We need to talk about rape, “deception” and trans people

Content note: this post discusses sexual violence and systematic transphobia

The Court of Appeal has codified into UK law that trans people who do not disclose their trans status could be considered sex offenders. For full commentary and exploration of this ruling I urge you to read this whole post on Complicity, but to summarise:

The judgement goes on at length beyond this and is also concerned with the accuracy of legal advice given, but there appears to have been some doubt as to how aware M was about the gender situation. Given they were both teenagers, possibly confused about sexuality and on one side gender, this perhaps isn’t surprising.

Essentially it goes on to say that although the burden of proof is with the prosecution, if you’re trans and out yourself to someone prior to any sort of sexual act – even touching – then it would be best if you can prove it, in case they (or their parents) later try to prosecute. A Gender Recognition Certificate would, I hope, be a defense – but having read the judgement, I’m not certain.

Quite how you prove you told a partner without outing yourself to all and sundry, putting yourself at risk of physical violence, loss of employment, homelessness etc is not addressed in the judgement.

As zoeimogen points out on Complicity, similar precedents do not exist for not disclosing, for example, marital status. They do not even exist for not disclosing whether or not one has HIV. It is a really, really bad ruling with potentially horrifying implications for the trans community. It creates a climate of fear, a hostile environment. Ultimately, it means that if a trans person is raped by a cis person, the cis rapist could turn the tables and declare that actually their survivor was the rapist for not disclosing.

If you think this is some kind of exaggeration, I invite you to look around the world to see other examples of how legislation has been set up to stop trans people from being able to seek justice through legal channels, and cis people claiming trans people are rapists. In Singapore, in the US, in Sweden, in India where they recently rewrote their rape laws so only cis women could be raped. They are legislating away the possibility of a group of people–already more vulnerable to rape–to be raped.

This is common, and this is systemic. It grows from a combination of factors making it sadly inevitable. The general attitude of dehumanisation towards trans people. The notion that it is genitals that are gender. That “trans panic” is considered a valid defence. The insistence that trans people are some sort of intruder and deceiver, sneakily infiltrating the dominant cis supremacist order. And yes, we cis feminists are complicit in this. When trying to make change, we sometimes forget our trans sisters, accidentally throwing them under the bus. Then there’s the actively bigoted feminists, who want to see this happen. It’s not just feminists, generally social justice activists are very poor on remembering that trans people exist, and bigoted when they do.

Tomorrow, the Pride celebrations are going on in London. Ostensibly a celebration our pride in being LGBT, the whole thing is built on a history of throwing trans people under the bus. The role of trans women in kicking off the Pride movement is all but erased from memory, and tomorrow we shall be celebrating the passage of the UK same sex marriage law which throws trans people under the bus.

We look away, far too often, but for trans people the option of looking away is not there. And if we are to make things right, we must not look away. We must look and talk about these horrors, because our silence has allowed them to grow and grow. We must address cissexism, within ourselves and within society. We need to talk about this ruling, because it is an entirely logical extension of a system that many of us have unwittingly contributed to. We must look, and we must work to unpick every thread which wove this vile cloth.

We need to talk about all of this, because it is not OK.


Thanks to @metalmujer for the links to worldwide instances of similar cases.

ETA: some shit I’ve cocked up on. Link to what I did wrong. Unedited post in the interest of honesty and transparency.

25 thoughts on “We need to talk about rape, “deception” and trans people”

    1. Of course. I phrased it that way because feminism claims to be concerned with the lot of all women, and it really, really fucking isn’t.

  1. The issue of deception, sex and rape is a pretty difficult one. There has been discussion from the opposite side of the spectrum in the guardian today:


    and the definition of rape proposed by quite a few of the comments would probably bring those who do not disclose trans status within the definition of rape. The question is then, is it possible to define deception and consent in a way that catches one (ie scum undercover cops) and not the other (those who do not disclose trans status)? I ask this as a genuine, and not rhetorical, question.

    1. It is a difficult one, because with the cops it’s a clear violation. Maybe start by making *that* illegal and build up?

    2. The distinction is pretty clear. Trans men are men. Trans women are women. It’s not a deception – it’s that the rest of us tend to make cisnormative assumptions about people’s genitalia. In the case of the police officers, they actually were not who they said they were. It was a clear case of deception.

      I may be wrong but believe UK law already acknowledges that people’s gender is not defined by their genetalia as it’s possible to change the gender on your ID documents without having SRS. Therefore surely it ought to be possible for the law to recognise that not meeting cis people’s cisnormative assumptions does not equal deception.

      1. Not to mention what sort of situation this puts intersex people in. If you have all the genitalia of one assumed sex and the chromosomes of another assumed sex, are you supposed to disclose that?

  2. There needs to be a wide-ranging conversation. Period.

    In the end, it would not entirely surprise me if society decided that birth gender SHOULD be disclosed. What is not tolerable is society making failure to disclose one thing a crim offence, while failure to disclose another perfectly OK.

    In the end, i fear the courts will end up with blood on their hands: http://www.gaystarnews.com/article/trans-activist-says-uk-court-sanctioning-trans-murder120413

    1. Maybe cis people should all start handing ourselves in to the police and confessing that we’ve slept with people without first telling them what sex we were assigned at birth.

  3. Just a note: there IS precedent for non-disclosure of HIV status in incidents where the virus is transmitted. See R v Konzani and R v Dica. In those cases, non-disclosure amounts to recklessness. But it goes further than that: in the past, non-disclosure of sexual health status has resulted in a jail sentence for transmission of herpes. See here:


    The issue of disclosure of _____ status and sexual consent in general warrants serious attention. I hope the Law Commission picks up on this.

    1. That’s based on a law of causing bodily harm to someone, though. It’s not actually a criminal offence in terms of rape, but of causing someone bodily harm, which isn’t the case here.

  4. Pride is strongly transphobic. Trans women who attend are routinely groped and assaulted.

    Perhaps most cis people genuinely consider us all rapists? I genuinely don’t know anymore. If rape is due to feelings of violation on non-disclosure, then…

    A lot of trans people don’t sleep with cis people for safety, and I can see this number only increasing.

  5. What constitutes disclosure? That’s a serious question.

    I have always been about as out as a trans person can be and yet on occasion have discovered that people I knew quite well, had somehow not actually registered the fact. At a point when bed was at least being discussed.

    Are we really saying that society will expect us to get a signed form? And if so, how is that equal?

  6. This case is really, really, really dangerous. None of the sexual acts here were sex/genitalia specific. It is effectively enshrining cisnormativity in law. That if you gender in a manner which has a masculine coda, you are deceiving people into thinking that you are male.

    In terms of framing deception to catch cops but exclude trans folk its not really that difficult. If you are a cop and you have sex with a woman by pretending to be her lover rather than her undercover handle, there is a clear breach of fundamental identity – you are not who you say you are.

    But in the case of trans folk, the fact that someone might assume that a man is male or a woman female is just an erroneous assumption. It is the equivalent of suggesting that someone who is only attracted to blondes is raped if they find out after the fact that their lover had dyed blonde hair rather than natural and they failed to disclose this prior.

    Their *assumption* on the basis of cisnormativity and consequent consent, isn’t the fault of the trans person, no more than someone who agreed to sleep with someone on the assumption that they were rich because they were wearing a rollex watch and would not have slept with them had they known that they were poor.

    This is totally different from where there is actual deception over penetration – there have been a couple of cases where the woman believed that she was being penetrated by a body part, but was actually being penetrated by an object.

  7. (Appologise for the strained and slightly errasing language in this post. I have sever learning difficulties so have difficulty expressing myself a lot of the time)

    I’ve been wondering that if this case would have gone the same way if the cis person had been gay, then found out that they had sex with a trans* person who was assigned to their opposite (for want of a better term) sex at birth?

    A lot of this case seems to be “ew, I had gay sex without realising it” because of the trans* person’s birth sex, so I wonder if the court would have ruled the same way if it was “ew, I had straight sex without realising it”

  8. I agree with the point you’re making here, but are you sure you want to include that NewNation link? newnation.sg is very definitely *not* a serious news site.

  9. Isn’t this potentitally a slippery slope? How is a trans-man not revealling his trans status different to a blonde Jew not revealing their semitic status to a one night stand who turns out to be a closeted neo-Nazi? Why can’t the trans-person in this case argue that their accuser at no point disclosed their “transphobic” status?
    Who the fuck wrote this law?

    Oh wait…

  10. Hmpf. You took an issue of transmisogyny and degendered it to erase transmisogyny, which is very common, typical cis feminist transmisogyny itself.

    This is a major screwup of yours and I am deeply troubled that my name is invoked as in any fashion cosigning this erasure of transmisogyny. For the record, while I helped inspire this discussion and appreciate the end credit I also at the time protested your nonconsensual degendering of trans women facing erasure of our rape victimization and I certainly do not cosign its reappearance here.

    If you act like only cis people experience misogyny, or that being trans erases the highly gendered violence described as transmisogyny that targets trans women but never trans men, you are actively being transmisogynist and should not involve me or other trans women in sny way in same.

    -voz (@metalmujer)

    1. Thanks for replying, voz. As I said to you on Twitter, the reason that I’ve not been specifically writing about transmisogyny is because the UK case pertained to a trans man.

      Saying that, I acknowledge my screwup here, and would be grateful for any pointers as to how to negotiate this territory better.

      1. Eh…thanks. I think. That said you’ve missed the point and cissplained, which absolutely doesn’t help. So I’ll break it down for you:

        1) if someone who knows better (here an actual twoc) tells you something isn’t a good idea, explaining why you thought it was is condescending at best. Think about it…I’ve seen thousands like you. Nothing cis people do is ever surprising or requires an
        “explanation.” No, really. I bullshit you not here.

        2) thru 10,563) See #1

        10,564) You missed the point about cis privilege granting the freedom to discuss cis
        women’s issues as gendered but homogenize trans women’s away as just trans or worse, center men as you did and then make weaksauce excuses. This is systemic transmisogyny and you are adamant about defending it. Stop.

        10,565) Ask yourself why despite my giving you half a dozen links on trans women and rape, and your full knowledge that the deceiver trope almost entirely harms trans women bur not trans men, and my calling out your own persistent derailing; ask yourself why you refuse to act meaningfully on trans women’s issues **in a similar manner and with similar care that you routinely fisplay towards cis women here?

        That’ll do for a start.

        1. Thank you for your reply. I’ve linked to this set of the comment thread at the top and I shall try to work on this.

        2. There have been 4 publicised ‘sex by deception’ cases relating to trans people within the UK. In all 4 of those cases the people targeted have been trans men/FAAB people presenting as men. So actually you’re talking absolute bollocks. If anyone within the trans community were to be excluded from this aspect of discussion it certainly shouldn’t be the ones who, you know, are actually being arrested, imprisoned and having their lives ruined by it.

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