Abstract
In 2013, Justine McNally pled guilty to six counts of assault by penetration under the Sexual Offences Act 2003 for gender identity fraud during sexual intimacy and was sentenced to three years’ imprisonment. At the time of the alleged offences, complainant ‘M’ had consented to heterosexual relations with McNally as a supposed cis man, while the court had found McNally to be female (McNally, currently, presents and identifies as a woman).
It is cases like R v McNally that Alex Sharpe examines in Sexual Intimacy and Gender Identity ‘Fraud’: Reframing the Legal & Ethical Debate. Sharpe, a Professor of Law at Keele University, UK and Barrister at Garden Court Chambers, London, develops a queer critique of the new legal category of gender identity fraud within UK law. Gender identity fraud, a subset of sexual fraud, is applied to cases involving a complainant alleging that their sexual partner deceived them in terms of their gender identity. Yet, while in theory this could encompass all kinds of gendered deception, it does not do so in practice. Rather, prosecutions of gender identity fraud have been limited to defendants assigned female at birth, are youth, and identify, present, or are questioned as transgender or gender non-conforming. As such, Sharpe contends that the criminalization of gender identity fraud is criminal law overreach of conduct that is not morally objectionable in the first place.
The book is organized in four parts – preliminaries, principals, practices, and praxis – to build upon the triangulation of three related themes – consent, harm, and deception. Chapters 1 and 2 provide an overview of the developing law of sexual and gender identity fraud. Sharpe contends that fraud laws came into existence in part due to carceral feminist reliance on criminal law to provide women with sexual autonomy. And yet, the problem is the assumption that others’ right to know information regarding their partner’s gender identity or history trumps one’s right to privacy. Consequently, by requiring trans defendants to disclose their gender history, it becomes inconceivable that a cisgender woman would knowingly become intimate with a transgender man, and therefore a transgender man could not reasonably believe in the presence of consent.
Chapters 3 and 4 theorize the substantial counterarguments to gender identity fraud. To determine liability, the courts have relied on the differentiation between active deception and mere non-disclosure. Proving fraud cases relies on the materiality of facts, and yet the legal determinations of such facts, and therefore the boundaries of non-consent and deception, are prosecuted inconsistently and discriminatorily. Gender identity, and transgender/gender non-conformity more specifically, has been the only identity group to be prosecuted as opposed to race, ability, sexual orientation, religion, HIV status, political opinions or other factors that could also impact one’s consent. As a result, the decision to prosecute fails to consider other important rights – the privacy and safety of gender non-conforming individuals – wherein disclosure may expose them to heightened risk of harm. Therefore, Sharpe argues that deception is not a neutral category; gender identity claims are authentic, and fraud persecution falls short of ameliorating transphobia.
Building upon these objections, Sharpe addresses the decision to prosecute, the question of plea, and the application of the law by approaching the question, ‘Do transgender people have an ethical obligation to disclose the truth about their gender identity’ (p. 133)? In asking this, Sharpe points to the ways in which a guilty plea does not actually equate an offence in the law. Rather, to plead guilty performatively produces a guilty subject by requiring complicity to one’s undoing within the dominant cultural narrative that equates transgender with artifice and deception. As a result, she shifts our focus to the social construction of not only trans, but also cisgender and the ethics of selfhood, preservation of self, and privacy. Ultimately, she calls for the ethical gendering of cisgender people by recognizing cisgender privilege and self-examining anxieties surrounding trans people. Finally, Sharpe illustrates how gender identity fraud cases could and should be decided differently through rewriting an alternative counter-judgement handed down in the McNally case from a queer legal theory perspective in chapter 7.
Overall, Sharpe offers an elaborate critique of present law as it consequentially targets vulnerable portions of the population. While the text is, at times, repetitive, Sharpe does so in order to show how these three themes of consent, deception and harm cannot be separated and to emphasize their importance. In what should be required reading for law students as well as those in Sociology, Political Science, and Women’s and Gender Studies, this text is both timely and imperative to current transgender rights issues both in the UK and internationally. As Sharpe states, ‘What is at stake are the proper boundaries of “authentic” and legitimate sexuality and masculinity, as well as who has the interpretive power to decide such questions’ (p. 7).