Does gender matter when it comes to sexual consent?

A teen is jailed and registered as a sex offender for having sex with a female peer while "pretending" to be a boy

By Tracy Clark-Flory
July 7, 2013 2:30AM (UTC)
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(Alexander Raths via Shutterstock)

The young relationship started as so many do these days -- online. Thirteen-year-old “Scott” and 12-year-old “M” developed a friendship that over the course of three years and many instant message conversations, bloomed into romance. M began calling Scott her boyfriend -- they even talked about getting married and having kids. After M’s 16th birthday, Scott, then 17, traveled from his home in Scotland to visit her in England. They watched a movie, kissed and, before long, things went further.

It may sound like a sweet story of teenage love -- but Scott was sentenced by a court in England to three years in prison and ordered to register as a sex offender for life as a result of the relationship. That’s because Scott was born Justine McNally and assigned at birth as female. In an appeal of McNally’s sentence, which was made public late last week, a U.K. court reduced McNally’s sentence but affirmed that the 18-year-old had violated M’s sexual consent by presenting as male. It was deemed a "deception" and "abuse of trust."


I’ll be referring to McNally as female from here on out because that appears to be how she currently identifies. As the court ruling put it, though, she had a history of “self-harm” and “confusion surrounding her gender identity and sexuality.” McNally also told police that she took on the identity of Scott online -- at the pivotal age of 13 -- “because it made her more comfortable,” according to the ruling. Regardless of how McNally identifies, this case could be significant for those who identify as transgender -- as well as those who are exploring their gender and sexuality. That's because it sets a possible precedent in the U.K. for prosecuting people for failing to announce before a sexual encounter the gender they were assigned at birth.

Matt Kailey, author of "Just Add Hormones: An Insider’s Guide to the Transsexual Experience," points out the potential challenges that could arise. He asks, "What happens if a person who does not identify as 'trans' in any way is accused of being so ... because his penis is too small for his sexual partner's tastes or her breasts are too small or not the right shape for her sexual partner's tastes? What about a person whose genitals do not meet the 'standard' appearance that society expects for male and female genitalia?"

This case also brings up dystopian images of couples breaking out pre-coital legal contracts that map out their every sequence of DNA. Jennifer Finney Boylan, a director of GLAAD, tells me, “What else do people want before falling in love, a birth certificate and a set of fingerprints?"


Previous U.K. cases have found that concealing one's marital status, wealth, age or HIV diagnosis from a sexual partner does not invalidate consent. “It is unclear why being trans would be singled out as an exception to this, other than blatant societal transphobia," says  Julia Serano, author of "Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity" -- or homophobia. As Jane Fae wrote in the NewStatesman: “The only thing that really seems to vex this bunch of middle-aged blokes is being misled over gender, which must raise questions as to why such fears," she writes of the recent ruling. "Is this, as they remark, merely 'a broad commonsense way' to deal with 'evidence relating to "choice" and the "freedom" to make any particular choice.' Or is it delicately muffled -- and bewigged -- homophobia?” (She also wrote that "the law in relation to intimate consent" is "an unholy heteronormative, patriarchally-inspired man-protecting mess.")

One of the main problems that trans activists have with this recent ruling is that it doesn't make a distinction between someone who is willfully posing as the opposite sex in order to maliciously trick someone -- which happens when, aside from in "Mrs. Doubtfire"? -- and someone who is presenting as the gender with which they identify. “Many trans people reject the gender we were non-consensually assigned at birth, and instead identify and live as members of the other gender. While we may be living our lives honestly in our identified gender, people often mischaracterize that gender as 'fake' and view our birth-assigned gender as 'real,'" says Serano.

Mara Keisling, executive director of the National Center for Transgender Equality, agrees. "Everywhere is different but one thing that is consistent from place to place, this really, really unfair old prejudice and stereotype that trans people are somehow trying to fake somebody out," she says.


None of this is to say that the trans community has any one stance on disclosure. “Trans people differ on this," says Serano. "Many trans people are out about being trans and share that information with partners. Other trans people view their birth-assigned gender as a birth defect or a medical condition that has since been corrected, and in their eyes, their trans history is unimportant or a thing of the past." She adds, "We also live in an extremely transphobic world, so many trans people do not feel safe letting anyone know about their trans history, partners or otherwise."

Indeed, trans people have been attacked and killed when their identity is revealed. “I know that many people who aren't trans presume that we should have to disclose our trans history, but why is all the onus on us?" asks Serano. "Why shouldn't they have to disclose whether or not they are transphobic before having sex?" Similarly, Boyan argues, "The fault lies not with trans people in choosing not to share their history,” she says. "It lies in the hearts of those who would judge us by our past, or our chromosomes, or any other invisible hobgoblins used to cruelly judge a human character.”


Jamison Green, who does education and policy consulting on trans issues, is hesitant to classify this as a "trans-specific case" -- after all,  McNally has never identified herself that way. Still, Green believes that "it’s way over-reacting to take young people to criminal court for being gender-variant and trying to understand how they fit in the world."

McNally is out of prison now, thanks to her reduced sentence. But many activists wonder what this case will mean for the future of trans rights. LGBT activist Meghan Stabler is especially sympathetic to young people who are still experimenting and figuring themselves out. "[This is someone] at a young age who is trying to identify sexually, trying to find love because they've probably had a ton of rejection in their life," she says. "They’re just looking to be loved for who they are."

Tracy Clark-Flory

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