The law on transsexual sex has lost touch with humanity and common sense

There has been widespread concern expressed at the 8 year prison sentence passed on Gayle Newland, the 25 year old Chester University student who was recently convicted of assaulting her sexual partner by penetration.

Just weeks later, female to male (but pre-op) transsexual, Kyran Lee, appeared before the Lincoln Crown Court and received a suspended sentence for assault by penetration. The judge’s relative leniency spared the Ministry of Justice the dilemma of deciding if he should be sent to a male or female prison.

There were many differences between the two cases, not least the fact that Newland had been convicted after a trial, whilst Lee pleaded guilty. Lee also faced only a single count.

Nevertheless, the different treatment afforded to the two defendants was striking, and it perhaps serves to emphasise the confusion that now surrounds the law relating to transsexual people and the criminal law.

From shortly after Newland was dragged to the cells, screaming “I’m scared!” press comment has been almost universally critical of HHJ Dutton’s sentence (even though he was faithfully following the Sentencing Guidelines). An entirely unscientific online poll by the Daily Telegraph found that 72% of respondents thought the sentence was too severe, and a similar poll for the Chester Chronicle produced nearly identical results.

The facts of her case will have struck many as bizarre: Miss Newland and the complainant (identified only as Ms X in the reports) were close friends at Chester University. Unknown to X, Newland had an online male alter ego called “Kye”. “Kye” contacted X, who believed him to be a real person. Eventually, they arranged to meet. When they did so, Newland played the part of Kye, using bandages to bind up her breasts and instructing X to wear a blindfold at all times. Without realising that he was in fact her close friend, X engaged in sexual activity on up to ten occasions with “Kye”. She believed she was having sex with a man, not least because Newland penetrated her with a strap-on dildo. Eventually she became suspicious, removed her blindfold and realised that she had been deceived. She then complained to the police.

In his sentencing remarks, Judge Dutton spelt out in some detail how Newland had perpetrated a complex deception in preparation for Kye’s eventual meeting with Newland.

“To successfully pass off a deception of this complexity was a major undertaking involving dedicated mobile phone lines as well as regular texts from you purporting to be Kye’s relatives.

This went on for many months. X believed she was in an on line relationship with a boy that she liked very much. You made regular excuses as to why you couldn’t meet in the flesh. This involved a complex story about Kye having suffered a disfiguring injury and him being embarrassed at being seen. All the time you were successfully convincing X that Kye was a man. You began controlling X’s movements persuading her to give up a job telling her that she loved the job more than Kye. You then stepped in as her best friend Gayle to console her in her disappointment at not being able to meet Kye. As Kye you were telling X that the injuries could prove fatal. As Gayle you offered her consolation but then as Kye you sent her a ring to wear thus taking this cruel and wicked deception to a higher level still.”

None of these preparatory deceptions – “cruel and wicked” though they were said to be – were criminal in themselves, but they eventually led to X consenting to sexual activity with Newland in the belief that she was having sex with a man, rather than a woman. Although not all sexual consent obtained by deception is invalid, since the case of McNally [2013] EWCA Crim 1051 it has been clear that deceiving a sexual partner about your sex is capable of doing so. It was this principle that led to Miss Newland’s conviction.

The Court of Appeal based its decision squarely on the definition of consent contained in S.74 of the Sexual Offences Act 2003:¹

“For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

A person who conceals his sexual identity, in the view of the Court of Appeal, denies his partner the freedom to choose to consent. Any consent to sexual activity that is given while the deception is operative is therefore invalid.

The law on consent obtained by deception is now in a state of near incoherence.

Judges have at least resisted the seductive blandishments of Jonathan Herring², who has argued with cold clarity that all deceptions or even deliberate silences that lead to sex should negate consent.

“For A to engage in sexual activities with B knowing that B would not be consenting if A revealed facts about himself amounts to a fundamental lack of respect for B’s sexual autonomy.”

But the price of rejecting Professor Herring’s absolutism has been to produce a smorgasbord of anomalies, provisos and exceptions. Failure to disclose that you are infected with a sexually transmitted disease, for example, has been held not to vitiate consent,³ although it is possible that an active deception could do so. When consent to intercourse was granted on condition that ejaculation would take place outside the body, it was held that concealing an intention to ejaculate inside can invalidate consent,⁴ as can not wearing a condom when consent was granted on condition that one would be used.⁵ A deception as to wealth has been described as “obviously” not sufficient to vitiate consent, and nor does an insincere promise to pay £25 to a prostitute invalidate her consent to sexual activity. On the other hand pretending to be a police officer and thereby putting pressure on a woman to have intercourse is capable of doing so.⁶

It seems unlikely that a deception as to ethnicity would be capable of vitiating consent, although in a notorious Israeli case just such a deception by a Palestinian man pretending to be Jewish led to a rape conviction and a prison sentence.⁷

Where does this leave transsexual and transgender people? The answer is that (certainly up to the point that they legally change sex) that it leaves them in a very difficult position. If they want to avoid conviction for sexual offences they would be well-advised to be entirely open about their gender identities. Yet for very understandable reasons, concealing those identities is exactly what some of them might wish to do.

Of course, in a perfect world no-one would feel any need to conceal their gender or sexual identity. Unfortunately the world is far from perfect. Trans people are already quite likely to live in a state of confusion and distress as a direct result of their gender dysphoria. According to HHJ Dutton, Miss Newland had a history of “blurred gender lines” (whatever that may mean) “as well as social anxiety disorder, personality disorder, depression and OCD.”

If she is properly to be described as transgender, she is certainly not alone in suffering mental health difficulties. A survey conducted by the mental health charity PACE, 48% of transgender people under the age of 26 said that they had attempted suicide. And it gets little easier once they reach mature adulthood, as demonstrated by the the suicide of Lucy Meadows, a transgender teacher, who killed herself after being (in the words of the coroner) “ridiculed” in the national press shortly after she had started to live as a woman. And it is not just ridicule. Hate crimes against trans people are a serious (and according to the CPS often an under-reported) problem. It is all very well to say that they should be open and unembarrassed, but many trans people would much prefer to keep their gender identity as a private matter. Given the ridicule and violence to which they can be subject if they reveal the truth, who can blame them.

Simple binary distinctions about gender break down where transgender people are concerned. A trans person may be anatomically male, female or ambiguous. He or she may appear different to his or her perceived gender and may be straight or gay. Thus (for example) a person might appear and act as a male but be anatomically female. He (or of course, she) might act in the “acquired” sex all, or just some of the time. It is possible that he is awaiting surgery, or he may have decided to live in the acquired sex but not to have surgery; the majority of transgender people do not in fact choose to undergo surgery at all, and because female to male surgery is usually less successful than male to female, female to male transsexuals are generally less likely to risk it.

Newland’s case involved the use of a prosthetic penis, as did McNally, but the law requires that a person should reveal their anatomic gender before engaging in any sexual activity. As Leveson LJ put it in McNally (at para 26):

“M [the complainant] 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.”

A trans man who kisses somebody he has just met on the dance floor is thus – on Leveson LJ’s analysis – committing a sexual offence if he does not reveal the fact that he is (or at least was once) anatomically female before their lips touch. This seems to be both wholly unrealistic and deeply discriminatory to transsexual people. It is true that His Lordship purported to identify a way through these difficulties: judges, he said, should adopt a “broad common-sense” approach. It would be hard to think of a less helpful injunction.

Nowhere in McNally was any consideration given to the delicate human rights issues that the prosecution raised. When the Law Commission considered the question in 2000 it regarded is as “likely” that prosecutions of transsexuals for sexual acts procured by deception as to sex would be in breach of the defendant’s Article 8 right to privacy.⁸

Somewhat different issues arise in the case of a trans person who has “officially” changed sex and acquired a Gender Recognition Certificate under the Gender Recognition Act 2004. S.9 of provides:

1. Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

Although there does not seem to be any authority on the point, if a person is “for all purposes” his acquired gender, then behaving as a man or claiming to be a man (or, mutatis mutandis, a woman) would not be a deception at all, and any consent given would presumably be valid even if he had told “cruel and wicked lies” about his past.

Yet his legal gender and the existence of a gender recognition certificate might be a matter of indifference to any prospective partner. The ratio of McNally is that a person has a right to know whether their sexual partner is a boy or a girl. Why should that person not have the same right to know if their partner has changed sex, something that many people would be keen to know before embarking on a sexual relationship? The answer is that in the case of a legal sex change the law would probably deem the right to privacy of the transsexual as being more worthy of protection than the consenting partner’s right to make an informed choice.

Yet if the right to privacy of someone who has legally changed his gender is recognised, this leaves transsexuals who have not done so in a still more anomalous position. Precisely the same act and the same factual deceptions would either not be criminal at all, or would lead to a lengthy prison sentence, depending on whether the accused had obtained a Gender Recognition Certificate.

The diseased can happily conceal their disease; the poverty stricken can claim to be wealthy; the law supports the right of confidence tricksters to bamboozle their victims into bed, and steps in only if they try to steal their property. Yet the transsexual who has not legally changed sex is not just required to reveal the most intimate and private aspects of his life before he has intercourse: he must do so even if he wishes to kiss someone.

The CPS has guidelines on the prosecution of transgender suspects for sexual offences. Prosecutors are told to pay particular attention to public interest factors in deciding whether to prosecute, such as:

• Whether the offending occurred as a result of the suspects uncertainty or ambivalence about his/her gender identity;

• The nature and level of the relevant sexual activity;

• The nature and duration of any relationship between the suspect and complainant;

• Where the suspect has made an admission, whether an out-of-court disposal might take the place of a prosecution and provide an appropriate response to the offender and/or the seriousness and consequences of the offending.

No doubt sensible CPS charging decisions do much to ameliorate the harshness of the law. But even if prosecutions are unusual it is deeply unsatisfactory that the law criminalises most transsexual sex unless it is preceded by the sort of personal disclosure that many would find it almost impossible to make.

No-one pretends that this is an easy area of the law. But the public reaction to Gayle Newland’s sentence suggests that, on this issue at least, the law is out of touch with public opinion and even, with the greatest of respect to Lord Justice Leveson, out of touch with common-sense.

[Most of this post was originally published in the Criminal Bar Quarterly December 2015]