 28 June 2013 - 01:07

    @Mothership

    oh for fuck’s sake

    it’s not even an article about trans women and you feel the need to direct the transphobic comments towards trans women

    I take it you’re a radfem, then? That really didn’t take long

  15. #47 by Andi Grant on 28 June 2013 - 01:09

    After all, if I had known they were transphobic beforehand I would have never consented to sex. Why should they be allowed to deny me information that interferes with my right to consent?

  16. #48 by Andi Grant on 28 June 2013 - 01:11

    I think that all transphobes should have to announce that they are transphobic to all potential sexual partners, so that their partners can make rational and informed decisions about whether to engage in sexual relations with a transphobe. After all, transphobia can lead to incredible physical and psychological harm.

  17. #49 by Mjf on 28 June 2013 - 02:55

    I find it interesting and somewhat disturbing that the entire article refers to “Scott” using female pronouns, when he has clearly expressed the desire to be male (hence the need for such an article). If he identifies as male then he is male. If he has not undergone surgery then it is probably more conscientious to let a partner know but I think “deception” is pushing it. He hasn’t lied about his identity, merely hasn’t yet undergone the required treatment to make his body match his mind.

    • #50 by Melissa McCann on 28 June 2013 - 04:24

      It becomes deception when he engages in sex with someone who believes him to be physically male as well as mentally/emotionally.

    • #51 by Melissa McCann on 28 June 2013 - 04:31

      It becomes deception when he engages in sex with someone who believes him to be *physically* male as well as mentally/emotionally. And while many people may be equally attracted to the genitalia of both sexes, at least half the population strongly prefers one or the other, and much of that preference is hard-wired and triggered by very primitive parts of our brains that respond to subconscious cues like smell or the sound of a voice.
      We are physical beings. It makes for messy relationships, and it’s a lot more work than if we were all built like Barbie and Ken (or some version of intersex), but it’s what we’ve got to work with.

      • #52 by Andi Grant on 28 June 2013 - 05:39

        You do realize the key point that underlies this whole situation is that the defendant was _charged with a crime_ for ‘deception’, which implies a willful attempt to deceive. This is not a ‘messy relationship’, and to frame it as such is incredibly disingenuous. The end result of this ruling will be that all trans people in the UK are bound by law to out themselves to any and all potential partners, or they leave themselves open to a conviction for sexual assault on the basis of ‘deception’. In effect, the law is now able to prosecute trans people for being born trans and not revealing that information to potential partners, which is intensely discriminatory. Quibbling over whether someone is ‘physically’ one sex or the other ignores that trans people are being criminalised for being trans.

        • #53 by Andi Grant on 28 June 2013 - 05:55

          I mean, you literally don’t have to inform your partner if you have a potentially lethal STD like HIV or AIDS. You cannot be prosecuted for withholding information about your medical history if you have HIV. You CAN if you withhold information about your medical history if it involves being trans. Being trans does not carry with it the potential of contracting a deadly STD, and yet exposing someone to HIV is not a crime while being trans is. This is outrageous.

        • #54 by Melissa McCann on 28 June 2013 - 07:01

          Yes, of course, you absolutely do have to tell your potential sex partners something about yourself that has the potential to be as destructive to them as this is. People have mentioned religion, marital status, undercover cop etc., but none of those even begin to come close to being as damaging as this. So you do have to disclose this to your potential lovers even if you think it’s transphobic of them to feel the way they do about their sexual identity. You still have to tell them. It stinks that having that level of care for your potential lovers puts you at a genuine risk of your life if you tell the wrong person, but that can’t justify what amounts to rape.
          Every man (and woman, but it seldom comes up) in the US is bound by law to obtain the consent of his potential lovers or leave himself open to a conviction of sexual assault. Even if the woman is unconscious and presumably doesn’t know that somebody is screwing her. She still feels raped when the pics show up on Facebook the next morning.
          In this case, M was unconscious of the fact that she was having sex with a woman (from her own biological perspective)–which she would not have consented to do if she had been conscious of it. To the woman, that feels like rape. Because she would never have chosen to have sex with a woman had she known.
          Many men feel that it’s not fair that they can be prosecuted and jailed for sex that they genuinely felt was consensual enough to justify the act. And they have the same problem with proving consent that trans people have with proving disclosure.
          The only protection there is to make very, very sure that your partner is fully consenting–including knowing everything she needs to know-not what you think she needs to know, but what she would want to know.
          In this case, this is not a trans person being criminalized for being trans; Scott is more than just a transexual. He’s a person who made a bad judgment call and hurt someone. But he’s not being singled out. He’s being treated like any other 17 year old man who didn’t make sure his partner had given her consent.
          And yeah, it’s weird that as we slowly sort out finally recognizing the rights and humanity, hell, the *existence* of trans people, we are also groping toward an understanding of how transexuality intersects with other gender identities. In this case, we’ve established a greater understanding of what constitutes consent. For everybody.

          • #55 by Malin on 28 June 2013 - 07:41

            Melissa, I’ve read your comments but have to disagree. Not all straight identified people react like you. Some actually care about the person they’re having sex with. Also, you talk as those sexuality is a fixed thing and never changes through life. This simply isn’t true.

            • #56 by Melissa McCann on 28 June 2013 - 08:35

              Of course. I’ve mentioned several times that there is some flexibility in human sexuality, a huge range from 100% straight to 100% gay and every point in between. And many people are flexible enough to adjust to a lover who doesn’t fit into the ten-percent at each end of the spectrum who are exclusively one or the other.
              But not all. Maybe not even most–I don’t know. More than I think, probably.
              But if humans were able to switch from being attracted to male bodies to being attracted to female bodies, all those pray-the-gay-away programs would work. THey don’t, and they are horribly, horribly destructive to their…I don’t know what to call them…clients? Patients?
              And love doesn’t change sexual orientation either. If you are one of those people toward the ends of the spectrum, then your lover’s sex change may very well change your sexual response. You may still care very deeply about that person–if you don’t feel crushed and hurt and betrayed–but you have no more physical sexual response to them.
              Again, many people have the biological flexibility to adapt. Many don’t. That’s not lack of caring, that’s biology.
              And if you care about the person you are having sex with, why would you not let them know that they may encounter something expected when the clothes come off? (which is the origin of the whole topic)

              • #57 by Jane Fae on 29 June 2013 - 15:27

                Hey, all: can you stop replying to the nth degree, because the replies get very thin (and hard to read!)

    • #58 by Zoe O'Connell on 28 June 2013 - 09:15

      The only references to McNally’s gender are direct quotes from the judgement. I have been avoiding any references to their gender, as I do not know how they would express it themselves. I would urge caution labelling McNally as a trans man and using male pronouns too as that may be appropriative.

  18. #59 by Michelle Gould on 28 June 2013 - 03:14

    Why all the focus on genitals?

  19. #60 by SM on 28 June 2013 - 07:12

    I have nothing to contribute since everyone else has expressed the absurdity and rage-inducing nature of this judgment far better than I could. However, one of the details in the judgment is confusing me and I was wondering if somebody could be kind enough to help. Specifically, why did the complainant’s mother contact McNally’s school about the matter?

    Is that the path advised in order to investigate a matter relating to a young adult or was she simply being as vindictive as feasibly possible? I appreciate that McNally identified using a name identical to that of another student but that’s hollow reasoning for contacting the school about the matter.

    I only ask because McNally clearly suffered a great deal of turmoil and I want to empathise as much as I can, understanding the extent to which society felt it was acceptable to apply exceptionally callous pressure in every domain of their life is part of that.

    Thank you so much if anyone replies, it’s greatly appreciated.

    • #61 by Zoe O'Connell on 28 June 2013 - 09:02

      I suspect contact with the school was because she didn’t know what else do to.

  20. #62 by Rebecca on 28 June 2013 - 07:33

    Lots of feminists genuinely think we’re all rapists – perhaps some sort of identifying badge or tattoo would be a small price to pay to avoid jail or worse :(

    • #63 by Natacha on 28 June 2013 - 10:52

      Yeah maybe all trans people should go around wearing a pink triangle…

  21. #64 by Ollie on 28 June 2013 - 08:14

    This is awful. What people seem to be failing to realise is that apart from the issues of genitals, this was consensual sex. Scott has expressed the wish to change sex, so In short I see him as a man, just with no penis. So, now does everyone have to disclose the nature of their genitals before sex? Is it rape if a woman has sex with a man that didn’t tell her he lost his penis in an accident? If an intersex person has sex with someone but doesn’t disclose their full medical history, is that sexual assault? And you can give someone HIV without them even knowing is legal, but having sex without a penis isn’t? This ruling is ridiculous and I hope you see why.

    • #65 by Melissa McCann on 28 June 2013 - 09:05

      If you care about your partner, why would you not let her know ahead of time that she might find something unexpected in the middle of the night?

      • #66 by Andi Grant on 29 June 2013 - 04:45

        Because being trans is a ctime in our society. Because facing prejudice, fear, disgust and discrimination is par for the course. Because we’re treated as liars and frauds for having the sheer audacity to be born with a medical condition like gender dysphoria, for which there is no other cure than transition. Because even if people accept and acknowledge us and assume we’re just like everyone else, saying two short words can literally change all that in a second. Because people actively think our bodies are abhorrent and disgusting, even though that very same body might have enticed and excited them moments prior. Because the default mindset in our society is still that trans people are wrong, on the most profound level.

  22. #67 by Melanie on 28 June 2013 - 08:23

    Melissa. Me thinks you doth protest too much!

    Plenty of CIS women I know who are ostensibly heterosexual have had a relationship with a woman. The fact you are arguing so strongly about how vaginas repulse you makes me think that there’s more here.

    You fall for a person and not their genitals. Sex isn’t everything. It’s not blak ad white and if you think otherwise examine yourself.

    • #68 by Melissa McCann on 28 June 2013 - 08:49

      Yes, there is a huge variability in human sexual orientation from 100% heterosexual to 100% homosexual and every point in between. Some people are more or less equally attracted to both sexes or might have a homosexual relationship or two and still identify themselves as heterosexual. and vice versa.
      Other people are close enough to the extremes of the scale that he might look at, say, a woman and feel no sexual attraction at all. He would be repelled by the prospect of putting his tongue in her mouth let alone her… It’s not because he’s secretly heterosexual and in denial. It’s because he’s gay, and he just doesn’t really have a lot of flexibility there. No matter how many women have the bizarre idea that they can “change him.”
      Some men fall closer to the middle of the scale and have occasional relationships with women. Or the odd fantasy about women. Others just can’t go there at all.
      So yes, you fall for the person, but if you happen to be close to one end of the scale, that person will be the sex dictated by your biological programming.

  23. #69 by krissie on 28 June 2013 - 10:56

    I, for one, am quite shocked to see that someone is actually arguing that having sex while trans without first outing yourself os mote famaging to a prosprctive parter than to slowly kill them with HIV.

    • #70 by krissie on 28 June 2013 - 12:35

      Damn this new keyboard takes some getting used to!

  24. #71 by Tommy on 28 June 2013 - 13:54

    So not telling your partner you have a cunt is WORSE than not telling them you have a potentially deadly disease, aka “OH NOES I COULD BE A LEZ” is worse than “OH NOES I COULD DIE”?!? Are you fucking kidding me?!?

  25. #72 by Claire Wilson on 28 June 2013 - 15:49

    Melissa, to quote an American politician, on what planet do you spend most of your life?

    The Court of Appeals has effectively made it illegal for any transgender person to have any kind of sexual contact with someone else unless they can prove categorically that the other person knew their gender history, and you are absolutely fine with this?

    You are absolutely fine with the idea that sexual contact can happen between two people without either party disclosing anything about themselves at all UNLESS one person happens to be transgender. They can lie about anything they like, they can hide anything they like, they just cannot be transgender.

    You do not have the faintest understanding of the implications of this, do you?! Everyone has the right to a private life, except transgender people. It’s sickening.

  26. #73 by Honestly on 28 June 2013 - 16:25

    I just don’t see how the court could have made any other decision. This sentence says it all: “her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception”. HER FREEDOM TO CHOOSE WAS REMOVED. Not okay. Never okay. Shouldn’t be OK if it was HIV either. You don’t trick people into having sex with you like that. You just don’t. It’s dishonest and scummy.

    • #74 by Seaking on 28 June 2013 - 18:33

      It’s not “tricking” people anymore than not telling your partner that you don’t like chocolate is “tricking” people. You could easily rewrite that passage to say this:

      “her preference (her freedom to choose whether or not to have a sexual encounter with someone who liked chocolate) was removed by the appellant’s deception”.

      And it would make just as much sense. In both cases M has made an assumption about her partner (In one case that they like chocolate, in the other that they have male genitalia), and then upon finding out that her assumption was faulty, decided to retroactively call it deception. There was no deception, only false assumptions.

      Yes, it’s obviously not reasonable to assume that any given person liking chocolate is an unspoken guarantee, without explicitly asking them. But here’s the rub: THIS APPLIES TO THE ASSUMPTION ABOUT PHYSIOLOGY AS WELL. A prospective partner having the genitalia you expect to correspond with the gender they present as is NOT an unspoken guarantee. It is NOT something you can assume with no reasonable doubt. It is NOT the duty of a trans person to inform you that any given assumption you have might in fact be faulty. If a person is making assumptions that if proven wrong would cause them distress / trauma / whatever, then it is up to them to ASK whether the reality of the situation lines up with those assumptions.

      It doesn’t matter how reasonable M thinks their assumption is. It is possible, through improper education, for someone to go through life in such a way that the assumption that all blonde people like chocolate SEEMS reasonable…that assumption is still not reasonable. Likewise, it is possible, THROUGH IMPROPER EDUCATION, for someone to go through life in such a way that the assumption that all people who present as a given gender have a specific set of genitalia SEEMS reasonable…that assumption is still not reasonable. And CERTAINLY not to the agree of deception.

  27. #75 by Honestly on 28 June 2013 - 16:26

    Just to clarify: I have NOTHING against trans folks. More power to ya. I have EVERYTHING against deception, lying and removing someones freedom to choose.

  28. #76 by Malin on 28 June 2013 - 18:53

    If you think that a trans people is “tricking” people with their true gender – you just don’t get what transition actually is.

    I don’t think there’s anything I can say that will convince you. You will forever see men like me as something we have never been – women. The genders trans people are assigned at birth are just illusions. They’re the expectations of those around us based on nothing more than a judgement made about the basis of our genitals when we’re babies. Everything is build up from that. We’re expected to like certain things and want certain things. Some of us worked really hard to maintain those illusions, and for some of us nature really worked a trick to maintain that illusion. But it’s still just an illusion. And then we remove the illusion and start living as ourselves and people like you say that we’re TRICKING people by doing so! It’s so frustrating and tiring overcoming all the barriers to being ourselves and then that’s made at least ten fold worse by attitudes like yours Honestly. Attitudes like that make it harder and more dangerous to live as our true genders. You remove our choice and freedom. You make our lives horrible. Massives numbers of trans people suffer domestic violence. Many have their friends and family turn their backs on them. Some suffer violence. Some are physically abused and even murdered. If I remember correctly something like more than 80% of trans people suffer or have suffered from anxiety and depression. And the true number is likely higher as there are always those who refuse to admit to their suffering because we stigmatise those with poor mental health. Over a third make at least one attempt to take their own lives. We have been described as one of the most vulnerable groups in europe. Decisions like the ones made in this case, and the attitudes that some people are showing in support the whole “OMG tranz cooties!” re-enforce that. It serves to strip away our human rights and make us second class citizens who live in more danger than other members of society of similar socio-economic backgrounds.

    But no, we’re tricking people and hurting them. And it’s completely reasonable to want to throw up and cry rape when you learn that you’ve had sex with one of us. But you know, more power to us because you have nothing against us.

    All that is necessary for the triumph of evil is that good men do nothing. So stand by and watch as our rights are stripped away.

  29. #77 by Rachel Bowyer on 28 June 2013 - 19:39

    Your blog post has the first name of the victim – I suspect that you pulled a very early copy from BAILII as the name has now been redacted.

    As this is a sexual offence no information that could lead to the identification of the victim can be published – could you edit your blog to match BAILII – thanks

  30. #79 by Sunbird on 28 June 2013 - 21:25

    If one doesn’t assert oneself as male to the court but did to a lover then I find it unsurprising if a court finds deception. It’s unclear how the appelant described his or her gender but certainly the court seems to have seen it as female.

    If, on the other hand, the normal transition situation applied, the appelant would assert they are male. To find deception a court would first have to find the appelant to be female. That finding alone would seem to generate an appealable point of law in the context of transition.

    So I think those rushing to apply this judgement to transition might be premature. It may however have more relevance to anybody who cross dresses and in that sense applies perhaps to some trans people, but it doesn’t read as a judgement intended to set principles across a wide range of circumstances, just one very much concentrated on the particular facts.

  31. #80 by Lorenzo on 28 June 2013 - 22:55

    So basically… Unless we have a gender recognition certificate we aren’t allowed to have sex/dates etc unless we tell the person and get full consent from them otherwise we will b done for deception? That’s as pathetic as saying u wldnt want to have sex with someone with a little penis and then crying rape coz halfway through u found out they did. As if we aren’t singled out enough as a minority, and in most cases discriminated against and basically terrified most of the time of accidentally outing ourselves n being met with violence, hatred and trans phobia. Now we lose more rights. I don’t tell anyone my past history without being able to fully trust them, does that make me guilty of fraud? Does this apply to gay men who stay in the closet and date and have sex with women? Or vice versa with lesbians? this M girl wanted to have sex with Scott regardless of knowing he was male or not and only changed her mind after she’d already done it? How come she didn’t ask him about his genitals if she was so worried about it all? More to the point, she must have been attracted to him right? Else there never wld have been any sex in the first place. The whole “heterosexual woman aren’t attracted to woman” is bs, attraction is for the person. How many times can u think of tht u saw someone from behind and were attracted to them then found out it was the opposite gender to ur usual attraction? did the attraction disappear? No it did not, but the relevant phobia kicked in. As in “I’m not gay” “I’m not lesbian” “that’s gross” etc. every human is a little bit bi, and every human is attractive. It’s just down to personal preference. M should b at fault as much as Scott considering how little they obviously knew each other. I can’t see this being a problem between heterosexual cisgendered couples, or is the next thing gunna b “u didn’t tell me ur family were chavs before we had sex therefore u deceived me despite the fact we had consensual sex twenty times and I enjoyed every minute prior to finding out said information” end rant

  32. #81 by UK Crime Blog on 28 June 2013 - 23:07

    Very interesting case that sparked a lot of debate.
    Here is our write up from a criminal lawyers point of view if anyone is interested –

    http://ukcrime.wordpress.com/2013/06/27/when-is-consent-not-consent/

  33. #82 by Alexsia on 29 June 2013 - 03:31

    Just wondering though a supposed heterosexual couple get married have children. One of the partners then disclose that they are actually transsexual and want and go on to put right there gender. Have they in effect raped there husband or wife because they were deceitful? And there marriage illegal? And children illegitimate?

  34. #83 by Alexsia on 29 June 2013 - 03:32

    Also thinking for myself post op I have a GRC and my birth certificate says female so now I have to disclose that I once had gender Dysphoria and surgery to correct that? I’m wondering if a genetic woman has breast augmentation surgery breasts been secondary sexual characteristics that she should inform her partner that they are not real and that she has been surgically altered. if a woman has an illness or accident or chooses to have a hysterectomy should she also disclose this by law to her partner would she be any less of a woman. I myself am honest about my history but now I have to have some kind of pre sexual contract drawn up by a solicitor is wrong

  35. #84 by Rachel Bowyer on 29 June 2013 - 16:33

  36. #85 by Jane Fae on 30 June 2013 - 01:03

    I really wish i didn’t have this story to tell from tonight..but its sadly apposite:

    http://faeinterrupted.wordpress.com/2013/06/30/the-reality-of-ignorant-judgment/

  37. #86 by Jane McQueen on 2 July 2013 - 12:32

    I don’t know where to start with this, It is quote mining and misinformation at its very worst. The McNally case was an appeal on two grounds, first being a procedural issue that the advice given by the legal team was improper and inaccurate which lead to an unfair guilty plea and secondly that the punishment was unduly harsh and disproportionate.

    The first grounds of appeal were dismissed and the second was upheld, and subsequently the punishment was drastically reduced.

    All the paragraphs you have quote mined on this are the facts of the case, which are not case law. They exist in a judgement so that lawyers reading it can know the facts so they can see how the judges came to the decision that they did.

    Paragraph 26, is at best an obiter dictum statement, which is just a judges opinion on something and is not legally binding on lower courts and can be ignored in future trials.

    The thing to remember, which a lot of people are forgetting here is, that rights do not exist in isolation and especially when it comes to sex you do need to consider the rights of the other person(s) involved. To remove the legal rights of one person to benefit another person you need a dam good reason.

    • #87 by Zoe O'Connell on 2 July 2013 - 13:23

      Jane,

      We’ve been over this elsewhere. I’ll give a summary of my views here, but I’m not going to enter into a lengthy exchange on it again.

      The court needed to determine if the appellant had been misadvised as to a point of law to decide if the appeal on the guilty plea could be successful. The point of law they had to consider was if deception as to gender vitiated consent.

      Whether or not paragraph 26 is ratio or obiter is largely irrelevant, given that one of the most senior judges in the country has given his view on the law and that will be considered “strongly persuasive” in our legal system even as obiter.

      I have not seen any source to support the idea that it should be considered obiter other than assertions without citation, but similarly I cannot produce anything to say that it’s binding, so it’s an open point. (You seem to suggest, by stating that “at best” it’s obiter that it might be something less than this. I am not clear what else you could consider it to be)

      Regardless, whilst having evidence either way might cause me to alter some of the phrasing in the first paragraph, I do not regard it as relevant to the criminalisation of Trans folk. This is going to inform the actions of the Crown Prosecution Service and also the advice given by solicitors to their clients facing such charges in future. The criminal justice system doesn’t start post-conviction. It starts the moment you come into contact with the police.

      Equivocating about the exact nature of the conflagration going on around you whilst sitting in an ivory tower does not help those on the ground.

      Luckily, the Crown Prosecution Service are being asked to produce guidance on this. I’ll probably not like what they decide (Maybe I’ll be pleasantly surprised, it happens sometimes) but at least we’ll then know where we stand.

      As to the balance of rights issue, that’s something I’m happy to debate at length, as balancing out the rights of one group against another is a large part of what I do politically elsewhere. I do not consider it a fair balance of rights that deception on gender should be criminalised when on other issues it’s OK. Do do so is enshrining a right to homophobia in law beyond the provisions of free speech.

      My view would likely be different if the courts had historically taken a much harsher view when it comes to deception and consent, but in general it’s been happy to rule that only the nature of the act makes a difference, not the identity or medical history of the participants.

      It’s perhaps unsurprising that in a marginalised group of people like the trans community, few people share your apparent view that the homophobic aesthetics of one person should outweigh the right to life and safety of another.

      • #88 by Rachel Bowyer on 2 July 2013 - 15:42

        Let me start by citing a source for the ratio of the case. This is how it appears in the ICLR

        “Consent to sexual penetration could be vitiated by a deception by the defendant as to gender because vitiating deceptions were not limited to deceptions relating to features of the offence.”

        http://cases.iclr.co.uk/Subscr/search.aspx?docID=WLRD2013-256

        The reason this is the ratio is as follows. Justine appealed sentence and conviction. She appealed her conviction on three separate grounds (Para 13):

        (1) Bad legal advice
        (2) Pleaded guilty to a non-existent offence (elements of the offence were not made out)
        (3) Plea was equivocale

        Leveson states that (2) is enough to quash the conviction so deals with it first although noting that if (2) is true then it undermines the quality of the advice (1).

        In order to disallow the appeal on (2), Leveson needs to make a clear statement of law that deception as to gender can vitiate consent.

  38. #89 by Jane Charles on 5 July 2013 - 11:32

    I’m very confused about this:

    1. Clearly M found Scott attractive before the sex acts occurred – if she did not it is unlikely she would not have consented

    Just because she found Scott attractive does not mean her sexual identity is being attacked/challenged. If the allegations are true, then M had no idea that Scott was genetically female until after the acts. I understand that some people feel this is an abuse of trust, but I feel that no actual deception occurred.

    Scott presented as male, feels male and so M was attracted to what was (and is), for all intents and purposes, a male in all the sexual acts described. The fact that she was no longer attracted to the person after the act and therefore wished to remove consent is no different to finding out that the person you were with is actually married, or actually piss-poor instead of rich, or actually can’t get you that role in whatever movie they said they would.

    In all other cases of deception before sex, this is not an issue, but the moment gender comes into play, somehow that is a massive deal?

    I may not understand this from the same perspective as other people simply because of my sexuality (pansexual) but from my understanding, in the following situation, person X could not be considered a criminal in any other setting other than gender identy:

    Person X meets Person Y
    They are attracted to one another
    Person X tells person Y a lie which may be a factor in attraction
    Person X and Y perform a sexual act
    Person X and Y wait some weeks and perform another sexual act
    Person Y finds out that Person X was lying and wants to charge them with sexual assault/rape

    How can the law protect person X in one situation, but not another, when all are forms of deception?

    2. Now for a hypothetical situation:
    If Scott was genetically male, but suffered from an accident when young and so no longer had a penis, would this still be an issue? If the issue is with Scott’s genitals, then clearly one should be found guilty of deception in the same manner as described in the blog post above?
    Scott presented as male, apparently looked male enough to M to be attractive and did sex acts that a male with no penis could also perform. If the male without a penis were to only later reveal they had no penis AFTER the acts were performed, there would be no grounds for a case (as far as I’m aware). If Scott is transgendered, (which is highly likely) then he sees himself as essentially a male without a penis, but with a vagina instead. I would just wonder…. would there still be a case if it was just a male with no penis?

(will not be published)


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