Why even a kiss can see trans people branded as sex criminals

Royal court of justice
The Court of Appeal in London has already heard similar cases.

British trans people face jail unless they tell their lovers their gender history before sex.

Even kissing may be considered sexual assault and penetrative sex – with a willing partner – can be counted as rape if they claim they didn’t know about a trans person’s gender

That’s the shocking revelation after top lawyers and academics got together to discuss the UK’s sex laws.

The last major review of sexual offences was over almost 15 years ago, at a time when trans people in the UK were far less visible and politically organized. It seems they were simply ignored when the laws were drafted.

Grietje Baars, a senior lecturer in law at City University says the current Sexual Offences Act 2003 was meant to clarify the confusing array of laws around sexual conduct but ‘in practice it failed’.

The law says when you are deceived about the nature of the sex act you are about to engage in, you are incapable of informed consent.

Any activity that follows, from simple kissing to intimate touching or penetration will be treated as sexual assault or rape.

The main problem is how courts interpret what you need to know before you can consent.

Baars said: ‘Judges have twisted the law to fit personal prejudice. There is much contradiction in their rulings.’

Michelle Brewer a public law barrister with Garden Court Chambers detailed a Court of Appeal Case when judges regarded non-disclosure of gender history as lying.

The Crown Prosecution Service in England and Wales has said it will not automatically prosecute a trans person where sex by deception is alleged. They will treat cases on their ‘merits’, leaving the option to prosecute open.

The lawyers concluded the law is unclear and could be used against trans people – and that they should know the risk.

The Transjustice event was hosted by Garden Court Chambers in association with Birkbeck University and City University London. It also discussed setting up a network to advise trans people caught up by the law.