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.

Gayle Newland: 8 year sentence widely criticised
Gayle Newland: 8 year sentence widely criticised

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.

1The Court did not rely on the conclusive statutory presumption on consent contained in S.76 of the Sexual Offences Act 2003. A lie about gender, it seems, is not a deception as to the “nature or purpose of the act.”

2Mistaken Sex [2005] Crim. L.R. 210

5Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin),

6. R v Jheeta [2007] 2 Cr App R 34,

7Sabbar Kashour posed as a single Jewish man although he was in fact a married Palestinian. In 2010 he pleaded guilty in a plea bargain, after the prosecution dropped a more serious charge of rape by coercion rather than deception.

8Setting the Boundaries. Reforming the Law on Sexual Offences. Volume 2 5.30. It should be noted that the Law Commission defined transsexual very narrowly as someone “who has undergone sex reassignment surgery.” At the time of its report in 2000 it was not possible legally to change gender. Nowadays sex reassignment surgery is neither necessary nor sufficient to acquire a gender recognition certificate.

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

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

16 thoughts on “The law on transsexual sex has lost touch with humanity and common sense”

  1. So long as society tolerates this transgender nonsense the courts and prisons will be littered with crackpots making a nuisance of themselves. (I don’t use the word transsexual as people cannot change sex. These operations only make them into eunuchs). The cost to the public will also go on rising until we put our foot down.
    You say “The judge’s relative leniency spared Mr Lee the possible indignity and danger of having to serve his sentence in a male prison”. Indignity? A woman such as Kyran Lee who pretends to be a man deserves no sympathy at all for being put into a male prison, and must accept the consequences. It’s her fault for being a liar. SHE is not a man but if she insists on being classifed as one she cannot complain about the consequences.
    Stop calling people by an assumed gender. It’s fake. You and all the media seem to have swallowed this transgender claptrap hook, line and singer without questioning it. Why? It is very annoying that TV and radio have capitulated to this nonsense, while there are significant forces of resistance .
    Look on Twitter and read the ongoing culture war between those who accept gender-change and those who don’t. GenderIdentityWatch is a good website, and so is AllisonsLaw. Aggressive trannies label feminists who won’t accept them as women “Terfs” while the latter respond by labelling the aggressive trannies “transchauvinists”.

    1. You make more excellent points again. Perhaps you will visit my blog and make more of your excellent points there. The legal profession is the profession most intellectually crippled by their submission to PC, don’t you think?

      If extramarital sex were treated as sexual offences, we wouldn’t have any of this nonsense, though this smacks of sharia law. But needs must, and we cannot continue to have the court system clogged up with complaints being made by mentally ill men who want to be women, nor must we continue rewarding lying promiscuous women who make false rape accusations because they have been financially incentivised at £15,000 a pop.

  2. This is not only bizarre but confusing. We are told: “Newland had an online male alter ego called Kye”,
    and then that: “Newland had perpetrated a complex deception in preparation for Kye’s eventual meeting
    with Newland”!

  3. Homosexuals and trannies are shrilly demanding more and more of what they call “equality” . Trannies say they are men if they assume that gender legally. If so, to be consistent, a woman who straps on a dildo and pushes it into the vagina of another woman must be given the full legal penalty for rape that would be imposed on any biological man, including prison and that prison must be the prison for the sex they chose.
    What part of “equality” don’t you understand, Matthew? Kyran Lee called herself a man, she insists that others must treat her as a man even when this embarrasses employers, causes children to feel disturbed and involves huge, unfair expenses to the National Health Service. Then when she commits a crime you think she should get special treatment just because she is a trannie.
    Trannies are running up bulls of millions here in the UK and in the USA because of all their claptrap. Yet you want society to pay what they demand and then let them have it both ways/

  4. Thanks to the LGBT movement taking over education, we now have an epidemic of young schoolchildren wanting to change sex or, according to this article “gender”. If they merely wished to change “gender” they would not need hormone treatment, or operations of any kind. But the whole transgender nonsense thrives on confusion and dishonesty.

    By the way, this has nothing to to with extramarital sex and the strange comments left by Ms Claire Khaw (a former BNP parliamentary candidate I believe) seem to be irrelevant and on the wrong thread.

  5. This is the sort of blatant cheating and scam that is on the rise with the transgender agenda:-
    A student who calls herself male now getting special treatment because she got a doctor to sign a certificate saying she suffered from period pain.
    i) If she is on hormones, she will not have periods.
    ii) The doctor was not there at the time, so cannot reliably say whether menstruation was happening, any better than a plumber or coal miner could.
    iii) Millions of girls and women sit exams during their period and never ever get special treatment. No concessions are made. Why should this trannie be given privilege? When I was at university we sat ten three-hour exams in two weeks and nobody got any concessions at all for any reason.
    But these trannies will get special legal advice and status and will threaten a lawsuit for discrimination if they don’t…all funded by the university’s “equality” police.
    Conclusion: do not regard a trannie with a degree as being equal to other people. We got ours on a level playing field, not by cheating.

  6. Going back to the case of Nathan Upton alias Lucy Meadows, it is quite unfair to attribute his suicide to the reporting of his case in the press.

  7. How is this for humanity and commonsense?
    New York City to Assess Fine of up to $250,000 For ‘Misgendering’ A Transsexual. According to a newly updated anti-discrimination law in New York City, individuals who intentionally use the wrong pronoun for a transgender could be assessed a hefty fine. Incidents that are deemed “willful and malicious” will see property owners face up to $250,000 in fines, while standard violations of the law will result in a $125,000 fine.
    No surprise if faced with such horrendous oppressive laws some people resort to just murdering the trannies.

  8. Very interesting and helpful article, thanks.

    The question is whose rights take priority. The right of the person being deceived to not be deceived. Or the right of the deceiver to deceive – which you couch as ‘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.’ However why think it ‘impossible to make’. It is something true , indeed salient, about themselves and their history. Why should it be impossible to make? Of course, it might be impossible for the transsexual to reveal the truth about him/her self and then find a straight partner to have sex with. But there is no right to sex with straight people. And no right to facilitate sex with straight people by deceiving them about your true sexual nature.

    Most people would think they have a right not to be decieved about the fundamental nature of who they have sex with. Straight ‘real’ men generally want sex with ‘real’ women’, likewise ‘real women’ want sex with ‘real men’. Why should they be prevented from exercising this choice?

    This becomes even more serious when we think about people who seek a partner to have children with. We will find situations where individuals have married and spent years trying for children and never know why they do not come – ruining their life. But there will be literally no way to find out the truth without the permission of the transsexual. That can hardly be right.
    The solution would simply be to refer to transmen as transmen – not as men; and refer to transwomen as transwomen – not women. That would be simple, clear, honest, open. We can then get on with building a society where transmen and transwomen are treated with respect, compassion, have equal opportunities etc.

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