Tag: sexual offences

Response by Legal Feminist to Consultation on the Deception as to Gender section in the Rape and Serious Sexual Offences (RASSO) legal guidance

Written by a multidisciplinary team of feminist lawyers headed up by Sarah Vine KC

INTRODUCTION

  1. The existing legal framework in respect of consent obtained by deception establishes two authoritative positions:

 (i)       Where consent to a sexual act has been obtained by a deliberate deception as to a matter sufficiently proximate to the nature or purpose of that act, that consent may be vitiated; and

 (ii)      The fact of a sexual partner’s biological sex is so fundamental to the freedom and capacity of a person to agree to sexual activity[1] that a deliberate and operative deception as to biological sex is capable of vitiating consent.[2]

2.         The CPS is a creature of statute. It has no function other than to uphold the law by prosecuting criminal offences as stipulated in the Prosecution of Offences Act 1985. The CPS is a public authority which must operate within the law, and it has a duty to act in compliance with the European Convention of Human Rights[3]. It has no power to create or change the law.     

3.         The CPS may adopt policies to ensure that its charging decisions are consistent with the relevant rights engaged. In the context of this consultation, the relevant rights are those under Articles 3, 6, 7, 8 and 14 ECHR. Policies must operate within the confines of the existing law; the CPS cannot make or change the law through its policies.    

4.         The current CPS charging policy is irrational and unlawful. The proposed changes exacerbate these faults. Both current and proposed guidance invite lawyers tasked with making charging decisions to take account of matters which are irrelevant, prejudicial, unreliable and ideological.     

5.         The guidance undermines the effect of McNally in relation to a suspect who expresses a belief in a gender identity and asserts a gender identity at variance with his or her biological sex.

6. The guidance elides two matters which are categorically different in both fact and law. 

(i) A suspect’s knowledge of his or her biological sex;         
(ii) A suspect’s belief that he or she has a gender identity.

The former is something which any person over the age of criminal responsibility can be taken to possess. The latter is a subjective and metaphysical belief. It can be claimed by anyone but can be neither verified nor falsified. 

7. It is apparent that the guidance is drafted based on one or both of two false premises:

 (i)       That gender identity allows a person a discrete category of heightened privacy;

(ii)       That the belief in gender identity is capable of eclipsing, for all material and legal purposes, a person’s understanding of their own biological sex.

8. The introduction of either of these premises into the determination of criminal liability is a significant departure from the law as articulated in McNally, and enjoys no legal authority from any source. It is a purported change in the law which would almost certainly require primary legislation, and which on any view the CPS is not competent to make.

DEFINITIONS

Sex

9.         Sex is an objective, fixed and verifiable characteristic[4]. It is biological and binary in its nature; people with ‘intersex’ or DSD conditions are male or female, irrespective of those conditions. Sex is one of the protected characteristics under the Equality Act 2010[5].

Gender Identity

10. Gender identity is a disputed notion. The proposed guidance demonstrates the nebulous character of gender identity in the various attempts to define and illustrate it. Gender identity has no legal definition. It is a wider concept than the legally defined ‘gender reassignment’[6] which, itself, is wider than the category of people with a Gender Recognition Certificate pursuant to the Gender Recognition Act 2004.           

11. A GRC grants the holder the right to be treated as their acquired gender. The scope of this right was described by Choudhury J. in Forstater v CGD Europe[7] in the following way.           

“Although section 9 of the GRA refers to a person becoming “for all purposes” the acquired gender, it is clear from these references in decisions of the House of Lords and the Court of Appeal, that this means for all “legal purposes”. That the effect of section 9 of the GRA is not to erase memories of a person’s gender before the acquired gender or to impose recognition of the acquired gender in private, non-legal contexts is confirmed by the comments of Baroness Hale PSC in R (C) v Secretary of State for Work and Pensions [2017] 1 WLR 4127 .”

  1. Accordingly, a GRC does not change someone’s sex biologically. Biological sex in humans is immutable[8]. It is not changed by gender identity. Gender identity is not sex. It is not a universally accepted idea, nor even a broad social consensus. It is a subjective and metaphysical position assumed by an individual.    
  2. The Gender Recognition Act requires only that the applicant obtain a diagnosis of gender dysphoria; no surgical, chemical or other medical interventions are required. Intervention by way of hormones or cosmetic remodelling of secondary sexual characteristics is optional and, in any event, incapable of changing a person’s biological sex. The vast majority of those who describe themselves in terms that fall under Stonewall’s ‘trans umbrella’ (to which the authors of the guidance refer) have had no surgical alteration. 

DECEPTION

Deception and Consent: The Current Position

14.       The law relating to deception as to one’s sex is clear and settled. The statutory framework comprises s.74 of the Sexual Offences Act 2003, which defines consent, and s.76(2), which sets out the limited circumstances in which an operative deception will be held conclusively to vitiate both consent and any claim of reasonable belief in consent. Those circumstances are:

(i) deception as to the nature or purpose of the act, or 

(ii) impersonation of someone known to the complainant.

15. Beyond the conclusive presumptions, litigation has focused on the impact of deception on the freedom and capacity of a person to give consent (per s.74 SOA 2003). The determinative line held by the CACD has been one of proximity to the nature and/or purpose of the act[9]. The circumstances in which deception vitiates consent are narrow, and Parliament decided not to widen it by including in the 2003 Act any prohibition analogous to the terms of s.3 of the Sexual Offences Act 1956 (Procuring a Woman by False Pretences).           

16. The extent to which the CPS has strayed from legal authority is brightly illustrated in the fallacious assertion that an active deception may have occurred:

“where a suspect [with a GRC] falsely asserts that their gender identity is the same as their birth gender/assigned biological sex.”       

17.       This is a difficult concept. Those who have drafted the guidance appear to have in mind a situation in which a person who possesses a GRC and therefore may be presumed to have a gender identity at odds with his or her biological sex claims to have a gender identity congruent with his or her biological sex. So, for example, a trans-identifying male with a GRC declaring him to be a woman, but who falsely asserts that his gender identity is male; or vice versa.

18. The only deception in such circumstances would be as to gender identity. The guidance advises that a deliberate deception as to gender identity can vitiate consent. This must proceed from a position that gender identity is as close to the nature and/purpose of a sexual act as biological sex itself. This is a wholly fanciful proposition for which there is no legal basis. 

Gender Identity & Deception

19.       The idea of deception as to one’s gender identity is meaningless, because gender identity is neither verifiable nor falsifiable. With the exception of an expressed preference for opposite-sex pronouns, everything that might be relied on as proof of ‘living as a woman’ / ‘living as a man’ refers to inherently sexist imposed social codes and norms.         

20.       Gender identities are necessarily formulated by reference to a person’s biological sex. They cannot eradicate a person’s knowledge of his/her own sex. A belief that biological sex is of no importance, or that it is of subordinate importance to a person’s gender identity, does not alter the fact that every person knows their own sex. The same applies to the belief that gender identity should be allowed to take legal and social primacy over biological sex. A belief that one is ‘born in the wrong body’ is an acknowledgement of one’s biological sex. A belief that compliance with social codes of femininity and masculinity are what define men and women does not alter a person’s knowledge of their own sex. The assertion of a gender identity may be a signal that the person does not believe sex is of any real importance, but it also recognises that society at large believes otherwise. 

21.       A Gender Recognition Certificate creates a legal fiction that a person is for most legal purposes, the sex that s/he, objectively and scientifically, is not. A legal fiction is a ‘deliberate deception’, in circumstances where the latter term is stripped of its pejorative weight.            

22.       A person (with or without a GRC) who is ‘living as a man’ or ‘living as a woman’ may be presumed to be engaged in a deliberate deception, assuming that they seek to ‘pass’ as the opposite sex. Legally and socially, there is a broad consensus that such a deception should be accepted, or treated as acceptable, for many purposes in that person’s public life. (That person’s use of, and access to, single-sex spaces does not fall within the consensus, but will not be addressed here.)

23.       ‘Identifying as’ a man or as a woman cannot be equated with a genuine belief that one is male or female. In order genuinely to believe that s/he is biologically the other sex (as opposed to, for example, believing that sex is not biologically defined), a person would have to be suffering from a delusion. Some proponents of the ideology which underpins the idea of gender identity (‘gender ideology’) will assert that there is such a thing as a ‘female penis’ and a ‘male vagina’. These are ideological emanations which seek simply to reorganise biological facts in line with the philosophical position that the categories of male and female are subjective and independent of biology; since such a position refuses to recognise the law, it cannot amount to a genuine belief for the purposes of the law.

24.       The proposals advise prosecutors to treat what they regard as a genuine assertion of a gender identity as evidence of a genuine belief about a person’s sex in assessing an allegation of deception as to sex. This would be analogous to treating a man’s sincerely-held religious belief that wedding vows function as a perpetual consent to sex as evidence of both consent and a reasonable belief in consent in assessing an allegation of the rape of his wife.            

25.       The guidance turns on the idea that a person’s gender identity, if genuine, may render a deception as to their sex inadvertent. It advances the staggering proposition: 

“If a suspect genuinely perceives their gender identity to be different to their birth assigned sex or if their gender identity is in a state of flux and/or emerging, this may be evidence there was not a deliberate deception.”        


26.       This is irrational and amounts to a breach of Article 14 in respect of relevant substantive rights (paragraphs 30 to 35 below) for both complainants and suspects. It results in a situation in which the philosophical beliefs of one cohort of suspects will or may:

(i) impact on the likelihood of charge;

(ii) determine the availability of a defence to any suspect;

(iii) undermine the accessibility and foreseeability of the law for suspects; and

(iv) diminish the legal protection for complainants from inhumane treatment.

27.       As a defence it could only be afforded to people who believe in gender ideology or purport to do so (the availability of such a defence could be expected to encourage false declarations of belief). Its success or otherwise at trial would depend on the ideological beliefs of a jury, because a jury will only be able to accept that gender identity renders a deception inadvertent if the members subscribe to specific precepts of gender ideology. It would not, therefore, be a question of whether the members of the jury accept a defendant’s account, but whether they agree with its ideological premise. That is an invidious position in which to place both a complainant and a defendant, and a wholly unreasonable approach to the assessment of evidence in making a charging decision. It is doubtful that so arbitrary an operation of the law would satisfy the definition of an impartial tribunal for the purposes of Article 6 or the qualitative requirements of legality for the purposes of Article 7.

RELEVANT CONSIDERATIONS UNDER THE ECHR

Article 3: Prohibition of Inhumane Treatment

28.       Rape and Sexual Assault amount to inhumane treatment for the purposes of Article 3. The right not to be subjected to such treatment is absolute, and the effect of Articles 3 and 8 is to impose on the State an obligation to provide protection from, and legal redress for, rape and sexual assault committed by private individuals[10]. To the extent that the guidance precludes or impedes a positive charging decision on an unlawful basis, it runs contrary to Article 3 amounting to a failure by the State to meet those obligations.

Article 8: Respect for Private and Family Life 

29.       The most prominent legal error in respect of Article 8 is the silence as to a complainant’s rights to a private and family life (in particular as they interact with Article 3 rights). Article 8 rights apply to all individuals in the context of consent obtained by deception and the investigation into, charging decisions about, and the prosecution of such an allegation. The interference with rights to a private and family life involved in the prevention of crime[11] (as well as the protection of rights under Article 3) is justified where it represents a proportionate means of achieving a legitimate aim, necessary in a democratic society. The guidance views rights to a private and family life exclusively through the prism of the deceiver’s experience without any apparent regard for that of the deceived.         

30.       The sections entitled ‘Gender Dysphoria’ and ‘Gender Recognition Act’ disclose two further errors of law. One is to extend, without any legal basis, the protected characteristic of gender reassignment to include anyone with a stated gender identity which is at variance from their biological sex. The other is to treat privacy , again without any legal basis as a freestanding matter to be taken into account in assessing the factual matrix of an allegation, specifically the question of privacy as to a suspect’s biological sex. Both of these errors are in concert with the legal changes contended for by lobbying organisations such as Stonewall, Mermaids, Gendered Intelligence, Global Butterflies etc (all primarily concerned with the promotion and legal adoption of gender ideology).    

31.       In support of the erroneous approach to rights to a private and family life, the guidance cites the ‘CPS Trans Equality Statement’ from 2019 and the Equal Treatment Bench Book 2021. Neither has any legal force. The former was promulgated shortly before the short-lived CPS LGBT Hate Crime guidance for schools[12]. Emphasis is also placed on s.22 of the GRA which provides that it is an offence for a person who has acquired information about a person’s GRC in an official capacity to disclose this information to another person. Whilst the citation of this provision is not inaccurate, it discloses a partiality in the perspective of those drafting the policy. The restrictions on data processing set out in s.22 GRA add nothing to the provisions of Article 9(1) of the UK GDPR and s.170 Data Protection Act 2018 in respect of those holding, or applying for, a GRC. Article 9(1) of the UK GDPR, however, applies equally to all suspects and all complainants in allegations of sexual offending. In the context of a document suffused with the language of gender ideology, this choice does not present as inadvertent or politically neutral.   

32.       The obligations of Article 14 apply to the protection of Article 8 rights for both complainant and suspect. Trans identified people have a right not to be discriminated against in the enjoyment of their right to privacy. But a decision not to prosecute based on the legal errors in this guidance would engage the Article 8 and 14 rights of complainants, since the vast majority of complainants in such allegations are female. The scope of deceptions capable of vitiating consent to sexual activity is already extremely narrow; this guidance would limit that scope further, and exclusively to the benefit of trans-identified suspects. In doing so, it would reduce the level of protection afforded to victims whose consent has been obtained by deception as to the accused’s sex. This introduces an asymmetry to the protection against deception, leaving some victims at a material disadvantage against those whose consent has been vitiated by other operative deceptions, or by suspects who do not identify as trans. It creates a further asymmetry in the approach to charging as between those suspects who identify as trans (or claim to) and those who do not, engaging the Article 14 rights of suspects who do not identify as trans in respect of their protection under Article 7.         

33.       The legal position in respect of privacy as it pertains to consent obtained by deception is as follows:

(i)        There is no legal authority for the proposition that a person has a privacy right to withhold the fact of his/her biological sex from a sexual partner.

(ii)       The Article 8 rights of complainants in allegations of sexual offending are engaged; the right to privacy encompasses a complainant’s psychological integrity, bodily autonomy and dignity, all of which are centrally relevant to both the act(s) complained of and any consequential investigation and litigation.

(iii)      Complainants in allegations of sexual offending have an enhanced general position in privacy in domestic law[13].            

(iv)      To the extent that an accused person can rely on the right to respect for his/her private and family life, the right to privacy is generally lost upon charge[14]. Such exceptional cases in which a right to privacy subsists are dealt with by way of reporting restrictions.    

(v)       The right to anonymity for a defendant is a matter of ongoing contention and would require the authority of primary legislation before it could be given effect. 

(vi)      There is no reason why a trans identified suspect (or a suspect claiming to identify as trans) should have an enhanced right to privacy where another suspect would not. Such a proposition enjoys no support from s.22 GRA, the Data Protection Act 2018, the Equality Act 2010, the Human Rights Act 1998 or any case law.

(vii)     If, and to the extent that, both complainant and accused have ECHR rights engaged, the proper approach is the “intense focus” test[15], articulated by Lord Steyn at §17 thus:

“First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

34.       The process of accurately identifying rights to a private and family life as they relate to trans identified suspects has been made significantly more difficult by the way in which the guidance creates a single cohort of people with different legal statuses. Those with a GRC fall under Article 9(1) of the UK GDPR, and s.7 of the Equality Act 2010. Those without a GRC but who are “proposing to undergo, undergoing or ha[ve] undergone a process (or part of a process) for the purpose of reassigning [their] sex by changing physiological or other attributes of sex” fall under s.7 EA 2010. Those who have not undergone, and do not propose to undergo, any process of sex reassignment but who assert a gender identity different from their sex do not fall into the scope of either provision. None of the categories are entitled to an enhanced right to privacy, and the latter two have no access to the data processing limitations of Article 9(1) of the UK GDPR.[16]

UNLAWFULNESS

35.       The introductory remarks state that the proposed guidance is intended to assist prosecutors with a complex area of law. Since the unwavering focus of the proposed guidance is the trans-identified suspect’s right to privacy pursuant to Article 8, as it is said to interact with domestic law on deliberate deception as to sex, it would be reasonable to expect an indication of where, the protection of a suspect’s Article 8 rights is failing in practice. The consultation document is, however, silent as to this. Expressed bluntly, the guidance creates the impression that suspects who identify as trans should be more readily excused criminal liability for deception as to sex, not because the deception was not deliberate, but because they identify as trans.            

36.       The guidance treats a suspect’s gender identity as a relevant, or even determinative, factor in establishing whether a deliberate deception as to sex has occurred. Whether it is right, desirable or workable for this position to be brought into law is an undoubtedly important issue. It remains, however, unlitigated and unlegislated. Embedding a preferred view on the matter into policy in this way represents an overreach on the part of the CPS so startling that it could be described as an attempt to usurp the function of Parliament. The effect of the guidance is to interpret and apply the substantive law as though it had been changed in a number of respects, all of which are so significant that they would require binding judicial authority at the very least, if not primary legislation. This goes far beyond the CPS’s duty to apply the law and trespasses unambiguously into the territory of making law. It is frustrating the legislative function conferred on the CPS and is ultra vires.

37.       The guidance elides two categorically different uses of the word ‘gender’ in circumstances where the distinction between the two is central to the legal issue at hand. ‘Gender’ in the sense that it was used by Leveson LJ in McNally means biological sex, a matter which meets the legal requirement of proximity to the nature and purpose of the sexual act. This is the only meaning of ‘gender’ pertinent to the question of whether a deception as to sex was deliberate. ‘Gender’ in any of its other senses (a societal system of norms used to protect and enforce inequality between men and women, an individual’s metaphysical ‘sense of self’, a political identity etc) is incapable of meeting that same requirement and is wholly irrelevant to the assessment of whether a deliberate deception took place. The elision of these two matters for the purposes of applying the legal test does not serve the stated aim of the consultation (to assist prosecutors to have a better understanding of the law). Instead, it appears to promote an avoidable, unnecessary and legally baseless confusion with the result that prosecutors will be advised to make decisions on the basis of irrelevant considerations. This is an error of law and is, in our view, unlawful.

38.       The guidance expands beyond their legal definition the scope of s.9 of the Gender Recognition Act 2004 (misinterpreting the phrase “for all purposes” as applying far beyond the GRC holder’s public life) and s.7 of the Equality Act 2010 (to construe the protected characteristic of gender reassignment as being coterminous with gender identity), such as to make the legal and practical consequences of those provisions opaque. The combined effect of these misinterpretations is to confer a special status (reaching beyond the protections of the Equality Act 2010, the Gender Recognition Act 2004 or the Data Protection Act 2018) on an expanded cohort of suspects, whose common characteristic (gender identity) is not legally recognised. This further renders the guidance unlawful for errors of law and frustration of the legislative purpose.          

            THE SECTIONS

Gender Dysphoria

39.       Two sentences of this section are dedicated to the explanation of gender dysphoria as a medical diagnosis. The remainder of the section is given over to the somewhat different (and non-medical) topic of gender identity, perhaps to suggest that the two are largely coextensive. The relevant point is that both gender dysphoria and gender identity involve an individual having a clear understanding of what his or her biological sex is. Neither has any impact on the fact or nature of a deception as to sex.      

Evidential Considerations

40.       The point extracted from paragraph 26 of R v McNally [2013] EWCA Crim 1051 is correct, in that the CACD did find that the Appellant’s deception was deliberate. From this, the CPS assumes the position that the ‘inadvertent but operative’ deception as to sex is something of which a suspect should be able to avail him or herself by relying on the authenticity of his or her gender identity to establish inadvertence.            

41.       The axis around which the deception turns is the physical binary of sex; unless and until Parliament decides otherwise, gender identity is immaterial for the purposes of establishing whether there has been such a deception or whether it was deliberate; any guidance must reflect this fact in a way that is logical and immediately comprehensible. Deception as to gender/gender identity cannot negative consent, because a person’s stated ‘internal sense of self’ (sincere or otherwise) does not meet the threshold of proximity either to the ‘nature or purpose of the act’ for the purposes of s.76 SOA 2003 or to the act itself for the purposes of s.74 SOA 2003[17]. One need only consider a scenario in which B (a female) consents to penetrative intercourse with A (a male) on the basis that A has told B that his gender identity is Genderqueer, when it is, in fact, Two-Spirit. However unlikely such a scenario might be, no rational reading of the law would support the conclusion that B’s consent was vitiated by A’s deception.

42.       By contrast, misrepresenting one’s gender identity as one’s sex (where the former is opposed to the latter) is a necessarily deliberate deception. Every person knows their sex from a very young age, long before the age of consent. A person’s feelings or beliefs about the fact of their sex may be a source of great distress and pain to them, but the legal fiction afforded by a GRC cannot trespass into the arena of sexual consent. To operate otherwise would be to prioritise the privacy and dignity of some people at the expense of the privacy, dignity and right not to be subjected to inhumane treatment of their current or prospective sexual partners.     

43.       Virtually everything in the following extract from this section is legally confused or  wrong. This passage is diagnostic of the extent to which the proposed guidance is an ideologically driven attempt to circumvent the law as it currently stands:

“There is no duty to disclose gender history[18], but in some circumstances suspects who are living in a new gender identity at the time of the alleged offending (as opposed to falsely purporting to be a different gender), including those who have obtained a GRC[19], may still be capable of actively deceiving a complainant as to such matters relating to their gender. For example, where a suspect falsely asserts that their gender identity is the same as their birth gender/assigned biological sex[20]; or lies in response to questions about their gender history; or denies being a trans man or a trans woman[21].”

44.       It is, perhaps, worth noting that at §10 of McNally, the appellant was described as repeatedly expressing the desire for a “sex change”. As previously observed, McNally uses the language of 2013, but the terminology of gender ideology would have little difficulty in describing her as a ‘trans man’. The proposed guidance may well result in a decision not to charge in the circumstances that met the court in McNally. The decision in McNally has drawn criticism from prominent proponents of gender ideology[22], to the effect that deception as to sex does not incur sufficient harm to justify the interference with a transgender suspect’s privacy. The authors of this policy appear to be seeking to overturn McNally without having to wait for any countervailing authority or legislation. 

45.       The legal protection of gender reassignment (not gender identity) creates conflicts with two other protected characteristics; sex and sexual orientation. It is difficult to identify an area of life in which those conflicts have a greater impact than they do in sexual activity. The centrality of a partner’s sex to a victim’s freedom and capacity to choose, and therefore consent, is set out in paragraph 26 of McNally:

“Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common-sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the defendant’s deception.”

46.       In the section ‘Was the complainant deceived and therefore did not consent?’, the influence of the gender ideology lobby is evident once again. Half of the questions invite an approach in which a complainant should be considered responsible for establishing whether s/he is being deceived about a sexual partner’s sex.

“Has the complainant closed their eyes to the obvious or wilfully ignored aspects of the suspect’s gender? For instance, did the complainant have an opportunity to discover or confirm the gender of the suspect but chose not to avail themselves of the opportunity?”          
and

“Is there any evidence that the complainant was exploring their own sexuality at the time of the alleged offending?”

47.       It has been a number of years since so sceptical an assessment of complainants of sexual offending has been considered acceptable at the CPS. This runs counter to the strategy of ‘offender focused’ investigations which the CPS has developed as part of its Violence Against Women and Girls strategy.                 

48.       The adoption of these revisions would expose the CPS to the very real risk of litigation on the basis that the guidance is irrational and unreasonable, that it breaches of the rights of victims under Articles 3, 7, 8, and 14 of the ECHR, the rights of suspects under Articles 7, 8 and 14 of the ECHR, and the Public Sector Equality Duty pursuant to s.149 of the Equality Act. The absence of an Equality Impact Assessment for this consultation is striking; it could be fairly regarded as shorthand for the comprehensive failure – or refusal – to consider the multiple conflicts of rights thrown up by this guidance.  

49.       For all the above reasons, we urge the CPS to suspend the current guidance and to withdraw these proposals. Any replacement must be drafted with the objective of upholding the CPS’s legal obligations as they are, and not as some would wish them to be.

[1] s.74 Sexual Offences Act 2003

[2] R v McNally [2013] EWCA Crim 1051

[3] S.6 Human Rights Act 1998

[4] Corbett v Corbett [1971]; Bellinger v Bellinger [2003] 2 AC 467, HL; Chief Constable of West Yorkshire Police v A (No 2) [2005] 1 AC 51, HL

[5] S.11 and s.212 Equality Act 2010

[6] S.7 ibid

[7] [2022] I.C.R. 1 at §97

[8] R (oao Elan Cane (Appellant)) v SSHD [2021] UKSC 56 at §3

[9] R v Jheeta [2007] 2 Cr. App. R. 34 §24; R(F) v DPP [2013] 2 Cr. App. R. 21; R v McNally (2013) EWCA Crim 1051; R (Monica) v. Director of Public Prosecutions [2018] EWHC 3508 (Admin) at §74, §80; R v Lawrance (2020] EWCA Crim 971

[10] MC v Bulgaria (2005) 40 E.H.R.R. 20 at paragraphs 151-153; D v Commissioner of Police for the Metropolis [2019] A.C. 196

[11] Article 8(2) ECHR

[12] This was withdrawn in 2020 in the early stages of a public law challenge

[13] S.1 Sexual Offences (Amendment) Act 1992

[14] ZXC v Bloomberg [2022] UKSC 5

[15] In re S [2004] HL 47

[16] Article 9(2)(f) UK GDPR

[17] R v Lawrance (2020] EWCA Crim 971, Assange v Sweden [2011] EWHC 2849 (Admin), R (oao Monica) v DPP [2018] EWCA 3508 (Admin)

[18] Assuming that ‘gender history’ includes a reference to a person’s biological sex, this is a somewhat tendentious interpretation of R v B [2006] EWCA Crim 2945 and sits in contradiction to Lawrance at paragraph 41.

[19] This implies, incorrectly, that possession of a GRC entitles a person to deceive a sexual partner about their biological sex.  

[20] See §17ff above

[21] This clearly relates to the fact of a person’s biological sex

[22] See e.g.; ‘Sexual Intimacy and Gender Identity ‘Fraud’: Reframing the Legal and Ethical Debate’; Alex Sharpe, Routledge

Prison Allocation: How Is It Done?

On 8 September 2022 the Daily Mail reported that Sally Dixon, convicted of multiple sex offences against children between 1989 and 1996, had been sentenced to two consecutive nine year terms to be served in the women’s prison estate. This information was newsworthy because Sally Dixon was born male, committed those offences as a male and, as no Gender Recognition Certificate has been issued, remains legally as well as biologically male. 

Dixon will reportedly go to HMP Bronzefield, a women’s prison and young offender institution. Bronzefield also has a mother and baby unit, accommodating babies up to 18 months with their mothers. 

The Mail reported that it was the judge who sent Dixon to a women’s prison, which is wrong. A sentencing judge determines the sentence, but has no role in deciding where it will be served.

The rules on how this is managed are set out within the Ministry of Justice’s policy on The Care and Management of Individuals Who Are Transgender. 

When a transgender prisoner is identified, a Local Case Board is convened. If the issue is relatively simple (e.g. a female prisoner who identifies as male or non binary but has no GRC and wants to stay in the female estate) then the Local Case Board will complete the process. However if it is more complicated then a referral will be made to a Complex Case Board. This includes cases where someone wants to be placed in the estate of the opposite sex, as has happened here. 

The reader may initially be relieved to hear that the policy claims that “Decisions are free from bias, follow a clear, recorded process and are undertaken by staff who have a sound basic awareness of transgender identity.” The footnote mutters that this sound basic awareness is gleaned from an online e-learning module.

So what is the basis on which the decisions are made? The risks presented both to and by the transgender prisoner must be considered, as well as the prisoner’s own views. It is not the case that the prisoner gets a free choice, nor that a judge has magical dispensing powers. 

The policy provides: 

Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all individuals in custody as set out below19.

Potential risks to the individual from others, or personal vulnerabilities of the individual, related to: (*indicates critical factors)

*Mental health and personality disorder;

*History of self-harm;

*Anatomy, including risk of sexual or violent assault

*Testimony from the individual about a sense of vulnerability, e.g. in a male
environment, in a particular prison, or from a particular prisoner or group of other prisoners;

*Risk of suicide;

*Medication including the absence of medication and the impact of known side effects

*History of being attacked, bullied or victimised;

*Intelligence including evidence of coercion, manipulation, or threats towards the individual

Family circumstances/relationships

Age

Physical health

Learning disabilities or difficulties.

Potential risks presented by the individual to others in custody and an AP related to: (*indicates critical factors)

*Offending history, including index offence, past convictions and intelligence of potential criminal activity- e.g. credible accusations.

*Anatomy, including considerations of physical strength and genitalia;

* Sexual behaviours and relationships within custodial/residential settings;

*Use of medication relating to gender reassignment; and use of medication generally;

*Past behaviour in custody, the community, in the care of the police, or in the care of prisoner escort services;

*Intelligence reports;

*Evidence of threats towards others;

*Mental health and personality disorder;

Learning disabilities or difficulties;

Substance misuse.

Views/characteristics of the individual: (*indicates critical factors)
*Birth, legal and presented gender;

*Strength of confirmation of presented gender, including medical treatments and full
evidence of gender identity (such birth certificate, or a GRC)

*View on establishment allocation, prison management and lifestyle.

4.19  Whilst the view of the individual on location should always be taken into account, this view must be put into the context of any risks that may be posed to the individual by others (including the risk that they could be threatened or manipulated into giving that view) and the risk that could be posed by the individual to others, whether in the men’s or the women’s estate.

This was the policy that was  unsuccessfully challenged in R (FDJ) v SSJ [2021] EWHC 1746 (Admin). The court was careful to set out its parameters: it was assessing the lawfulness, not the desirability, of the policy [para 72]. On the subject of the Case Boards, the court held: 

“The LCBs and CCBs are expert multi-disciplinary panels. Their members are the persons best placed to assess the risks, and determine the appropriate management of those risks, in a particular case. Those members will surely be well aware of the vulnerabilities of the women who are held in the female prison estate, and of the fear and anxiety which some of them will suffer if a transgender woman, particularly one with male genitalia and/or with a history of sexual or violent offending against women, is accommodated in the same prison. The members are expressly required by the Care and Management Policy[2] to take into account – amongst other relevant factors – the offending history of the transgender woman concerned; the “anatomy, including considerations of physical strength and genitalia” of that person; and the sexual behaviours and relationships of that person. They can in my view be expected to be astute to detect any case of a male prisoner who, for sinister reasons, is merely pretending to wish to live in the female gender.”

In other words, the LCB and CCB must consider the offending history of the prisoner in question when coming to their decision. They are not allowed to ignore it. 

One can perhaps see how a panel might reach the view it did in Dixon’s case. Transition here had begun in 2004 – after the offending period but many years before prosecution –  which suggests the transition was not a cynical attempt to game the system. The panel is entitled to take into account the nature of the offence, but would have to set against that that the last known offending was 1996. Intelligence as to ongoing offending can be taken into account. Sexual offending is notoriously hard to rehabilitate, but it seems unlikely that a panel would infer that there was a present risk simply from the nature of the offending if the last known or even suspected offending was quarter of a century earlier. Add to that the fact that the “risks to” Dixon  included a history of being attacked, bullied or victimised: former friends were reported as having embarked on a course of harassment for which they were sentenced in 2016. 

All of this leads to a wholly unsatisfactory situation in which a person biologically and legally male, with a history of repeated sexual offending, imprisoned for sexual offending, is nevertheless assessed as presenting an acceptable level of risk to female prisoners. Dixon may not present a significant risk to the women in prison in terms of future offending. But there remains the fact that members of the female prison population are  disproportionately likely to have suffered childhood sexual abuse and other forms of male violence. At best, requiring them to share accommodation with a male who has committed Dixon’s crimes is unlikely to do anything to assist their recovery or  rehabilitation, or with restoring their fragile trust in a system which, too often, has already failed them again and again.

As was highlighted in FDJ [para 82] the policy does not require the LCB or CCB to take into account the “the vulnerability of women prisoners, their frequent experiences of sexual assaults and domestic violence, and the fear and anxiety they may experience as a result of sharing accommodation and facilities with transgender women.”  Lawful though the policy is, it demonstrates an asymmetry which underpins the assumption that the integration of transwomen with women in the prisons’ estate is a desirable objective. Certainly this was the starting point of the court in FDJ. It is, in our view, profoundly sexist but, for good or ill, not all sexism is actionable.

Obviously women prisoners do not have to be assessed in the same way. But if a similar checklist were applied to them, the panels would be reminded of the practical context of their decisions, and be less susceptible to the inequity of awarding primacy to the psychological comfort of male born prisoners over the psychological, physical and sexual safety of women. 

Perhaps it is time that the policy began to require consideration of the vulnerability of women prisoners.

Policing boundaries- social policing and legal remedies

A common retort to the concern that self-identification threatens women’s single sex spaces is to say that legal mechanisms would still exist to protect women from men who would abuse the system and to provide redress when those protections are breached.  This argument is flawed.  It fails to take into account the practical difficulties that would arise in invoking those provisions.  It fails to recognise how social policing would be diminished and women would be compelled to lower their boundaries.  

What is social policing? Any woman will recognise the steps that we take to keep ourselves safe in public spaces: telling a friend when we are making a journey alone, pretending to be on the phone when in a train carriage with a strange man, crossing the street if a man is walking behind us are but a few of the behaviours that many women practise as a matter of reflex.  Included in these behaviours are measures related to communal areas: if we see a male-bodied person in the women’s changing rooms at the gym we will challenge him and ask him to leave, we will tell a member of staff, we will warn other women entering the room, we will postpone undressing until he flees in embarrassment at his mistake or is removed by the gym staff. The chances are that it is an innocent mistake and that man poses no threat to our safety, but just like crossing the road when a man is walking behind us, we would rather not take the chance.

Self-identification forces us to lower our boundaries around all male people, whether genuine transwomen or men who would pretend to be one.  It asks us to mentally place that man in the category of “woman: unlikely to be a threat” rather than “man: a potential risk”, on nothing more than his word that he is the former.  This is not about whether transwomen are a threat to other women; it’s about the fact that the removal of objective criteria for what it means to be a transwoman makes it impossible in that scenario to draw that distinction.  If the response to “This is the ladies, please can you leave” is “I’m a woman”, then challenge to that assertion becomes difficult. Even the gym staff will probably have been coached that it would be discriminatory to ask a transwoman to provide a copy of their GRC, so best not ask the question.  It might be a lie, but who wants to be seen as a bigot for falsely challenging and humiliating a genuine transwoman? We saw this exact scenario play out in the Wi Spa incident.  Better not to challenge, not to tell the staff, not to warn other women and to think twice about returning to that gym.

What legal redress could individuals or businesses invoke to protect single-sex spaces?  Let us look at an example of a gym changing room.  

In criminal law, section 66 of the Sexual Offences Act 2003 creates an offence of ‘Exposure’ where a person (a) intentionally exposes his genitals, and (b) intends that someone will see them and be caused alarm or distress.  If a man is encountered in the female changing rooms exposing his genitals, a prosecution would be reasonably straightforward: the lack of legitimate purpose in being in a state of undress in that place creates a presumption that he would know that a woman would be likely to be caused alarm or distress by seeing male genitals.  Challenging a defence that he was acting with benign intent would not be difficult.  Little would be required from a prosecution witness other than to testify that they saw male genitals and that the man concerned did not immediately act to remedy his mistake.  

However, if that same person states that he is  a woman and has a legitimate purpose in using the changing rooms to get changed, then a prosecution becomes more difficult. The presumption of mal-intent falls away.  That is not to say that a prosecution is impossible: as in the WiSpa incident, if the intruder is in a state of arousal then it would be hard to argue lack of intent. But it is likely that the prosecution witness would face much more rigorous questioning by the defence: What did you see? How long for? Are you sure (s)he was aroused? Aren’t you just a bigot for being alarmed at sharing a changing room with this poor transwoman who just wanted to get changed?  

A two-tier system for offenders is effectively created: a presumption of mal-intent if the man identifies as such, and no presumption if he identifies as transgender; but in either case the women he encounters will have observed exactly the same male body.  It is well known that ‘minor’ sexual offending such as flashing is frequently a precursor to more serious crimes.  Self-ID creates a situation where men can commit those offences with impunity.

Civil law, and specifically the exceptions contained in part 27 of Schedule 3 of the Equality Act 2010 permit organisations such as gyms to provide single-sex facilities.  They are also likely to have a contractual term for the use of their gym that members are not to harass, alarm or intimidate other users, and in theory any member beaching this condition by using changing facilities designated for the opposite sex could be banned from the gym and refused re-entry without the gym unlawfully discriminating against him.  

However, as our earlier blog explains, anything other than a blanket enforcement of the single-sex space is likely to be unworkable in practice.  Not only does this create a minefield for the gym workers to navigate, but it makes it difficult for the female patrons to object as well.  It becomes impossible for a female patron to act on those feelings of unease that have caused many a woman to take precautionary measures: instead action can only be taken once the unwelcome conduct has taken place.  

There is no obvious civil law route for a woman to take direct action against a man for using female spaces or services.  Her best course of action would be to bring a claim for direct or indirect discrimination against the service provider in relation to her protected characteristic of sex and/or where applicable, her religious belief.  She could argue that the failure to provide appropriate single-sex facilities to change subjects her to a detriment upon which a claim for indirect discrimination can be founded.  If (as seems to be an emerging trend) the serviced provide designates the facilities as ‘male’ and ‘gender neutral’, she may have a claim for direct discrimination. 

But resorting to the law is expensive, time-consuming and can be emotionally challenging.  Some women will simply limit their engagement with sports, with recreation and with spending time outside of the home.