The Court of Appeal on 27th June 2013 issued the written judgement on why it reduced the sentence on Justine McNally, but did not doubt the soundness of the original conviction. Already there are social media murmurings of this meaning that trans people who are not open about their status cannot have sex without breaking the law. This is because Justine’s conviction was for obtaining consent to sex by deception about her true gender. Not only is this a misrepresentation of what the judgement says, but it is a dangerous misrepresentation, causing needless concern to trans people. Yet an early response to the judgement that is doing the social media rounds paints an alarming picture with the headline “Court of Appeal Confirms: Stealth Trans People Having Sex Are Criminals.” Fortunately for trans people living in stealth (i.e., not wanting to tell intimate partners about their biological history), the judgement said nothing that could justify Zoe O’Connell using such a title for her hasty response. In my equally hasty response to her response, the numbers in square brackets refer to the numbered paragraphs of the Court of Appeal’s written judgement.
When this case was first making waves at the time of Justine’s conviction (21st March 2013), there was little information about the case to go on, but a widespread assumption that it concerned a trans man called Scott Hill. We now have much more detail about the case, thanks to this judgement being made public. Two matters need to be highlighted to show that there is no need for panic among sexually active trans people. Firstly, even if Justine identified as a trans man at the time of the offence, she did not do so at the time of the trial, as her witness statement admitted to deceiving the victim into thinking that she was consenting to sex with a boy called Scott Hill . She had some on-going but diminishing gender identity issues, as noted by a pre-sentencing report . Secondly, the appeal was not made on the grounds that Justine was trans, but that deceiving her victim about her gender did not invalidate the consensual nature of the sexual intercourse . Those two factors should throw an immediate fire blanket over the claims in social media that the judgement criminalises sexually active trans people who are in stealth. Unfortunately, Zoe had already fanned the flames before someone thought to fetch the blanket, by reading what was not there into the judgment.
Zoe asserts that the judgement denies that hiding HIV infection is deceit, but asserts that hiding your gender is deceitful. In fact, the judgement states that in certain circumstances hiding your HIV status is sufficiently deceitful to vitiate consent , and that, again only in certain cases, hiding your gender can also vitiate consent . In other words, the justices determined that there was an equivalency in consent law between HIV and gender, but only in the sense that each must be judged on the merits of the individual case. So there are no grounds to the fear that Zoe voiced in her opening paragraph, namely that the Court of Appeal was establishing (trans specific) case law. In order for case law to be created, the justices would have to establish a point of law, and that is precisely what they refused to do in relation to gender deception. Their judgment was based on the matter of the case at hand because they rejected the arguments of Justine’s legal team that there were any points of law that would invalidate her guilty plea . They also rejected the claim that she was poorly advised in making that plea , although, of course, that it is not a point of law. The only point of law to come out of the judgement concerns the sentence. The justices determined that the crime of a breach of trust can only refer to someone in a professional place of trust (teacher, doctor, etc.), and therefore reduced Justine’s sentence as it was based on the wrong sentencing guidelines. That, however, is not a trans specific issue, but one that would relate to anyone accused under the Sexual Offences Act 2003.
So there is nothing in this written judgment that would impact negatively on the legal right of trans people to keep their biological history secret from sexual partners.
© Mercia McMahon 2013