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.