Scottish court prosecuting trans people for having sex without stating their gender history is undermining rights and isolating people
Since learning of the case against Chris Wilson last week the Scottish Transgender Alliance and trans people generally have become increasingly concerned of the impact it may have on the criminal law as it applies to trans people in Scotland.
Chris pled guilty to two charges of ‘obtaining sexual intimacy by fraud’ for ‘deceiving’ sexual partners by telling them he was male when his birth certificate says female.
In bringing these charges the message the Crown Office and Procurator Fiscal Service (COPFS) has sent to trans people, whether intentionally or not, is we will criminalize you if you fail to disclose your gender history to sexual partners. Or put more bluntly, when it comes to sex you have no right to privacy.
There are other factors involved in this particular case. Chris lied about his age claiming to be 17 when he was 21, and the two young women involved were only 15, although one had claimed to be 16. However, he was not charged with any offences relating to sexual activity with people below the age of 16. The only charge that the Procurator Fiscal could find to bring against him was ‘obtaining sexual intimacy by fraud’. Because in their eyes Chris had ‘lied’ about his gender.
Which begs the question, if he had presented in accordance with his birth assigned sex, female, would he be in the position he is in now, on the sex offenders register and facing prison? Or for that matter if his birth assigned sex matched his gender identity, male?
After a fairly comprehensive search on Westlaw, the largest directory of court cases on the web, we could find no other cases where the charge was ‘obtaining sexual intimacy by fraud’. In a similar case, a 31-year-old man had sex with a 14 year old girl. He was prosecuted, as you would expect, for having sex with an underage girl. The trial was heard at the Sheriff Court and the sentence was 240 hours of community service. Chris’s case was heard at the High Court, reserved for the most serious cases, and where the Judge can impose an unlimited jail sentence.
It seems to us, and to the numerous fraught trans people who have contacted us since this case came to light, that Chris is being treated in this way because he is trans. And he is trans. He has the protected characteristic of gender reassignment. He may not have been undergoing medical treatment at the time of the ‘offence’. Probably because he didn’t even know other trans people existed until last week when Grampian TFolk, a local trans group got in touch to offer him support. But he identifies and presents as male, and has done since a young age.
This leads to the question which many commentators have asked: shouldn’t a trans person have to disclose the fact they are trans before sleeping with someone?
We find this question easiest to answer with a host of other questions: should a non-trans person have to disclose before sex that they have a medical condition? Or are married? Or voted Conservative? Do potential partners have a legal right to know that you are in debt? Or have an extensive sexual history? Or have been convicted of rape?
These may all be questions of personal morality and may all lead people to feel extremely distressed if they are disclosed after sex. But it is certainly not criminal to sleep with someone without revealing such information.
Criminalizing trans people for withholding information about their gender history is just as absurd. It would be unacceptable to criminalize trans people for simply living in accordance with their gender identity and not revealing this private information to a sexual partner. You don’t give up your right to privacy if you’re trans and want to have a sex life.
And if it were criminal, where would the line be drawn? Would this obligation only exist when the person’s physical body isn’t what you’d typically expect of a person of their gender identity? Does it stop being a shocking revelation after that? Or do trans people have to discuss the intricacies of their medical history with all potential partners for the rest of their lives?
Deciding when to disclose the fact you are trans can be an extremely difficult decision to make. It is an intensely personal decision and brings with it the fear of rejection, prejudice, and even of facing sexual and physical assault. It is not a decision trans people should be forced into under threat of being sent to prison.
Scottish public bodies should be upholding the equality and human rights of people with the protected characteristic of gender reassignment, not placing them into the state of severe fear and alarm they are now in. Worried that they risk imprisonment simply for non-disclosure of their gender reassignment status to sexual partners.
This case has seriously undermined many people’s trust in Scotland’s criminal justice system. The Scottish Transgender Alliance has written to the Lord Advocate expressing our extreme concern. Our petition calling on COPFS to urgently work with trans equality organisations to address the concerns of trans people has accumulated 1,000 signatures since it was launched on Saturday. You can sign it here.
Do trans people have a right to privacy in Scotland? For now at least, the answer to that question remains unknown.
Nathan Gale is a development worker at the Scottish Transgender Alliance.