“Sex by deception” and the shades of yes
A series of recent rulings (and the media circuses that have accompanied them) in the UK has raised questions about what is being termed “sex by deception” — that is, instances where people who are possibly trans are said to lie about their gender, in order to seduce another person. In these cases, it’s often unclear whether the person in question is trans or if the gender representation is for other reasons, due to media ignoring questions of self-identification, using mixed pronouns and sensationally portraying people with phrases like “sex fraud woman who posed as a boy to seduce a girl.” Even after a legal ruling is given, it’s still unclear in many of these instances who the defendant is, and how they identify — which at post-trial stage is an indictment of both media reporting and judicial clarity.
There have already been some previous thoughts expressed on the most recent ruling by Zoe O’Connell (who sifted through the legal text), Jane Fae, and others, and because of the near impossibility to determine what actually happened from a distance, I won’t even try to touch on any of the specifics of any of the specific cases. I’ll be sticking to generalities only.
There are two key questions at the heart of the discussion. The first is whether or not one’s gender identity is deception. Obviously, I don’t believe that’s the case, and at this point in time, most people who have investigated trans phenomena have come to realize that it is deep and integral in at least some way, and far more substantive than what was previously commonly believed by the public at large. And because this discussion has a question of validation at its root, it can be a very hot-button issue for trans people.
Gender vs. Sex
However, there is also a difference between one’s gender, which is an outward expression and socially constructed to a significant degree, and one’s physical sex. In illustration, transsexed people typically transition between sexes to be true to themselves, while various other and often overlapping trans people live between genders or defy them in some way (that is to say, there are a couple sometimes differing but not mutually exclusive narratives that make up “trans*”).
When discussing whether deception takes place, there is sometimes a language breakdown that happens because one person is thinking about what a person’s gender identity is, while another is thinking about their genitalia. For example, as someone who transitioned, I view the years before transition, when I was trying to pass as a man to meet others’ expectations, and trying to conform to my pre-transition body as the period of my life closest to being a “deception,” given that I had been consciously been putting on an act (24/7) during that period of my life.
But the other key question at the heart of things is the nature of consent. And that is why my own thoughts on this are a bit more complex and nuanced.
Before I came out and started transition, there were very few safe spaces for trans people, where I could interact with people without fear and hiding. One was the BDSM community, which has a strict and very discerning stance on what constitutes consent.
Note: it’s always nebulous to call something “the _____ perspective,” and individual opinions and nuances may vary, but this is a general consensus as I learned it: consent by kink standards should come from people who are of the age of majority (legal reasons), without coercion, influence, imbalance or obligation (mixed legal and ethical reasons), and with clear prior communication by both parties about what is being consented to (ethical reasons). [It may seem odd to some readers, but it actually is possible to resolve social justice perspectives with the power exchange that happens in BDSM — it is a major detour from this subject, however, so I’ll simply be focusing on consent here, and hope that this discussion simply helps to illustrate this point]
It’s a level of consent that many heteronormative couples don’t strive for or even think about. That standard can call into question consent that is given because one feels that it’s their marital duty. It certainly calls into question sex while intoxicated, or where there is an obviously disparate question of power / authority to manipulate, or many other situations in which someone makes an exception to engage in a sex act that they otherwise wouldn’t normally consent to. The starstruck “he’s not my type, but oh gosh, he’s the President” rationale could raise questions about ethical consent, in some kink circles.
So having sex and failing to disclose one’s sex certainly enters a grey area when this standard of consent is applied. Note that I didn’t say that consent is automatically invalidated.
Legal vs. Ethical
When I started talking about kink perspectives on consent, I brought up a blend of legal and ethical considerations. It’s important to recognize that whether something is ethical can be an entirely different question from whether it is legal.
It is usually legal, for example, to deceive a partner about one’s marital status, age, past history (including legal convictions), sexual orientation, medical and mental health (including lying about having had a vasectomy, a deception that can result in pregnancy), religious affiliation, wealth / connections, and – heh – prowess. Some of them are much more serious than others. Many of them are not typically interpreted in general society to automatically invalidate consent on a legal level, although there may be contexts where legalities are questionable. And although some cause harm, privacy is often seen as more important in a legal context, depending on how much harm is involved. None of those are very ethical on the surface, but they rarely become legal questions, unless there are extenuating circumstances — such as if the person consenting is under the age of majority, if the person becomes pregnant, and / or if the person initiates lies about being in their peer group. That’s because law prefers to deal with absolutes, and many of these questions are context-dependent.
Failure to disclose HIV status is a bit more difficult, although it is still not an apt comparison to non-disclosure of trans status: there is no possibility of developing lifelong consequences just because a partner is trans. Either way, people with HIV can be (and most often are) responsible, and take ethical steps to avoid passing the virus on. The U.K. — where the specific legal cases that started this debate have taken place — recognizes this in law, and doesn’t automatically determine HIV status to invalidate consent.
Gender panic, on the other hand, is seen as the sole exception.
[Edit: okay, possibly next-to-sole exception. I nearly forgot that Britain has another unusual precedent in R. v Brown, in which the House of Lords ruled that people cannot legally consent to violence, except through legal activities (i.e. surgery). There have since been rulings that lesser forms of pain — such as branding — can be consented to, but it’s unclear if these rulings overturn R. v Brown. Either way, the possible existence of a second exception where consent is automatically invalidated changes this context only slightly.]
Shades of Yes
In issues of both legal and ethical consent, there are varying degrees that have to be recognized. Legal discussions most often parse consent by verbalization:
- deemed, or
- implied consent.
And if one of those are met, then the question becomes whether that consent was revoked, or if there was a context-sensitive circumstance which would reasonably invalidate that consent.
Ethical discussions parse consent by the motivation of the person who consents:
- fully mutual (where both partners are fully empowered and participating for mutual pleasure – the obvious ideal),
- generous (in which one sees neither pleasure nor betterment in the experience, but is not in a position of disempowerment, and participates solely out of a desire to fulfill another),
- transactive (a situation in which someone might consent to sex in order to advance their finances or position, but is not significantly from a perspective of disempowerment — can include some sex work, depending if it’s engaged in more from a perspective of opportunity than of necessity),
- survival-motivated (a situation that is transactive, but comes from deeper marginalization, and will likely only maintain that disempowered status quo — sex work can also be included here, such as the most commonly thought-of survival sex work),
- impaired (drugs, alcohol, and it’s also arguably possible to include things like crappy self-image, when it’s inferred by the consenter rather than exploited by their partner),
- inadequately communicated (as in deception by omission or unintended deception),
- obligated (a person is a bit more under another’s power; fulfilling one’s “wifely duty” might fall in this category if there are profound negative elements being endured in the process),
- coerced / by willful deception, or
Each of us will draw the dividing line between ethical and unethical consent differently, and sometimes with weird jumps (i.e. heteronormative couples might see obligation as a perfectly fine motivation, but transactive sex not). I’ve ranked them based on how much autonomy the person consenting retains, and the degree of equal power between partners during the negotiation (which can be different from the power exchange afterward — this is drawing from the BDSM principle, after all).
As much as consent can be divided up and rated, of course, “no” is still “no.” What this is designed to do is give some clearer ideas about when “yes” actually should be considered “no,” or at least be reassessed.
Legally speaking, there is an instance in which I could see consent being legally invalidated, or at least where the question would become very murky: if the trans individual bared their genitals and expected their partner to interact with them, without it having been previously discussed. In the incidents in the U.K. that sparked this discussion — including the most recent precedent-setting one — that did not happen. The discovery of the person’s trans status did not happen until some time after the sex.
Given this, we’re allowed to be all over the map on where we think this question falls ethically, but we have to recognize that on a legal level, this is pure trans exceptionalism. With the number of things that aren’t automatically considered deception and don’t instantly invalidate consent, it is pure gender exceptionalism — fuelled by a combination of homophobia, transphobia and possibly also misogyny — behind the decisions to convict. British courts have been setting precedents that are very different than the conclusions I’d come to, certainly.
The U.K. precedent also sets up a legal question as to whether a trans person is always automatically defined by their genitalia (or even by their genital history), rather than their gender identity. In a way, the precedent implies that in the eyes of the court, trans people are committing fraud, just by existing.
There’s also a greater concern. There has often been an apparent vindictiveness evident in the media coverage surrounding some of the “sex by deception” cases — often driven by family members, but also incentivized by the profitability of sensationalism. Given that transphobic animus can often stop at nothing (including lying) to hurt and demonize, does this precedent then put the burden of proof on the trans person to demonstrate that they had disclosed their trans status? And if so, does this create an opportunity for transphobes to exploit the criminal justice system to punish people they find morally objectionable?
How does one prove that they disclosed to a partner that they’re trans, in a one-said / other-said scenario? Given that judgments in these cases often go to whoever is deemed more believable and about whom fewer aspersions have been cast, this opens up a whole lot of legal vulnerability.
At this point, it’s worth saying something about post-act regret. The trans panic defense and the deception claim may even be related at times, and parcel to something I have seen happen: the after-the-fact change of mind, regret, guilt and homophobia that can set in after a consensual sexual encounter, which sometimes then get turned against their playmate in the form of violence and retribution. The person suddenly blames a trans individual for “trying to make them gay,” and is overwhelmed with guilt for having enjoyed a sexual encounter. I’ve experienced being on the receiving side of that, though luckily not as seriously as others have. If the legal system provides a new form of retribution for post-act regret, then trans people have become subject to a new kind of violence.
In any case, the legal question has become seriously complicated in the U.K.
Regarding whether there is an ethical imperative to disclose, with the distinctions above to ground us, we have to ask a few questions.
What are the hardships of disclosure? At what moment is a trans person supposed to disclose?
The reality is that disclosure is often far more negatively consequential to a trans person than a cis partner: trans people are often subject to hate and even brutality for being open about being trans or having a trans history. There is never a good moment to disclose. There may not even be a consistently ideal time to, since context changes everything. Individual value judgments also factor into the question.
What if it is the cis person who initiates discussion, with hopes of leading toward sex? What if the discussion happens in a public area, with a reasonable expectation of harm if one discloses? What if the cis person is pushy or even coercive?
How much right to privacy should one have from an intimate partner, and are there circumstances when privacy might take precedence?
Who has to disclose? If the sexually-active person in question is post-operative, is there still an obligation to disclose a trans history?
What if the person is pre-transition and they’re still struggling with it and in self-denial? (One of the jarring questions couples face when one partner comes out as trans is why it wasn’t disclosed sooner: often, this dredges up an extended timeline of when the person knew they were different, when they decided to try to live according to the dictates of their body and birth assignment, when they came to self-acceptance, when they realized they would someday need to transition, and when they finally came out.)
What if the sex in question doesn’t involve a partner’s penis or vagina? If the person in question is providing oral sex and their pants stay on, does it really matter what’s in their trousers? Is there a value judgment to be made between a one-night stand and a reasonable expectation of a longer-term sexual relationship?
Does having genitalia contrary to what is believed (or assumed) substantively change the act of sex? Does it necessarily change a person’s sexual orientation? How does one define or quantify the harm?
Open-Ended As It Should Be?
There are dozens of questions that affect the question of ethical consent. I’m not going to have any one single answer for that would apply in absolutely every situation… nor do I think that it’s possible to have any absolute one-size-fits-all rule.
But I do want people to understand the complexities, and how that question differs from the one of legal consent.