Is gender dysphoria simply recognised as fraud in the eyes of the law?

So now we know. Again. Fail to declare your “real” gender in matters sexual, and you’ll go down. Is this really protecting women? Or is it yet another instance of systemic legal hypocrisy when it comes to gender variance?

Yesterday, Chris Wilson received a sentence of three years probation, plus 240 hours community service for “obtaining sexual intimacy by fraud”.  The charge is that the 25-year-old began relationships with two teenage girls, both under the age of consent that later progressed to physical intimacy - without declaring to either that his birth gender was female. Tim Hopkins, director of the Equality Network told the BBC "Chris Wilson broke the law by having sex with the 15 year-old girl who had claimed to be 16. But he was not charged for that, instead the charge was 'obtaining sexual intimacy by fraud' because in the Procurator Fiscal's eyes he had 'lied' about his gender."

Wilson may have got off lightly compared to 18-year-old Justine McNally (17 at the time of the offence) who got three years for sexual assault after "pretending" to be a boy to seduce a 16-year-old girl; or 19-year-old Gemma Barker who was convicted of sexual assault and fraud, having posed as a boy on Facebook to trick female friends into sexual relationships (30 months). 

Still, the message is clear: we’ll have none of that gender-bending nonsense round here. Fail to disclose your birth gender to sexual partners - as happened in all three of these cases - and you may find the law deems consent invalidated and, one way or another, you have likely committed a criminal offence.

That’s trannies put in their place. Or rather, that’s trans men sorted. The penalty for trans women who fail to declare their birth gender is altogether more precarious. Some male partners care not a hoot. Others make more direct threats, as documented in comment pages ad nauseam: “if I found I’d slept with a guy who pretended to be a woman, I’d kick his head in”.

Thankfully, there is no record of the courts yet succumbing to any desire to allow a “trans panic” defence in cases of assault or murder: but if not disclosing trans history to sexual partners is an offence, the point when someone tries that, pleading self-defence in the process, can surely not be far removed.

Charming. But then the law encourages that view: merely discovering that your partner is trans in the first three years of marriage justifies instant annulment.

I am not going to jump on the bandwagon, already rolling, that demands gender self-identification trump all other considerations, including the views of offended parties. This is another of those increasingly difficult questions thrown up by more fluid gender roles, exemplified by the fact that in some parts of the lesbian community, the line between butch and trans male is growing ever fuzzier. I do not wish to see trans folk sent to jail for speaking the only truth that they know: yet I remain distinctly queasy at any attempt to require a young woman to accept another person's truth where, in the end, they found sexual encounter deeply traumatic. This is not an easy question to answer, since it encompasses clashing rights, dissonant truths. There are no easy solutions: and it absolutely needs discussion, exploration outside the adversarial arena of a court of law.

Still, three highly unsettling points remain. First, the defendants in these cases mostly appear to be loners, young, not in touch with the wider trans or LGBT community.  Had they been, the chances are they would not only have learned a little more etiquette around sexual encounters: they might also have put up a rather more spirited defence when the law came to call.

Which leads to a second key point: one cannot understand why they failed to put up an adequate defence.  The individuals have all been charged as women: well, they would, wouldn’t they, because the courts would look daft accusing a man of pretending to be, er, a man. In the case of Chris Wilson*, the Scottish Procurator Fiscal claimed that the accused “answered the indictment in the name of Christine Wilson”, and, as they were neither gender re-assigned or even contemplating same, what more was there to say?

Well, apart from the fact that Chris had identified as male from a very early age – but apparently wasn’t aware of the jargon involved.

Hence the lurid news headlines about evil women masquerading as men to have their wicked ways. Hence, intriguingly, the spinning of this trio of cases as stories of “bad lesbians”, rather than wayward trans types.

I have tried to speak to the solicitors involved in putting together a defence in two of these cases: sadly, neither were prepared to discuss the cases why all three defendants simply pleaded guilty – as women - including at least one individual, Chris, who clearly identified himself as male.

Last and most dubious of all is the hypocrisy.  Trans rights must not be won at the cost of blaming young women. Still, there is a seriously questionable double standard behind these prosecutions.  While the Scottish and English offences differ in technical content, the core point is the same: in both, the legal establishment claims, consent obtained by not speaking truth, the whole truth (and nothing but) is apparently invalid.

Have I died and woken up in an alternative universe? Since when has anyone told the whole truth prior to taking a partner to bed?  Men and women lie, constantly, about age, income, job and marital status. These, however, are not frauds that perturb the legal system. Nor, it would seem, is the case of an undercover policemen lying about his day job.

In the end, the law is meant to be blind.  Full disclosure must mean just that: full disclosure by all – not just the trans community. Any less is double standard, hypocrisy and yes: yet more evidence that when it comes to sex and sexuality, the law enforcement establishment is still languishing in the late 1950s.

*(For a full and excellent legal analysis of the Chris Wilson case, see the piece by Stephen Whittle, OBE, activist with Press for Change and Professor of Equalities Law at Manchester Metropolitan University)