“Sex by deception” and the shades of yes

Dented Blue Mercedes, Canada
7/25/2013
Posted by dentedbluemercedes

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
<http://www.complici ty.co.uk/ blog/2013/ 06/court- of-appeal- confirms- stealth-trans- people-having- sex-are-criminal s/>
(who sifted through the legal text), Jane Fae
<http://www.newstate sman.com/ voices/2013/ 06/trans- or-otherwise- its-time- overhaul- law-rape- deception>
, 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.

Consent

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
<http://en.wikipedia .org/wiki/ Operation_ Spanner> , 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:

• express,

• 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:

1. fully mutual (where both partners are fully empowered and
participating for mutual pleasure – the obvious ideal),

2. 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),

3. 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),

4. 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),

5. 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),

6. inadequately communicated (as in deception by omission or
unintended deception),

7. 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),

8. coerced / by willful deception, or

9. forced.

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.

Legal Exceptionalism

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.

Ethical Questions

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.

http://dentedblueme rcedes.wordpress .com/2013/ 07/25/sex- by-deception- and-the-shades- of-yes/

 

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