Lesbian Genderplay, Transmen, Deception and Consent

March 22, 2016 in General

At a time when New Zealand gay men are fighting to have consensual gay sexual ‘criminal offence’ records struck off, there is some intriguing news from the United Kingdom about the current murky lines related to lesbianism, gender identity, ‘deception’ and consent.

In Diva (April 2016), Deborah Mallon analyses the comparative cases of R v Gayle Newland (aka Kyle Fortune) and R v Kyrian Lee (Mason) , both of which occurred in 2015. Newland posed as a man, was reportedly not experiencing gender dysphoria, and had ‘deceptive’ sex with a female sexual partner, who later found out. Newland was found guilty of non-consensual sex under Section 2 of the UK Sexual Offences Act 2003 and sentenced to eight years imprisonment. She carried out this subterfuge through insisting her partner/the complainant wore a blindfold to avoid seeing her breast binder and strap on apparatus. By contrast, Lee was experiencing bona fide gender dysphoria and had been preparing for gender reassignment surgery with a body suit and strap on. Both Newland and Lee were charged under Section 2, which refers to non-consensual penetrative sex. The case law is supposed to reflect consent, freedom to do so, as well as the capacity to do so. Whereas Newland got an eight year sentence, however, Lee got a two year suspended sentence.

In Lee’s case, Justice Michael Heath accepted that Lee’s gender dysphoria was a bona fide diagnosis and pertinent to the details. Moreover, in Lee’s case, the complainant had initiated sex with Lee, who had furthermore plead guilty in this context, all of which acted as mitigating factors. In Newland’s case, the outcome was far more controversial, as presiding Justice Roger Dutton had sentenced a pedophile who had had sex with several thirteen year old girls to four years imprisonment earlier, as the Liverpool Echo observed- half the duration for a far more questionable context. Was Dutton motivated by anti-lesbianism in his sentencing? Was the complainant really vulnerable, experiencing psychological harm and the target of planned deceptive sexual encounters and an abuse of trust? Mellon compares this to another case, R v McNally (2013), in which another transperson was sentenced to nine years imprisonment, in apparent violation of Crown Prosecution Service guidelines on sentencing and gender identity. So, does deception invalidate consent? Not in the case of R v EB (2006), where an HIV+ person didn’t disclose their HIV status to a sexual partner. Mallon also questions whether this all violates the premises of Gender Recognition Certificates under the UK Gender Recognition Act 2004, the UK Human Rights Act 1998 Right to Privacy and Family Life and other litigation. This whole situation appears to have opened a can of contradictory legal worms. Granted, it’s great that transpeople are being treated with appropriate informed judicial and professional practice, but should it be at the cost of criminalising lesbian gender play?

Source: Deborah Mallon: “The Law, Sexuality, Gender and Consent” Diva (April 2016): 52-54.

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