In the United Kingdom there has been a flurry of recent cases (here, here, and here) that all have to do with gender representation and how it affects sexual activity. Particularly, these cases revolve around issues of consent. These cases are important because they are setting the legal precedent for future cases, and unfortunately it seems that they are finding it to be a criminal offense to have sex with someone without disclosing your 'gender'.
The most recent case I have come across was decided just earlier this year; R v McNally  EWCA Crim 1051. In this case, the accused, Justine McNally, made a profile on the social website called "Habbo" where she met the victim "M." Mcnally's avatar for the site was a male named "Scott." M at first contact believed that she was communicating with Scott Hill from Glasgow. Over the next 3.5 years their relationship developed, eventually reaching the point of them being romantically exclusive and engaging in phone calls, webcam chats, talk of having children together, and sexual conversations.
After M's 16th birthday, in 2011, arrangements were made for Scott to visit M in London. When the visit occurred the accused presented themselves as a boy, wearing gothic clothing (although this is denied by the accused), and wearing a strap on dildo under their pants. The court noted this resembled a penis. There were a total of four visits where different kinds of sexual acts were reportedly engaged in including digital and oral penetration and, allegedly, penetration with a dildo (this was not pursued). After the mother of M found out, informed M, and they confronted McNally about her 'being a girl' charges were filed. McNally did state however that she wished to have a sex change in order to continue the relationship.
The Court of Appeal, where the case was ultimately decided, addressed a few things, but the issue with which I am most concerned about is the issue of whether or not M consented to the sexual activity, or really if the consent was achieved through fraud thereby vitiating the consent. The Lord Justice Leveson claims that there are instances where consent is not invalidated, like neglecting to disclose one's HIV positive status (citing R v B  EWCA Crim 2945), but that in this case McNally, by failing to disclose her gender, does.
Its important to look at the relevant statute on when consent is and is not legally valid. For this we look to the Sexual Offences Act 2003. Section 74 of the act refers to consent and it says, "a person consents if he agrees by choice, and has the freedom and capacity to make that choice." This is not all that revealing. More importantly, sections 75 and 76 refer to situations where consent is vitiated. 75 lists a series of situations to which none apply in this case, and is ignored in the judgment. However section 76 is addressed in the case and says that consent was not given if:
"(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;The Lord Justice dismissed s.76 of the SOA 2003 as irrelevant, quoting Hallett LJ, he says that, "we need not look further than s.74." To put this in simpler terms, this part of the law means that if you lie to a person about the purpose of the sexual conduct then they have not consented to the sex, as they were not fully informed. This is important because in the case of McNally it seems plain that both parties knew the purpose of their acts. They wished to feel close, they wished to express their sexual desires for the other. There was no alternative or secret purpose.
(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant."
So Lord Judge Leveson believes, as do I, that the only possible section to use is section 74. As stated above this section defines what consent is. Leveson LJ uses the following reasoning then:
"In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgment. Lord Judge CJ's observation that "the evidence relating to 'choice' and the 'freedom' to make any particular choice must be approached in a broad commonsense way" identifies the route through the dilemma.We must take a common sense approach as to whether 'choice' and 'freedom' were given to the victim and here I think is where the Lord Justice and I differ. Leveson LJ states that under the idea of "commonsense" that the nature of sexual acts are different dependent on whether they are made by a male or a female, and what that person is perceived as. However, I would contend that this does not necessarily change the 'nature' of an act. When looking at that word we use the definition: "the basic or inherent features, character, or qualities of something" as found in the Oxford English Dictionary. The acts of being penetrated orally and digitally seem the same regardless of the gender of the one doing it, seeing as both males and females can do so. The only exception I see to this is if the penetration is done by a penis which is clearly not the case here.
Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M 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 defendant's deception."
Lets also note that the Lord Justice refused to invoke s.76 of the law, but when referring to the 'nature of the act' directly is a case of s.76 paragraph (a). So the Lord Justice seems to be have some contradictory thoughts on what or where the law is applicable seeing as earlier in the judgement he deemed there was no deception as to the nature of the act.
Some other things to note about this case: The Judge seems to lack any knowledge of the difference between sex and gender (you can read about the difference here). He seems to conflate the two, or rather, just treats them as if they are the same. This is not all that uncommon in law, however, it is problematic. This use of words renders Trans* and gender minority peoples invisible in the eyes of the law.
This common conflation is even more problematic when the law now seems to be divided on whether or not it recognizes those who don't necessarily conform to gender standards. Transgender is recognized in law, and people can have their gender legally changed and changed on their birth certificates as well. However, in cases like this the idea of being trans seems to be completely disregarded. Justine McNally lived in an online world as another gender for a very long period of time, and also stated that she wished to have a sex change. It was acknowledged in the lower court that she had trouble coming to terms with her sexuality - a maybe misinterpreted fact?
It cannot be said in certain terms that McNally is trans or any other form of gender, because it has not been addressed publicly. However, it seems that there seemed to have been some issues surrounding her gender identity. She seemed to be struggling to figure out who she is. This is not something unique to her and indeed can be something very common for trans* people. It is a very difficult thing to recognize and express a gender that goes against what the rest of society says you are and should be.
This case seems to hinge on the fact that McNally did not actually state that they are female. The problem with this is that this can apply to any transgender person who has not had surgery. This is again because the case does not differentiate between sex and gender, and this would then legally force pre-op (or those who don't wish surgery at all) gender non-conforming people to disclose their gender history, otherwise it could be seen as invalidating consent. This, to me, seems to be a very dangerous precedent.
I noted above that there seem to be inconsistencies in the law, and where and when it applies to what makes or does not make up actual consent. HIV status non-disclosure does not negate consent unless it is stated as a lie, meaning if nothing is said then consent is still valid. Things other than gender also do not undermine consent such as race, criminal history, religious beliefs, past sexual partners, etc. So why do we choose to apply this principle here to gender? Do we apply the same principle of passive 'deception' and only make it criminal where it is blatantly lied about? If thats the case was McNally fairly prosecuted? If not then why do we limit such consent issues to only these few things and not a wide array of things surely they should all be adding to things we need to know prior to consent?
I can hear some of the arguments now: "We shouldn't be regulating sex!" "Why should we have to learn so much about our sexual partners beforehand?" Really these don't seem to be arguments against my position at all, but rather they support my initial statement: why should this be seen as something that needs to be regulated?
Regulation generally is in response to some harm being done, and to prevent that harm from happening. So lets examine the case of gender and how not knowing may cause harm. Lets use the above case. M, the 'victim', had sexual relations with McNally. These were thought to be fully consensual and as far as has been said there was no explicit questioning of the accused's gender. It was assumed they were a boy because of their name and their apparent dress and mannerisms. It should be said that it seems M had genuine feelings for the accused as a person. So at the time of the acts, there doesn't seem to be any harm done; rather there seems to have been benefits (sexual gratification, emotional gratification, etc.). It is not until later when it is discovered that there is a lack of a penis on McNally's person that M feels distressed, betrayed, hurt, and so on. We seem to have found the apparent harm.
Lets now use a similar example but rather than gender we'll use race. There is a person (B) who is mixed race, lets say part black and part white for simplicity. They have sexual relations with M and both are satisfied and seemingly consenting. Later M finds out that B is mixed race and is now feeling hurt, betrayed, distressed, disgusted, etc. Does it seem reasonable to punish B because of these feelings? I would argue it does not. These feelings come from a mistake made by M and are of no fault of B.
I do not wish to sound dismissive or demeaning towards the feelings of M but the feelings do not seem to be stem from anything but M's own personal issues over the specified characteristic and were the direct result from a mistake made by M's judgement. It would be very different if, say, M found out during sex that B was mixed race, withdrew consent and B continued or lied about their race and continued. However, merely having a certain trait or being a certain way should not, in my eyes be treated the same.
The same can apply to gender it would seem, and indeed to the case at hand. McNally did not continue in spite of knowledge that their partner did not want to have relations with someone who had a vagina. As far as I know, no mention or question of McNally's gender was ever brought up. Some could say McNally lied on her Habbo profile or when she told M that her name was Scott Hill but what if she actually identified that way? And that doesn't seem to be much more than lying about a name. It would still seem to be M who assumed a male gender because of McNally's chosen alias.
A final thing to consider when thinking about harm is that the harm revealing such histories could pose to the sharer. Especially in the case of trans and minority peoples revealing such things. These revelations could be harmful to their own psyches and could be dangerous for them socially. For young or newly transitioning people these risks are much higher. Its important to mention that I can see some situations where this decision could be appropriate/applicable. If, for example, a male who wishes to have sex with lesbians is dressing up as a woman to do so, I could see how there may be grounds to make it criminal. At the same time, I would be extremely hesitant and cautious to do so as per the reasoning above.
This judgement while possibly coming from good intentions, seems to me to be not only a gross injustice for McNally but also seems to be overly general in its application. It sets a very dangerous precedent for those who are questioning and/or exploring their gender/sexuality and those who identify as trans* (both pre and post-op) and only further demonstrates inconsistencies within the law, specifically those regarding consent.
You can read the full judgement here.