Cis until proven guilty: Disclosure and consent at the Court of Appeal

Content Warning: Alleged violations of consent and descriptions of their nature (quoted from the judgement)

Yesterday, Zoe O’Connell reported upon the Court of Appeal judgement in the case of McNally vs R – the latest in a handful of sex-by-deception cases in the UK. Regardless of its conclusion, the framing and phrasing of much of the judgement is deeply concerning, particularly coming from Lord Justice Leveson who had appeared sympathetic in regard to establishment mistreatment of trans people at his inquiry into press ethics. However, I’d like to focus on an extremely pertinent question of law that I believe has been overlooked in the judgement.

If it’s not immediately apparent, I have no legal training and nothing in this analysis should be taken to consitute legal advice. As it is unclear from the available information how the appellant identifies their own gender, I’ll be using neutral pronouns throughout.

The relevant part of the appeal against conviction appears to rely upon the assertion that the appellant had been misinformed and, absent a guilty plea, no conviction would otherwise have been secured. Citing R(F) v DPP, Leveson notes that in determining cases of consent, “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad commonsense way”. On the face of it this appears reasonable, notwithstanding the undertones of “I know it when I see it”.

In paragraph 26, Leveson contends the following (emphasis mine):

Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception.

Leaving aside the unspoken cissexist premises of the “common sense view” employed, there are two substantial questions which the following paragraphs do not address. First is that there is a matter of legal fact as to whether or not the appellant is a “girl”. Second is whether or not establishing such a legal fact would in itself imply that any substantive deception (such as could negate consent) had taken place. Perhaps unsurprisingly, I don’t believe that either is the case.

Since the passage of the Sexual Offences Act 2003 in which the relevant offence is set out, UK law regarding the matter of gender has undergone two substantial revisions. The Gender Recognition Act 2004 (GRA) provides for legal recognition that a person’s gender is not that which was assigned to them at birth. In addition, the Equality Act 2010, while defeating some aspects of the GRA, provides a modicum of protection for all people of trans experience regardless of their intention to seek, or subsequent acquisition of, legal recognition.

Under the test set out in s. 7(1) of the Equality Act, the appellant would by their adoption of a “male” name and corresponding presentation be understood as “[having] the protected characteristic of gender reassignment” – that is, qualify for legal protection in employment, provision of services, etc, on grounds of their trans experience. It is clear then that socially, if not administratively, their status is recognised as not being uniformly female.

If one applies for recognition under the GRA – and none of the material facts would in themselves have prevented the appellant from succeeding in doing so – s. 9(1) states that “the person’s gender becomes for all purposes the acquired gender”. The Act then goes on to state that this “does not affect things done, or events occurring, before the certificate is issued”, but that (as should become apparent) is immaterial in this case.

While s. 75 and s. 76 of the Sexual Offences Act list a number of circumstances under which consent can be assumed to be absent or void, deception as to gender is not one, and the ruling relies solely on s. 74. That is, the question of gender comes not from the simple fact of the appellant’s administrative gender (as distinct from their social experience of gender), but from the argument of some common sense understanding that their being male or female (in whatever sense) materially alters the sexual nature of what took place, and that the appellant’s actions removed M’s choice in the matter.

All else in the case being equal, had the appellant secured legal recognition as male – which is not predicated on their physiology – there would be no case to answer. While the issue of a certificate would provide no comfort to M, it would emphatically negate any question of deception as to gender. Upon discovery of the certificate, police would be forbidden from disclosing its existence to M under s. 22 of the GRA, as there would be no crime to investigate, and no court or tribunal proceeding taking place. Given this deus ex machina, it is difficult to contend that it is the actions of the appellant in presenting as male which meaningfully remove M’s ability to choose.

Objections to the ideological delegitimisation of trans identity and experience aside – and that’s a big aside – I don’t know whether there are further legal grounds on which the appeal against conviction could be denied. What does seem apparent though is that the judgement has been constructed at a troubling distance from the perceived legal status of trans people in the UK. Whether that is an error on the part of the courts or parliament, there is certainly a gaping chasm between our protection under law and the protections we have been led to believe that we enjoy – and that needs addressing urgently.

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