The Eye of the Deceiver

New Guidance on “Sex by Deception” in England and Wales

Do you have to reveal to someone you’re going to have sex with whether you are male or female — even if you “present” or “identify” as the opposite sex? The Crown Prosecution Service in England and Wales has finally ruled on the issue. Reactions have been predictably mixed.

There’s a crime in England and Wales called “Deception as to sex,” more commonly known as “Sex by Deception.” It’s not always clear to define. Someone (A) may commit a sexual act with someone else (B) using various kinds of deception: for instance, A may pretend to B that in delving into her vagina he is carrying out some kind of medical intervention instead of a sex act. Or perhaps A fails to disclose vital information such as a disease or marital status. But then we get to sex. Biological sex, that is. Or gender. Courts constantly get these things muddled up.

A particularly muddling case was heard by the Court of Appeal in 2013: McNally v R [2013] EWCA Crim 1051. In this weird case, the appellant, the teenage girl McNally had sex four times with another girl (B). Throughout their liaison, B thought McNally was a boy. Don’t ask. Apparently it was dark and there was a reluctance to get undressed.

The Crown Prosecution Service (CPS), commenting on this case, quoted the court of appeal’s ruling that: “depending on the circumstances, deception as to gender can vitiate consent” [para. 27 of the judgment]. The complainant had chosen to have sex with a boy, but the appellant had deceived her. The CPS adds that although the court that had ruled in McNally had used the word “gender” with regard to the deception in question, it was probably referring to a deception as to sex, as there was no issue of “gender identity” in the case. It adds, rather mysteriously in my view, that the appellant was not transgender: she was simply a girl who presented as a boy: “McNally could therefore be analysed as an identity or impersonation case.” The CPS does not explain what criteria it is using for the distinction it makes here.

The CPS goes on to say that although McNally was a useful precedent for cases of deliberate deception, it was unclear what applied in relation to trans and non-binary suspects: “The question remains whether the sexual nature of the act is different where the complainant is deceived into believing that the defendant is not trans or non-binary; and, if so, whether different considerations apply.”

In other words, the CPS said that in McNally, the deception was deliberate, but the situation may be different if the perpetrator is trans or non-binary. Is failure to disclose trans or non-binary status a case of deception, and therefore potentially a criminal offence, or not?

The CPS decided to hold a public consultation that would potentially update its Guidance to say something helpful about the situation in which a person A has sex with a person B without disclosing their trans or non-binary status.

The organization SexMatters helpfully compiled the views of some of those who had insisted that non-disclosure should not be counted as “sex by deception.” Stonewall had already argued in 2015:

“Recent ‘sex by deception’ cases… demonstrate that it is possible for nondisclosure of a person’s trans status to impair the validity of consent. This leaves a great many trans individuals at risk of prosecution for a criminal offence. It is, however, still unclear as to whether the courts regard this to be the case for a trans person who has undergone medical transition, and it is further greyed by whether or not an individual can be defined as trans, based on their appearance, by the court. Clarity is urgently needed.”

A group of lawyers and academics argued forcefully for “sex by deception” in such cases to be decriminalized. Professor Alex Sharpe couched his arguments in a kind of Butlerian twaddle: a fragment will suffice here:

“For it seems inescapable that ‘harms’ cisgender people experience are inextricably connected to cisnormative ideology. It is, I argue, precisely this ideology that renders transgender and other gender non-conforming people deceptive, their deception being an effect of cisnormative privilege and power, through which ontologies and epistemologies are constituted.”

Got it. People who don’t disclose their sex are not really being deceptive at all. If someone accuses such a person of deception, the perpetrator is really a victim of the accuser’s “cisnormative privilege and power.” What a wonderful bit of DARVO (Deny, Attack, and Reverse Victim and Offender”).

So when the CPS decided to hold a consultation in 2022 to sort out their Guidance on sex by deception, several groups had long prepared their arguments.

In line with Stonewall’s earlier arguments, for instance – but with none of the polysyllabic blether of Alex Sharpe – the trans youth charity Mermaids simply stated:

“We would argue that someone’s gender is not simply a matter of perception, but rather someone’s true and authentic identity. If a person perceives themselves to be a man, we would suggest that this means that they are a man.”

(Er… so, the other person’s perception doesn’t come into it, only the perpetrator’s perception.”)

In other words, there is nothing to disclose. What you see is more or less what you get, and anyway, it may be too horrible for a person to disclose his or her sex: “Disclosing your gender history/sex assigned at birth may often be something private to a person or traumatic to speak about openly.” The perpetrator is not being deceptive: it is simply a matter of privacy and personal information. Got it.

LGB Alliance also submitted a response to this consultation, in which we naturally argued the opposite. We pointed out that the consultation itself was wrongly entitled “Deception as to Gender” instead of “Deception as to Sex” – and there was a persistent conflation of sex and gender that made the text hard to read. Other phrases in the Consultation such as referring to sex as “assigned at birth” were likewise drawn from the genderist lexicon.

LGB Alliance considered the following question:

Question 2 - When considering the factors that are relevant to prove deception and lack of consent, does the guidance strike the right balance between recognizing the rights of trans persons to live fully in their new gender identity and the need not to put an undue onus on complainants to discover or confirm the gender status of the suspect?

We wrote:

“LGB Alliance sees the question as a misrepresentation of the issue at hand. It is not the suspect’s ‘gender status’ that should or should not be ‘discovered or confirmed’, but their sex. This is where the pervasive conflation of sex and gender throughout this document is most disturbing. Some people are heterosexual. They are only attracted to people of the opposite sex. Some others are homosexual. They are only attracted to people of the same sex. Some people are bisexual. They are attracted to people of either sex – but even they have a right to know, and will in most cases want to know, which sex a person is before engaging in sexual relations with them.”

The question – and the Consultation in general – is just one example of public bodies using what I would call Stonewall’s confused and confusing lexicon, which is guaranteed to produce the wrong questions, or to frame them in the wrong way.

Fortunately, when the new Guidance was published, logic and sense prevailed: in particular, the CPS now says:

• The guidance is now titled “Deception as to sex” instead of “Deception as to gender.”

• We have clarified that in many cases the suspect will be non-trans, i.e. a woman purporting to be a man or vice versa. However, the principles in the guidance apply to all cases of deception as to sex, whether the suspect is non-trans, trans or non-binary.

The puzzling distinction between non-trans and trans remains – what criteria is the CPS applying? – but fortunately the text says it doesn’t matter. Because it doesn’t.

Most of the organizations opposed to the criminalization of “Sex by Deception” are keeping their heads down. We can perhaps get a sense of their likely reactions from the rant of the perpetually enraged India Willoughby, who wrote:

“The legislation that is quietly being implemented by the UK Establishment against trans people right now by this Labour Government is truly horrific. Trans people in the UK must now declare their birth sex to a partner before sex - or face prosecution for rape. Outing themselves from the off. Degrading. ... To hive a real world scenario, if a woman who is trans was at a Christmas party tonight, gets drunk, and ends up having sex with a guy - both parties lost in the moment but consenting - she could be thrown into a male jail and treated as a sex offender if the guy subsequently finds out her past and retrospectively withdraws his ‘consent’ because the woman didn’t tell him she was trans at the time.... It’s ... incredibly stigmatizing and dehumanizing - with the clear inference that trans people having sex with cis people are frauds, and that it is dirty and wrong. Utterly barbaric and inhumane.”

Well. I think the organizations that are remaining silent have realized the new Guidance is neither barbaric nor inhumane – or in any case, that this is not a battle they can win. You can’t meaningfully consent to sexual activity if the person is deceiving you as to their sex. I’m pleased the CPS has acknowledged this. One small step at a time, thanks to the combined work of so many dedicated, largely voluntary, organizations, we are edging our way back to reality – and to basic rights – in the UK.