Abstract
In Sexual Intimacy and Gender Identity ‘Fraud’, Alex Sharpe takes on the ambitious goal of reshaping conversations around sex, consent, and gender, specifically as these impact on transgender and gender nonconforming people. The book responds to the recent prosecutions in the UK of transgender men for sexual offenses. Specifically, these prosecutions occurred after the cisgender women that these men had sex with discovered that those men had been assigned female at birth – information which was not shared with the complainants prior to sexual intimacy. This issue provides broad scope for Sharpe to explore the cis- and heteronormative assumptions that inform the law and our understandings of sexual ethics, the social and legal inequalities that these assumptions create for transgender and gender nonconforming people, and the myriad legal and ethical issues that arise out of such prosecutions.
After neatly introducing the complex themes that the book covers, as well as outlining the development of the category of fraud in sexual offences law and the prosecutions the book discusses, Sharpe details a variety of principled objections to these prosecutions. Sharpe first considers criminal law overreach in these prosecutions, given that each case involved “desire-led intimacy” devoid of coercion. She questions why the right to sexual autonomy for cisgender people in these cases becomes non-negotiable and trumps any right to privacy that transgender people may desire (particularly given that disclosures of one’s gender history can lead to considerable risk for them). Highlighting further the cisnormative assumptions underpinning these prosecutions, Sharpe asks why it is only transgender people who are assumed to have a gender history that bears on issues of sexual consent (after all, cisgender people may have been a “tomboy” or “sissy” in their past). Such a stark illustration forces us to consider the role gender plays in debates around sexual consent (discussed further below).
Sharpe then examines how questions around harm and deception also lead to principled objections to these prosecutions. While these prosecutions proceeded on the basis that harm had occurred, Sharpe points out that, “… where a complainant acted on desire, derived pleasure from intimacy, and where desire, though disavowed, persisted beyond the moment of “discovery,” it seems misplaced to describe the experience as harmful” (p. 89). As she argues, the harm in these cases seems to be to the complainant’s own self-identity – that is, what their ongoing attraction to the person, or the pleasure they might have derived from intimacy, says about their own sexuality. Moreover, these cases take little account of the harm that may be experienced by transgender people and which they are trying to navigate, such as that which may follow disclosures of their gender history. In effect, Sharpe is arguing that nondisclosures of gender history ought to be understood as issues of privacy and safety for transgender people, as opposed to instances of deception and thus culpability.
Sharpe then moves on to build the legal and moral arguments for not prosecuting these cases. While discussing the application of the law to the specific details of the prosecuted cases, the issues that Sharpe canvasses – the positioning of complainant’s accounts as more credible than those of the transgender defendant’s; the debate over whether, for the purposes of determining legal liability, nondisclosure of gender history is a deceptive act or simply an omission; the context of homophobia and transphobia that shape guilty pleas – clearly demonstrate the cisnormativity (and heteronormativity) of the law, not only as they appear in these cases but more broadly. Most interesting is the discussion of the complainant’s apparent ignorance regarding the gender history of the defendants which, according to the facts in these cases, often beggar belief. Sharpe’s use of Eve Kosofsky Sedgwick’s work on the privileges and power attached to unknowing, and the labour involved in this apparent ignorance, is instructive.
In her consideration of the moral arguments against prosecuting these cases, Sharpe offers a consequentialist position relating to sexual ethics, specifically focused on the ethics of withholding personal information and a consideration of what legitimate ethical expectations one might hold regarding the disclosure of an intimate partner’s gender history. Building on the earlier discussion of privacy, Sharpe argues that there ought not to be a duty to disclose one’s gender history, given the connection between privacy and safety for transgender people. Sharpe also subjects the cisgender person’s “demand to know” to critical scrutiny, challenging any supposed obligation that transgender people must disclose their gender history. Despite what complainants and the law might assume, there is, after all, no gap between the transgender person’s gender and the identity that cisgender people in these cases have assumed. According to Sharpe, suggesting that transgender people (and only transgender people, not cisgender people) are obliged to disclose their gender history (or whatever other relevant personal information) – and in effect enforcing this obligation through these prosecutions – merely institutionalises “outing” and maintains the power of cisgender people to arbitrate gender norms at a societal level and define the “true” gender of specific transgender people at an individual level.
The book concludes with a unique exercise wherein Sharpe offers a queer rewriting of the judgement in one of the cases discussed to mobilise the very tools of the law in its own subversion. Doing so convincingly shows the ways that queer people can be read into the law – specifically by “…[writing] into legal existence transgender and other gender non-conforming people in a manner that qualifies their knowledge and experience as legitimate” (p. 160). This allows Sharpe to neatly tie the key issues of the book together and to highlight how the law can, in fact, respond to these cases along the lines of the legal and ethical approaches that she outlines.
While Sharpe’s analysis canvasses many issues of interest to criminologists, including carceral feminism, the inequitable application of criminal law, and the ethical issues discussed above, criminologists will perhaps find Sharpe’s queer reading of consent in this context most interesting. She challenges what she terms an absolutist approach to sexual autonomy. While supportive of broader moves in criminal law to treat sexual assault seriously, Sharpe remains concerned about the ways that the framing and application of the law here reinforces a punitive state which unjustly prosecutes transgender people and does so, not to protect people from coerced sex, but rather in the service of shoring up gender norms and compulsory heterosexuality. Key to this argument is the fact that sexual intimacy in these cases was not coerced but based on desire, and that the “harm” that occurred is linked to the complainants’ sense of self-identity. The claim that they are harmed shores up their heterosexual identity against its potential “undoing” after pleasurable sexual intimacy with someone who was assigned the same sex as they were at birth. But whether this is a harm that warrants the punitive and criminalising intervention of the state and whether complainant ignorance is grounds to suggest that consent was not granted warrant serious consideration. Sharpe asks why gender is important in considerations of consent, when other questions do not get asked, and why serious omissions or deceptions which may bear on consent in important ways, such as a person’s sexual assault or other criminal history, are not prosecuted. The outsize attention paid to gender as a basis for such prosecutions when these prosecutions would not proceed in other contexts is highlighted through a hypothetical that Sharpe offers. As she points out, a prosecution would unlikely proceed in a case where, for example, a white woman sought the prosecution of a mixed-race man who did not disclose his race prior to sexual intimacy. In fact, some would argue that such a prosecution would enshrine racism within the law. While debates about what information is relevant and what is trivial in determining consent always rely on subjective determinations, Sharpe’s analysis highlights that such determinations are always framed through cis- and heteronormative lenses which subsequently produce legal and social injustice.
Sharpe’s rigorous analysis of these issues provides an important intervention into these debates and contributes significantly to the queering of the law and criminal justice. From identifying the short shrift given within the law to the realities faced by transgender people to considering the numerous ways that transgender lives are made legally and socially incoherent, the book highlights the urgent need for the law to adopt a more complex understanding of, and response to, gender diversity. Sharpe suggests that only through thinking differently about sexual consent and sexual ethics – particularly by recognising cisgender privilege and fostering greater reflexivity and openness to difference – can change occur. Sharpe is to be commended for these challenges to legal and social orthodoxies and for opening new avenues through which queer theory, law, and criminal justice can be drawn together to achieve social justice.