Sexual Intimacy and Gender Identity 'Fraud'

Reframing the Legal and Ethical Debate

Alex Sharpe

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351384131
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This book is a legal and political intervention into a contemporary debate concerning the appropriateness of sexual offence prosecutions brought against young gender non-conforming people for so-called 'gender identity fraud'. It comes down squarely against prosecution. To that end, it offers a series of principled objections based both on liberal principles, and arguments derived from queer and feminist theories.

Thus prosecution will be challenged as criminal law overreach and as a spectacular example of legal inconsistency, but also as indicative of a failure to grasp the complexity of sexual desire and its disavowal. In particular, the book will think through the concepts of consent, harm and deception and their legal application to these specific forms of intimacy. In doing so, it will reveal how cisnormativity frames the legal interpretation of each and how this serves to preclude more marginal perspectives.

Beyond law, the book takes up the ethical challenge of the non-disclosure of gender history. Rather than dwelling on this omission, it argues that we ought to focus on a cisgender demand to know as the proper object of ethical inquiry. Finally, and as an act of legal and ethical re-imagination, the book offers a queer counter-judgment to R v McNally, the only case involving a gender non-conforming defendant, so far, to have come before the Court of Appeal.

Part I

Preliminaries

Chapter 1

Introduction

This book is concerned with questions of intimacy, desire and the liberal state. More specifically, it is concerned to interrogate sexual offence prosecutions brought in the UK based on a claim of fraud. Thus, in writing this book, I am not interested in sexual coercion, or behaviour that might be described as borderline coercive. There is an abundance of criminal law, philosophical and feminist literature that concerns itself with such important questions (Estrich, 1987; West, 1996; Lacey, 1998; Archard, 1998; Schulhofer, 1998; Gardner and Shute, 2000; McGregor, 2005). Rather, I am concerned with acts or omissions that might legally be classified as deceptive. In recent years, there has been an increase in prosecutions in circumstances where sexual intimacy is alleged to have been occasioned by deception, a fact, no doubt, related to judicial expansion of the fraud category within sexual offences law. However, I am not interested in deception at large. Rather, I am interested only in cases where claims of deception hinge on the identity of the defendant.

Moreover, an analysis of these cases enables not only consideration of a set of liberal-legal concerns: the setting of appropriate limits to the operation of criminal law; the trumping of apparent consent to desire-led intimacy; pragmatic difficulties in establishing defendant knowledge in relation to facts designated legally material; clashes of rights between the parties to intimacy; and the threshold of harm necessary to trigger prosecution. It also permits examination of the ways in which identities are constituted and refused through legal struggle. For the purposes of the book, I will focus on gender identity. This is because prosecution claims of deception as to identity have, at least in the UK, been confined to this type.¹ It is true that there have been successful prosecutions for fraud on the basis of deception as to ethnicity/nationality in Israel.² However, such prosecutions, ones unlikely to be prosecuted in the UK, find their ‘intelligibility’ in the very specific context of the Israeli State and Jewish/Arab relations. As Aeyal Gross has put it, commenting on the case of Kashur, it is ‘relatively unique, in both context and form, to Israel, reflecting its ethno-nationalistic character’ (Gross, 2015, p. 32; see also Gross, 2000).³ In any event, this book’s focus will be on gender identity fraud and its legal construction primarily within English common law. The prosecution of young gender non-conforming people will nevertheless provide a case study offering valuable insights for wider public and academic debate both within the UK and internationally concerning the expansion of the fraud category generally within sexual offences law and specifically in relation to the criminalisation of identity-based fraud.

It is necessary from the outset to clarify that in referring to gender identity fraud, I am placing emphasis on, and intend to refute, at least in some cases, the legal claim that defendants’ gender identities are false. This is the central claim made by the prosecution in the cases to be considered. It might be said that gender fraud relates to things other than identity. Thus, it might be said that all sorts of facts pertaining to gender, that is, to gendered lives or experiences, could provide the basis for a deception claim. For example, a woman who lied about having had an abortion prior to intimacy might be argued to have committed gender fraud if she knew her partner would not have consented if aware of this fact. Of course, a prosecution would not be brought in such a case. This is because the fact of abortion, while a gendered fact, would be considered immaterial to the question of consent as a matter of law. This issue of fact materiality, and its legal construction, is one we will consider throughout the book. The point here is to recognise that while gender fraud could in theory encompass all kinds of gendered facts, it does not do so legally speaking. Rather, prosecutions brought have been confined to claims about gender identity and, so far, have been limited to defendants designated female at birth. Accordingly, the question that has preoccupied the courts has been as to whether the defendant is or is not a man.

In the context of transgender,⁴ genderqueer⁵ and/or other gender non-conforming people however, this issue of the scope of gender for the purposes of fraud prosecutions assumes particular and additional significance. This is because, in these contexts, legal concern extends beyond the fact of present gender identity to include other facts about the present and/or past (for example, facts relating to legal gender, anatomical status and/or gender socialisation). In this book, I will use the phrase gender identity when describing the object of fraud prosecutions. This is for two reasons. First, gender identity is, at least ostensibly, the state’s object. Second, if we conclude there has been deception regarding gender identity, then any issue concerning gender history or other present gendered facts, as a separate matter, effectively disappears. Conversely, if we conclude that there has been no deception regarding gender identity, then we ought to insist on the immateriality of other facts pertaining to gender, a normative claim I will develop in subsequent chapters. Nevertheless, because gender history provides a subtext to understanding fraud prosecutions, and because at least some criminal legal commentators take the view that deception regarding the past ought to vitiate consent (Herring, 2005, pp. 522–523) or can be viewed as doing so (Williams, 2008, p. 149), this phrase will be used where appropriate.

In considering legal affirmation or, more typically, negation of defendant gender identity, the book aims to tease out the ways in which fixed identities are legally required. That is, a defendant either is the man or woman s/he claims to be (and therefore is not legally deceptive) or s/he is not (and therefore is legally deceptive). In other words, the possibility of being both or of moving between categories is both precluded and taken as proof of deception. And yet, such fluidity is not only an empirical reality, but one that appears to have assumed increased relevance in contemporary society. Thus, the number of people living transgender or otherwise gender non-conforming lives has increased exponentially in recent decades.⁶ To the extent that the notion of coherent fixed gender identity, around which legal decisions coalesce, belies fluidity or ambiguity, the book will take to task claims of deception and therefore the appropriateness of prosecution, while at the same time drawing attention to the way in which prosecutions based on the idea of fabricated gender identity serve to bolster more hegemonic, though no less socially constructed, gender identity categories, and thereby contribute, among other things, to complainant trauma.

1.1 Queering law

In approaching legal and ethical issues surrounding gender identity fraud, this book will adopt a queer approach. That is, it will draw explicitly on queer theory (Butler, 1990; Sedgwick, 1990; Butler, 1993; Halberstam, 1998; Warner, 1991; Stychin, 1995b; Warner, 2000) and, to the extent there is common cause, trans (Bornstein, 1994; Feinberg, 1996; Cromwell, 1999; Namaste, 2000; Stryker, 2004; Stone, 2006; Serano, 2007)⁷ and pro-sex feminist theories (Rubin, 1984; Rubin, 2006; Vance, 1984; Nestle, 1992; Segal, 1994). In adopting this approach, the book takes as axiomatic the idea that sex, gender and sexuality are socially constructed, that is, they are the products of time (history) and place (culture). As Biddy Martin puts it, queer theory challenges ‘hegemonic assumptions about the continuities between anatomical sex, social gender, gender identity, sexual identity, sexual object choice, and sexual practice’ (Martin, 1994, p. 105). Law will be seen to reify or naturalise these categories in ways that reproduce what Judith Butler has described as ‘the heterosexual matrix’ (Butler, 1990, p. 35).

Thus, in the present context, the prosecution claim, one which this book will challenge, is set up in the following terms: a heterosexual cisgender woman has sex with a transgender man or gender non-conforming person designated female at birth; she does so on the basis of a ‘false’ belief that the latter is a heterosexual cisgender man; the transgender man or gender non-conforming person is aware of her ‘mistaken’ belief; and the combination of these facts serves to vitiate consent. Putting to one side the credibility of complainant ignorance, an issue that the book will take up, especially in Chapter 5, and in relation to which it will adopt a position of scepticism, this type of prosecution assumes the naturalness and stability of the categories of sex, gender and heterosexuality. Thus, and in the context of gender identity fraud prosecutions, the deployment of the trope of innocence is not confined in its effects to complainant naivety, and therefore to defendant fate, but rather extends to and reinforces the idea and fallacy of original and pure categories (Shiner, 1982, p. 387). The effect is to bolster the sexual and gender identities of complainants, while at the same time negating the sexual and gender identities of defendants. Thus, what is at stake are the proper boundaries of ‘authentic’ and legitimate sexuality and masculinity, as well as who has the interpretive power to decide such questions.

However, this book is not only, or even primarily, interested in questions of legal representation, important though they are. While it will highlight the discursive fallout for those at the sexual and gender margins produced by gender identity fraud prosecutions, the book is explicitly concerned to express normative commitments and to make normative arguments. Thus, the book proceeds on the basis that queer legal theoretical scholarship must transcend a preoccupation with the ‘conceptual’, and worse still a fixation with transgression for its own sake (Seidman, 1997; Kirby, 2015), at the expense of the ‘normative’ in mapping out jurisprudential space (Zanghellini, 2009). As Aleardo Zanghellini explains, while counter-normativity, ‘the repudiation of dominant norms’, is important, it should not succumb to antinormativity, which would commit us to a ‘renunciation of prescriptive projects’ (Zanghellini, 2009, p. 1. See also Jagose, 2015). Rather, ‘the primary motor of queer incursions into conceptual jurisprudential ground … must be political in nature – in the sense of its connection with a concern for justice for sex and gender outsiders’ (Zanghellini, 2009, p. 4).

While some might view such an approach to be anything but queer, it remains a truism to say that it is ‘the normative commitments from which they proceed’ that make queer critiques ‘ultimately worthwhile’ (Zanghellini, 2009, p. 6). Thus, while it is important to chart disciplinary power and its normalising effects, it is equally, if not more, important to recognise how they ‘constrain personal autonomy’ (Zanghellini, 2009, p. 6) and counter diversity. Moreover, and importantly, despite queer’s anti-humanist rhetoric, one tends to find, as Zanghellini contends, ‘a general commitment to liberal humanist values … such as ideas of respect, value pluralism and personal autonomy’ (Zanghellini, 2009, p. 8. See also Seidman, 1997, p. 157; Turner, 2000, p. 17; Ball, 2002, pp. 457–458). Thus, while queer, influenced by poststructural thought as it is, conceives of the concepts of power, epistemology and ontology and their interrelationship differently from liberalism, broader values of tolerance, pluralism and respect for agency (a queer and feminist version of liberal autonomy) belie some common and worthwhile ground.

In this book, I intend to take up Zanghellini’s challenge both because I am persuaded as to the necessity for queer legal theory to engage with normative questions, and because such questions are urgent ones in the context of gender identity fraud, given the recent spate of successful sexual offence prosecutions brought in the UK, and the fact that nearly all convicted gender non-conforming defendants have received (often lengthy) prison sentences and have been placed on Sex Offenders Registers (usually for life). In attempting to challenge such prosecutions from a queer perspective, the book will engage with liberal arguments around autonomy, consent, privacy, harm, equality and diversity. It will do so, while recognising tensions between liberalism and queer theory, but in the spirit that some normative idea (some alternative vision) of each of these terms is implicit within queer theory and is precisely what animates and drives it forward. The prescriptive project of this book is a limited affair, the prevention of gender identity fraud prosecutions. It is however, an important one and, as with other possible queer legal projects, failure to imagine and articulate alternative ways of describing the fraud scene, serves only to vacate the space for knowledge construction and action, a space which will otherwise, and inevitably, be filled by more dominant and antithetical legal discourses and practices.

1.2 Themes

In considering issues of desire, intimacy and fraud, the book will explore a series of interrelated themes. These include ideology, agency, ignorance/knowledge, act/identity, resistance, law’s bodily aesthetics, act/omission, and three key legal and philosophical concepts central to criminal law, ones especially relevant to sexual offences: consent, harm and deception.

(i) Ideology

In relation to ideology, the book will foreground particular kinds of judicial ‘common sense’. In relation to gender identity fraud claims, the forms of ubiquitous wisdom that require naming and challenging are heteronormativity (Warner, 1991) and cisnormativity (Serano, 2007). Accordingly, the book will draw on queer (Butler, 1990; Sedgwick, 1990; Butler, 1993; Halberstam, 1998; Warner, 1991; Stychin, 1995b; Warner, 2000)⁸ and trans theories (Bornstein, 1994; Feinberg, 1996; Cromwell, 1999; Namaste, 2000; Stryker, 2004; Serano, 2007; Serano, 2013). Heteronormativity assumes heterosexuality to be the normal or preferred sexuality through which society ought to be organised, and in the absence of clarity, the default sexuality. Cisnormativity operates in a similar fashion, assuming people to experience harmony between their gender identity and their anatomy, and privileging those who do. The related term, cissexism, refers to the belief that transgender people’s gender identities ‘are inferior to, or less authentic than, those of cissexuals’ (Serano, 2007, p. 12).

The term cissexual refers to people ‘who have only ever experienced their subconscious and physical sexes as being aligned’ (Serano, 2007, p. 33). It is used in preference to terms like natural, real, biological, genetic or other terms which presuppose and reinforce the primacy of cissexual people. The term cisgender refers to those cissexual people who are comfortable with gender expec...