Coinciding with the publication of her latest book, Sexual Intimacy and Gender Identity 'Fraud': Reframing the Legal and Ethical Debate, our Q&A with Routledge author Alex Sharpe explores sexual offence prosecutions brought against young, gender non-conforming people for so-called ‘gender identity fraud'.
Professor Alex Sharpe is a Law Professor at Keele University and a human rights barrister at Garden Court Chambers, London. She is a social and legal theorist, legal historian, and gender, sexuality & law scholar.
She has been cited by the European Court of Human Rights as well as by a series of courts in domestic jurisdictions. She sits on the International Legal Committee of the World Professional Association of Transgender Health and has sat on Amnesty International’s Expert Committee on the Criminalisation of Sexual and Reproductive Conduct.
Sexual Intimacy and Gender Identity ‘Fraud’: Reframing the Legal & Ethical Debate, which she researched and wrote with the assistance of a Leverhulme Trust Fellowship, is her third monograph. Her two previous books are, Transgender Jurisprudence: Dysphoric Bodies of Law (2002) and Foucault’s Monsters and the Challenge of Law (2010).
In 2012, 17 year old Gemma Barker was convicted of sexual offences on the basis that she failed to disclose her gender identity to female complainants prior to sexual intimacies. She was sentenced to two and a half years in prison and placed on the Sex Offenders Register for life. This was the second case of its kind in the UK. The first was prosecuted over 20 years earlier (R v Jennifer Saunders  unrep). However, unlike the Saunders case, Barker proved to be the beginning of a disturbing pattern of successful prosecutions. In 2013, convictions were sustained against Chris Wilson in Edinburgh and Justine McNally in London. In 2015, Gayle Newland and Kyran Lee were convicted in Chester and Lincoln respectively, and in 2016, Jason Staines was convicted in Bristol. Most recently, in 2017, Gayle Newland was reconvicted in Manchester after the Court of Appeal found her original conviction unsafe and ordered a retrial.
Prior to Barker’s conviction, I had already been researching the legal requirement placed on transgender people to disclose their gender histories prior to marriage, lest the marriage be declared a nullity (see, for example, my article in the Modern Law Review (2012) 75(1) 33-53). With the Barker case, the stakes had suddenly been raised for transgender and other gender non-conforming people. I was shocked that these kinds of prosecutions were being brought and after the 2013 cases decided to write this book both as a critical analysis of the issues involved and as a political intervention. The book is resolutely against prosecution.
To my mind, these prosecutions are not only counter-intuitive, but contrary to basic liberal principles and the rule of law. In the book, I oppose prosecutions for a series of reasons. I argue, amongst other things, that they represent criminal law overreach, take sexual autonomy too seriously, demonstrate legal inconsistency, are discriminatory, and fail to consider adequately other rights and interests.
My opposition to prosecution is also founded on arguments derived from poststructural feminism and queer theory. Here I offer a critique of the criminal law and philosophical concepts of consent, harm and deception. Thus I take seriously ‘apparent’ consent. After all, in the context of desire-led intimacy, it is surely spurious to deny desire for the masculinity or femininity on offer. In this respect, the book foregrounds the concept of agency, and highlights the inadequacy of some strains of feminism.
In relation to harm, I consider what is at stake for both parties to desire, not merely complainants, while also asking after the sources of harm. For it seems inescapable that ‘harms’ cisgender people experience are inextricably connected to cisnormative ideology. It is, I argue, precisely this ideology that renders transgender and other gender non-conforming people deceptive, their deception being an effect of cisnormative privilege and power, through which ontologies and epistemologies are constituted.
I think the answer to this question is complex and requires further socio-legal and empirical investigation. First, it should be noted that there have been a few cases of this kind in the United States and in Israel, which are discussed in the book. What unites these various jurisdictions is a common law legal system. Beyond this, at least in the UK context, I think two factors present themselves. First, there has been a turning to the state by what has been described as ‘carceral’ or ‘governance’ feminism. As part of this development, the notion of sexual autonomy has assumed a more absolute mantle. Dovetailing with this is what can be described as the Savile moment. In fact, the UK cases might be viewed as having been ushered in by Savile and the moral panic that has been generated around this particular serial sex offender. In the wake of Savile, and increasingly policing kinds of feminism, it is perhaps less surprising that the state has focused on people at the gender and sexual margins.
There are many misconceptions that abound in this area. The most fundamental one lies in the belief that there is something intrinsically deceptive or inauthentic about transgender or other gender non-conforming people. Relatedly, there exists a widespread, though mistaken, and in my opinion ethically suspect, view that cisgender people have a right to know other people’s gender histories prior to intimacy. These assumptions are ones which the book takes to task.
Yes. From the point of view of lawyers and activists, legal judgments in this area can seem ironclad and the position of transgender and other gender non-conforming people hopeless. I address the theme of resistance more generally in the book. Here however, I want to emphasise that, in chapter 7, I provide a counter-judgement to the leading judgment in the area, the judgment of Leveson LJ in R v McNally  EWCA 1051. Here, drawing on feminist judgments projects, I present a queer judgment, one that centres the experiences and perspectives of transgender and other gender non-conforming people, and crucially, one that could actually have been written by the Court of Appeal at the time, bearing in mind constraints of precedent, judicial custom and usage.
I am currently working on a very different project about the legal category and social theory template, Monster which will be brought to life through the sublime example of David Bowie. For an initial foray see ‘Scary Monsters: the hopeful undecidability of David Bowie’ (2017) 11 Law and Humanities 228-244.
This book is a legal and political intervention into a contemporary debate concerning the appropriateness of sexual offence prosecutions brought against young gender non-conforming people for so-called ‘gender identity fraud'. It comes down squarely against prosecution. To that end, it offers a…
Hardback – 2018-02-20
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Hardback – 2009-12-15
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“This book might be difficult reading for those who think that the truth about one’s gender is a core matter upon which sexual consent is contingent. It will undoubtedly also be considered provocative by those who (rightly) call for sexual assault to be taken more seriously by the criminal law. However, through principled, pragmatic, public interest and rights based arguments, Sharpe makes a persuasive case against the use of state power in this context, and exhorts us to rebalance the ethical burdens imposed upon gender non-conforming individuals. It is not only a rigorous, innovative and comprehensive analysis, but as all pioneering work should be, challenging, stimulating and passionate.”
- Sharon Cowan, Professor of Feminist and Queer Legal Studies, Edinburgh University