Deceptive Sex: Rethinking Consent from the Gender Margins

Abstract

This article argues that trans people who choose not to disclose, or who lie about, their gender history prior to sexual intimacy should not be prosecuted for sexual offences, at least not in the absence of a clear and express condition pertaining to cis status or biological sex. There are at least four ways of arriving at this outcome: by dispensing with the category of sexual deception; by rendering the category operative only where an express condition is laid down in advance of intimacy; by adopting a general theory of consent that uncouples trans deceptions from a conclusion of wrongness; or, finally, creating a legal exception in the case of trans people. After rejecting the first two approaches, the article considers three recent general accounts of consent offered by Chloë Kennedy, Emily Tilton and Jonathan Jenkins Ichikawa, and Victor Tadros. Ultimately, the article argues that the fourth approach offers the best way forward, drawing significantly on Tadros's theory to this end. In making the case, the article seeks to balance complainant sexual autonomy against three countervailing moral considerations: trans people's privacy, epistemic injustice, and the impact of deception on gender equality.