(2015) Sexual Intimacy, Gender Variance and Criminal Law

Abstract

This article considers a series of recent cases where young transgender men have been successfully prosecuted for sexual offences in circumstances where their female cisgender partners claimed to be unaware of their gender histories. The article will (i) detail the legal background to these cases, (ii) offer a critique of the claims that non-disclosure of gender history serves to vitiate consent, constitute harm and provide evidence of deception, and (iii) provide three arguments as to why criminalisation is inappropriate in any event. The arguments against criminalisation that will be advanced are that prosecution (i) produces legal inconsistency and is potentially discriminatory, (ii) unduly valorises the sexual autonomy of cisgender people, and (iii) is contrary to good public policy. In developing these arguments, the article will highlight how the ‘intelligibility’ of prosecution proceeds from a prior cisnormative framing of events.