UK ‘sex deception’ law puts trans people in ‘impossible position’, say journalists

Following Ciara Watkin’s conviction, two journalists have hit out at the “double bind” of disclosure in dating, calling it “extremely humiliating” and “absolutely ridiculous.”

In August, Ciara Watkin, 21, who transitioned at 13 and has used the name Ciara since then, was found guilty of two charges of sexual assault, and one charge of assault by penetration.

The BBC reports that Ciara Watkin told a man, who she had met over Snapchat, that she was on her period to stop him finding out she had not yet had gender-affirming surgery.

Prosecutors argued that the man was unable to make “informed consent”, after he claimed he wouldn’t have had sexual contact with Watkin had he known she was trans.

The jury reached a guilty verdict after just one hour of deliberations following a two-day trial. According to section 74 of the Sexual Offences Act 2003, a person consents to sexual activity “if he agrees by choice, and has the freedom and capacity to make that choice.”

Under the Crown Prosecution Service’s recently-updated “deception as to sex” guidance, it was argued that he could not have given informed consent to the sexual activity between them.

Commenting on the verdict, Sarah Nelson, Senior Crown Prosecutor at CPS North East, said: “It is clear from the evidence in this case that, prior to engaging in sexual activity with the victim, Watkin had made no attempt to inform him of her transgender status.

“The Crown Prosecution Service has shown that, by failing to disclose this to him, it would not have been possible for him to give informed consent to sexual activity.

“The victim has made clear in police interview that he would not have engaged in sexual activity had he known that Watkin was transgender and, consequently, these events have had a significant impact on his mental wellbeing.

“We hope that he can take some comfort from seeing Watkin convicted for these serious sexual offences today.”

‘Barbaric and inhumane’

Trans broadcaster and former Loose Women co-host India Willoughby described Ciara Watkin’s conviction to PinkNews as “barbaric and inhumane.”

Willoughby said: “I think this decision is outrageous. There’s no sex by deception here. As far as I can see, they dated. They found each other attractive.”

The CPS updated its guidance on “deception as to sex” at the end of last year following a public consultation. It now states there is no difference between a deliberate deception about birth sex and a failure to disclose birth sex.

The guidance adds: “A suspect may deceive a complainant as to their birth sex if they choose not to disclose their sex or trans identity. There is no expectation for a complainant to confirm the sex of the defendant prior to sexual activity.”

The CPS said that they received 409 responses to the consultation in total, including from “gender critical stakeholders, women’s rights groups and lesbian and gay persons.”

This change has caused concern within the trans community, with Willoughby and jane fae, who is also a journalist and is the director of TransActual, warning that it forces trans people to out themselves.

Willoughby said of the expectation to disclose before dating: “What sort of dystopian world is that normal?” She added that it feels as if “minorities are being singled out” and “immediately identified,” which she described as “inhumane and barbaric”.

‘It puts trans women in an impossible situation’

fae echoed this, criticising CPS guidelines that imply trans people should disclose their gender history: “The way people have negotiated this space is by applying common sense. Either you divulge early, risking violence and rejection, or you say nothing until intimacy and hope it’s okay. Neither position is ideal. It puts trans women into an impossible situation.”

The guidance does state that not every failure to disclose will result in a criminal offence, and that cases will be assessed individually.

But Willoughby said the law unfairly singles out trans people: “We don’t have a situation where bisexuals, cis people, conservatives, or evangelical Christians have to declare who they are before sex. So why is this applied only to trans people?”

She fears for Watkin’s sentencing, particularly given the UK Supreme Court ruling that the Equality Act’s definition of sex refers to “biological” women. As a result of the ruling, prison services will have to revise their policies on where trans prisoners are held.

UK is ‘the most transphobic country in Europe’

India Willoughby described disclosure as “extremely humiliating and stigmatising,” and argued that the UK has become “the most transphobic country in Europe” due to escalating government-backed hostility.

fae pointed to the 2013 case of Justine McNally, where deception about gender identity led to convictions under sexual assault law. McNally was initially jailed for three years on the grounds of obtaining the sexual consent of another woman “by fraud” but was freed by the Court of Appeal, due to the sentence being ruled as “too harsh”, after serving 82 days in prison. Judges gave her a nine-month suspended sentence instead.

She said: “Personally, I think you should disclose, but that should apply to anything significant, like religion or relationship status. The current situation where failing to mention your trans background leads to a sexual assault charge, but lying about your religion doesn’t, seems absolutely ridiculous.”

She added: “This is the double bind that a patriarchal system always places women in. The fact that it affects trans women in this specific way does not change the reality that dating as an institution is set up, as always, to protect the heterosexual man.”

*NB: jane fae chooses to have her name written in all lowercase letters.