What the UK Gender Fraud Cases Might Tell Us About Gender Certification

By Nina Bresser

Over the last four years five trans men in the UK have been convicted of ‘gender fraud’ (respectively R v Barker [2012]; R v McNally [2013]; R v Wilson [2013]; R v Newland [2015]; R v Lee (Mason) [2015]). [1] All five individuals were charged with sexual assault by their cis heterosexual female partners, who claim to have found out about their partners’ trans status after engaging in sexual intercourse.[2] The persecutors claimed to have been falsely lured into sexual acts they did not want to engage in. All defendants pleaded guilty. Without going into detail about any of the specific cases here, my aim in this short intervention is to question what it means from a legal perspective to persecute based on the charge of withholding information about one’s physical body or bodily history from sexual partners, affectively turning certain gendered identities and sexualities into a private property that needs to be defended by the state.[3]

The gender fraud cases are interesting for various reasons. First of all, the legal narrative that is pursued in the course of convicting these trans men—namely the idea that their male identities are fraudulent—seems to be in conflict with the UK’s 2004 Gender Recognition Act, which no longer requires trans people to surgically modify their bodies in order to be seen as belonging to the gender category that matches their personal identification.[4] Importantly, it must be noted that the defendants did not possess any legal documentation—such as the UK’s Gender Recognition Certificate.[5] As social and legal theorist Alex Sharpe points out, the fact that the individuals concerned did not take (sufficient) steps to get their gender identity recognized by the state was partly responsible for their conviction and seen as evidence of their supposed ‘gender fraud.’[6] This highlights the idea ‘that transgender people’s assertions of gender identity are always suspect, and require authentication.’[7] I would add here that if the UK’s Gender Recognition Act is ultimately based on the idea that physicality does not determine identity (sex reassignment surgery is no longer a pre-condition), and that gender identity as such may not always follow binary patterns, this belief apparently does not exceed the state’s administration: when presented with an unauthorized yet lived reality to which such laws presumably correspond, the state apparently does not grant such identities any inherent value.[8] This might lead us to belief the state’s progressive laws regarding non-binary sexed/gendered embodiments might be aimed more at administratively encompassing and controlling such lived realities, rather than presenting a sincere shift in mentality.

Secondly, the gender fraud phenomenon demonstrates the government’s prevailing adherence to cis and heterosexual privilege. As noted above, the gender fraud cases were all based on the charge of sexual assault. In other words: the seeming contradiction in UK legislation outlined above occurs only—at least with regard to the notion of gender fraud as a criminal offence—in the proximity of supposed sexual violence. In all cases, the cis female heterosexual persecutors engaged in sexual intercourse with the defendants out of what can reasonably be expected to have been free will, nor did they object to any activities conducted during the actual event. The complaints were made after intercourse had taken place and the persecutors found out about the defendants’ trans status—which had been previously withheld from them and was concealed during the sexual act. As Sharpe notes, this demonstrates how the government is confronted with a conflicting interest, namely the choice to legally protect a heterosexual cis identity (i.e. the persecutors) or a heterosexual trans identity (i.e. the defendants), in these cases clearly opting in favor of the first group.[9]

From a legal perspective, the idea that someone’s sexuality is a property that should be defended by the authorities—notably, not from physical violence, but from being lured into activity by the ‘wrong’ person—is reasonably odd. There is a myriad of personal issues one would not be legally required to report or be transparent about before engaging in a sexual relationship with another person.[10] The fact that a trans embodiment or bodily history might be one of those would be hard to defend—especially given that the law no longer requires sex reassignment surgery as the precondition for acquiring a legal gender identity. Sharpe adds to this that the narratives provided by the persecutors—namely that they did not know their sexual partners did not have penises, even after having had penetrative sex with them on one or more occasions—would be considered questionable under other circumstances. The overruling factor here seems to be a trans threat to cis-directed heterosexual identity—a threat that the UK government is apparently prepared to fight. As Sharpe puts it, ‘[p]art of the problem with “gender fraud” prosecutions lies in the contrast between state sympathy expressed toward those at the heteronormative centre and state skepticism adopted toward others.’[11]

At this point, the theoretical intervention posed by Davina Cooper and Flora Renz in their article ‘If the State Decertified Gender, What Might Happen to its Meaning and Value?’ (2016) might provide a useful entry point for further analysis of the gender fraud cases.[12] Cooper and Renz describe how gender has come to be seen as a type of personal property that the state then has a responsibility to protect.[13] ‘When do organisational rules and norms that deny or devalue transgendered people’s gender property get recognised and respected by state law?’[14] The gender fraud cases clearly represent such a case, suggested that this happens precisely when cis-directed heterosexuality (something that has traditionally been at the core of governmental control) is presumably under threat.[15] At this point, it is worth quoting the authors at length:

Jennifer Nedelsky suggests a propertied conception of the self gives rise to a subject ‘in need of boundaries to secure it from invasion by others.’ Treating gender identity as a protectable part of the subject also contributes to a territorial imagination as gendered ‘vulnerabilities’ but also gender-based rights and privileges become subject to safeguards as law contributes to protecting, but also to regulating, the scope and limits of one’s identity estate. For instance, does gender identity include specific practices, beliefs or modes of appearance; and does protecting gender identity mean protecting the performance and expression of these also?[16]

When applied to the gender fraud cases, we see indeed how the cis and heterosexual self has become a property whose boundaries are safeguarded by the state, in this case including the protection of a certain expression of heterosexual identity. Heterosexual identity here is articulated as a property that needs to be protected from trans invasion, posing non-cis heterosexuality as fraud or fake. As I noted before, the argument that the defendants withheld information from their sexual partners can only be defended on subjective ethical grounds, as withholding information about one’s physical body during sexual intercourse has never before been a legal issue. When applying the above statement to transgender identity and embodiment, the conclusion in light of the gender fraud cases can only be that the state regulates who can and who cannot be admitted to the legal category of men and women based on physical binary sex—presumably, if indeed the defendants had been in the possession of a penis and the appropriate paperwork, the persecutors would have had no case. As noted before, this conclusion does not hold in the light of the 2004 Gender Recognition Act, which does not require such bodily modifications. Therefore, I suggest it is most plausible that the unwillingness of the defendants to relate their bodily history to their partners might still have been considered fraud if they had indeed met these requirements—ultimately leading to the conclusion that any trans person will be forever disadvantaged in the eyes of the law when persecuted by cis gendered people.

Cooper and Renz propose that it is not the property status of gender per se that is harmful—after all, it is precisely through recognition that people may come to ‘own’ their gender and become entitled to certain rights (whether legally or socially).[17] Rather, they argue, it is the certification structure in which the state gets to determine and guard the borders of that property that causes legal asymmetries between cis and trans people, as the gender fraud cases so painfully demonstrate.[18] Following this line of thought, Cooper and Renz argue that decertifying gender might be an answer to such inequalities:

Thus, one key question is what might happen to these presently evolving social forms if they no longer have to compete for ground with state law’s gender assignment; if the take-up of informal gender identities does not have to confront and work on a terrain of incompatible, already legally gendered subjecthood.[19]

In the case of the abovementioned gender fraud cases, such decertification would most certainly prevent the state from having to defend cis-directed heterosexual identity by drawing conclusions that violate trans heterosexuality, making the matter into a mere ethical issue concerning what one is morally obliged to tell one’s sexual partners about one’s physicality or bodily history.

Let us end by considering the implications that this brief analysis may bring to light with regard to legal innovations aimed at the encompassing of non-normative sex/gender embodiments and identities—such as the potential introduction of the X as a third passport option. The analysis provided above, as well as Cooper and Renz’s argument, suggest that as long as gender is treated as property that needs to be defended by the state—as lays at the base of most contemporary pro-trans legislation—the risk of introducing asymmetries in which cis identities and embodiments are privileged will continue to exist. The gender fraud cases represent an example of how the boundaries set by the state—presumably also meant to protect trans identities—can easily be deployed to undermine the integrity of such lived realities. As Sharpe suggests the defendants were at least partly convicted because of an absence of legal steps taken to support their identities, which were therefore seen as fraudulent. In the absence of such legal support, the state chose to protect the property that was not necessarily more legally admissible—after all, heterosexuality has long been one of many legal options for UK citizens—but traditionally more accepted, thereby appealing to a deeply ingrained cis gendered privilege that precedes 2004 legislation. Following Cooper and Renz’s suggestion, further governmental certification of gender-as-property will thus not necessarily improve trans people’s legal rights. Paradoxically, only when property can be defined outside of governmental structures will the state be able to protect it against violation as it deserves—unprejudiced and outside of endemic cis privilege.

[1] By using the term trans I do not exclusively refer to an explicit transgender or transsexual identification, pointing instead towards the facts that the defendants were male presenting, and that this gender presentation did not follow conventional sex/gender norms. Importantly, at least one of the defendants changed their identification after the trial. In this blog, I will further refer to the defendants as trans men, as my argument is concerned with their identifications and the ways in which they were perceived at the time of the trial and the supposedly committed offense.

[2] Importantly, the cis status of the prosecutors is an assumption, based on the fact that the law cases were grounded in the idea that their heterosexuality had been violated by the defendants’ trans embodiment. It would indeed be possible for the persecutors themselves to have undergone SRS at some point in their lives, but this is a speculation that lies outside the scope of this enquiry.

[3] It is important to note that in the case R v Wilson [2013] the defended was found guilty of engaging in sexual intercourse with two individuals who were below the age of consent. This thus represents a slightly different case, of which the details lie beyond the scope of this small intervention.

[4] ‘Gender Recognition Act 2004’, Legislation.gov.uk, last accessed January 8, 2017, http://www.legislation.gov.uk/ukpga/2004/7/contents.

[5] In order to receive a Gender Recognition Certificate one has to apply to the Gender Recognition Panel. In order to receive such a certificate one has to be diagnosed with gender dysphoria, and have the intention to live in their acquired gender for the rest of their lives. It suffices to say that this application process does not benefit everyone, such as those opposed to the medicalization of trans identifications, or those identifying as genderqueer or gender-neutral. See ‘Apply for a Gender Recognition Certificate,’ Gov.UK, September 23, 2016, last accessed February 6, 2017, https://www.gov.uk/apply-gender-recognition-certificate/overview.

[6] Alex Sharpe, ‘Transgender Inquiry Side-Steps Urgent Issues of “Gender Fraud,”’ Inherently Human: Critical Perspectives on Law, Gender & Sexuality, January 15, 2016, last accessed January 8, 2016, https://inherentlyhuman.wordpress.com/2016/01/15/transgender-inquiry-side-steps-urgent-issue-of-gender-fraud/.

[7] Ibid.

[8] As noted before, the Gender Recognition Certificate still does not recognize non-binary genders. However, as sex reassignment surgery is no longer a pre-condition, this necessarily creates space for the legal existence of embodied subject positions that do not uphold gender norms that correspond seamlessly to the concept of binary sex.

[9] Sharpe, ‘Transgender Inquiry.’

[10] Here one may think of bodily realities and histories tinted by weight or health issues; the surgical modification or otherwise adapted size of body parts; one’s sexual history; or age (if indeed above the threshold of 18).

[11] Sharpe, ‘Transgender Inquiry.’

[12] Davina Cooper and Flora Renz, ‘If the State Decertified Gender, What Might Happen to its Meaning and Value?’, Journal of Law and Society 43, issue 4 (2016): 483-505.

[13] Ibid., 8.

[14] Ibid., 14.

[15] Cf. Hanne Blank, Straight: The Surprisingly Short History of Heterosexuality (Boston: Beacon Press, 2012).

[16] Cooper and Renz, ‘If the State Decertified Gender,’ 10-11.

[17] Ibid., 12.

[18] Ibid., 23.

[19] Ibid., 24.