Sex by deception: Legal Case.
I was not intending to blog this case. I fear the bald facts lend themselves to a curiosity born out of prurience. I myself was intrigued so I am not in any position to judge. It is hard not to question the circumstances, as laid out in the case. Transcript
The bare facts of the case are:
On reflection, I decided to blog as it raises the issue of Sex By Deception, currently a criminal offence. There is talk about reviewing the law. Stonewall are one of the organisations lobbying for this:👇
Whilst there could be a progressive case for reviewing the law covering sex by deception (I am thinking of Spy cops) it’s also fraught with risk. I am mainly thinking of #CottonCeiling here. The term #CottonCeiling was coined by a trans porn actor and activist, Drew DeVeux. It describes the “exclusionary” practices of Lesbians from a trans perspective. Sex by deception laws,currently offer some remedy if sexual activity is embarked upon without disclosing your sex / anatomical status. Trans activists don’t think sex is a meaningful status, only gender, so they oppose this legislation. A taste of the rhetoric on this topic is below:
From a Lesbian perspective #CottonCeiling rhetoric posits their same sex orientation as “bigotry” and trans exclusionary. In fact it is male exclusionary and doesn’t necessarily exclude females who self-identify as Transmen. Many lesbians have also pointed out that this is all too reminiscent of the “corrective rape” practiced on Lesbians. (Still happening now I hear from South African Lesbians) How dare they exclude males from their dating pool?
The term cotton ceiling is a twist on glass ceiling but here it is not about the barrier to women’s opportunities but the barrier (women’s knickers) to sex!
The person who led this workshop moved to the UK to work for Stonewall. Its not just a few outliers on the internet.
The cases I am aware of, in the UK, have, however, all been “transmen”. In a practical sense testosterone does seem to do a lot more heavy lifting, than oestrogen, so a passing “transman” seems more common. Outside of celebrity world a passing “transwoman” is more rare. Transmen are maybe more likely to commit this, from an opportunity perspective, not from a propensity. Transactivist rhetoric, however, seems more focussed on females excluding males from their bedrooms I have not seen an equivalent movement around the #BoxersBarrier. Psychologically de-programming male socialisation seems to be a much harder task, perhaps the prominence of sexual demands, made of women, by males, is to be expected.
This legal case pre-dated the Sexual Offences Act of 2003 so used a charge of perjury but it has implications for fraudulent claims to be of the opposite sex. We need a discussion on how that speaks to “consent”. The current law provides for 👇
This original case was tried on the basis of perjury from this legislation.
I don’t have the transcript of the original case (yet). The later cases relate to a long legal battle for the trans-identifying female to have access to the children, born during the marriage, and financial support from the ex “spouse”.
The case struck me as rather sad, which it is. However, as I thought more about it I was struck more by the consequences, for the woman, caught up in this deception.
After I posted a brief reference, on twitter, the responses (mainly disbelief) made me dig a little deeper. Eventually I found a much earlier case, involving the same couple, which provided a lot more background. 1996 case. There will also be an earlier case relating to the perjury charges. I have not located a transcript for that case.
What is clear, from the earlier case, is that the wife was not aware of her partners sex, certainly not at the time of the marriage. Just when she was fully informed is not entirely clear. Certainly both parties had opposing interests when it came to establishing when the fraud was exposed. The “husband” faced a possible seven year sentence for the deceit. The “wife” faced battles over the children (conceived by artificial insemination) and sharing financial assets. Should the partner be able to claim rights to her property and financial assets? If it was determined a crime had been committed then the party to the deception likely had no legal claim on any financial assets accumulated during the “marriage”.
The FTM had undergone a bilateral mastectomy (In 1977) but the surgery had not been straightforward so the patient opted not to undergo a phallioplasty. Interestingly here is an audio recording detailing the complications from a recent recipient of a phalloplasty This appears to be a dangerous, and poorly regulated, procedure over 40 years later. The decision to avoid it, from a health perspective, seems to have been a wise choice.
The skepticism about the wife’s ignorance of her “husbands” sex seems to be explained by her youth and inexperience and the use of a prosthetic device. Elsewhere in the testimony it is clear that much effort was made to preserve bodily privacy, by the claimant. (The claimant in this case is the FTM as it concerns access and “ matrimonial assets”). The differing backgrounds of the claimant and “spouse” are detailed also 👇
Following the marriage it was not until some years later that the couple sought help to conceive. It is not known if they had been “trying” up to that point. If they had then this was a cruel deception. No details are included as to whether the mother had been subject any other fertility tests or treatments. What seems clear is that the male had not been subject to any tests, not unusual for the time. Far easier to medicalise the “infertile” wife than question a man’s masculinity. With the increasing clamour to be attracted to “gender” not sex this is one of the consequences of denying biological reality. 
The relationship began to breakdown in 1994. At this point the wife confided in a friend who was also a private investigator. Below is an account of what led to the discovery and the shock it occasioned to the mother. 
There is a lot more speculation in the transcript. From my own reading it does seem as if there was, at the very least, some awareness of the physical irregularity in the FTM. A letter is referenced which appears to show some incident occurred which was a revelation, of some sort, to the wife. From a legal point of view It was the facts known at the time of the marriage that were the determining factor in any claim against “matrimonial” assets. There is a clear admission that the facts were not declared.
The basis on which the “husband” was tried and the defence case are briefly summarised below 👇
Point three in the defence minimises the offence as “not so serious” and go on to imply diminished responsibility, due to the nature of the “personality disorder”. I presume this is no longer a legitimate defence since the condition of Gender Dysphoria has been reclassified. It is no longer, officially, a mental health issue. More on the politics of this classification shift here: Diagnostic Status of Gender Dysphoria Written by a Transexual Dr Ann Lawrence.
In any event the defence failed to convince the Judge. 
The judge found that perjury had been committed. The deceit had been perpetrated because the claimant had known that the marriage would not take place if their sex was acknowledged. The 2006 case hinges on any claims for ancillary relief. In lay terms the claimant would not, legally, be allowed to benefit from a “criminal” enterprise. A stealth existence and need to “pass” must place intolerable pressure in those with gender Dysphoria. The judge references this, sympathetically, but this doesn’t equate to an absence of responsibility for the deception.
However should a real psychological need take precedence over someone else’s right to make informed choices? When this is about who has access to your body? The judge deemed it a profound betrayal of trust.
Now the concept of an “innate gender identity” is treated as a medical, but not a mental health, condition much of this defence would, presumably, be moot. A genuinely held belief that you are the opposite sex doesn’t change biological reality. If someone has a Gender Recognition Certificate there are privacy laws protecting that information. They are to be treated as if they are the opposite sex. Is there any protection, other than sex by deception, for women, or men, deceived in this way? Extreme activists would say there is no deception. They would argue they literally are the sex they say they are. That there is a deeply held conviction I can accept, that I should have to share it is the sticking point.
All mainstream political parties have mainstreamed transgender rights. Labour explicitly say they wish to review the legislation in this area. I single out Labour only because I am a lifelong Labour voter and my fear is we are throwing an election over this. 👇 I am indebted to Mumsnet for the quote below. [The link was included but this document is no longer available to view. Hopefully this is because they are reviewing the content. Hope springs eternal: Securing Trans Equality]
“Point 14: Review the law relating to legal issues of consent to rape and sexual offences to ‘sex by deception’ in order to remove potential discrimination and criminalisation of trans/gender variant people….”
Why are this community a special case? This suggests we are going to be legally compelled to validate “gender identity” even in our most intimate relationships. Are gay men allowed to reject trans men? Lesbians Transwomen? Will an offence have been committed if sexual contact takes place only to be confronted with a seven inch surprise? These are real ethical and legal issues. I have zero faith that our political elite will make the right choice.
