In recent years, the UK has witnessed a series of sexual offence prosecutions brought against young LGBT people (all of whom were designated female at birth) on the basis of so-called ‘gender fraud’ (R v Gemma Barker [2012] unrep; R v Chris Wilson [2013] unrep; R v Justine McNally [2013] EWCA Crim 1051; R v Gayle Newland [2015] unrep; R v Kyran Lee (Mason) [2015] unrep; R v Jason Staines [2016] unrep). All of the defendants have been convicted, most have received custodial sentences, and all have been placed on the Sex Offenders Register. For some, these developments represent a spectacular example of criminal law overreach, for others convictions are entirely in accord with respect for the sexual autonomy of female complainants. A conversation about these issues will require us to think seriously about three key philosophical and criminal law concepts: consent, harm and deception.

In relation to consent, we might ask: what does it means to deny its presence in the context of desire-led intimacy? If consent must be ‘informed,’ how transparent to the world must sexual partners be, and at what cost? And, in the specific context of ‘gender fraud,’ are we dealing with ‘wilful blindness’ on the part of complainants? While such a question might constitute feminist heresy, is it nevertheless, one essential to ask if cisgender people are to check their privilege? Turning to harm, how elastic should this concept be? Does it properly describe pleasurable sexual acts retrospectively reimagined? And is it possible to think about complainant harm separate from hetero and cisnormativity? And, if not, what implications might this have for (feminist) resort to a punitive state? Finally, what does deception mean in the context of cis-trans intimate relations? Should there be an obligation to disclose information prior to intimacy or should our ethical response be to scrutinise a cisgender demand to know? After all, is the demand to know a trans person’s gender history really about knowledge or is it about the power to define a person’s gender identity, and against their will? In the end, a conversation about the concepts of consent (sexual autonomy), harm and deception may need to be supplemented by the concepts of epistemology, ontology and power. 

Alex Sharpe is a Law Professor and trans woman working at Keele University in the UK. She is a socio-legal theorist, legal historian and gender, sexuality and law scholar and activist. She has been writing about transgender/law issues for over twenty years and is the author of over 50 publications on the subject including her monograph, Transgender Jurisprudence: Dysphoric Bodies of Law (Cavendish, 2002). In terms of trans activism and law reform, she regularly provides advice to government departments, members of parliament, law firms, public interest advocacy organisations, and has been cited judicially in the UK, Australia, Hong Kong, the United States, and by the European Court of Human Rights.

In 2010 she published her second monograph, Foucault’s Monsters and the Challenge of Law (Routledge) which followed a series of earlier publications on the subject of Monsters. In theoretical terms, this book represents a shift from the particular (Trans) to the general (Monster) in trying to understand how outsiders are legally and culturally produced and regulated through time. The monster might be viewed as the outsider par excellence. It is this theme of the outsider that connects Alex’s various academic projects and political interventions. Her body of work can be thought of as a kind of outsider jurisprudence.