In theory transwomen aren't the problem in the sense of using the services.
The problem is concealment of sex in a vulnerable position like this.
I'm mindful that using deception to engage in sexual acts can be unlawful and there is a debate over loopholes in the law around this with calls to update the Sexual Offences Act 2023.
The CPS has some guidance around sex and deception on this subject.
https://www.cps.gov.uk/publication/deception-gender-proposed-revision-cps-legal-guidance-rape-and-serious-sexual-offences
If you read the article it's interesting. The following being the most relevant.
Evidential considerations
The Court of Appeal in R v Justine McNally [2013] EWCA Crim 1051 determined that “depending on the circumstances, deception as to gender can vitiate consent” [27]. In McNally, the court characterised the appellant’s actions as a deliberate deception [26], rather than a failure to disclose, confirming that active deception as to gender falls within the scope of s74 of the sexual Offences Act 2003.
Whether the complainant has been deceived will require very careful examination of the evidence and consideration of all the surrounding circumstances. Prosecutors should ensure that they have sufficient material from the police in order to make this determination.
The question of deception can be considered in three stages:
- Has there been active or deliberate deception by the suspect? If not, the deception will not fall within the scope of s74 of the Act and consent will not be vitiated. However, if there is a deliberate deception, consider the second question.
- Was the complainant deceived and therefore did not consent? If so, consider the third question.
- Did the suspect reasonably believe the complainant consented?
1: Has there been active or deliberate deception?
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.
The following type of evidence may assist to establish how the suspect perceived their identity:
- The steps the suspect has taken to live consistent with their gender identity.
- The steps the suspect has taken to acquire a new legal or administrative gender recognition.
Possession of a GRC proves that an individual has been legally recognised in their affirmed gender and is strong evidence to show that the individual is living in their affirmed gender. However, a person’s gender identity or affirmed gender is not dependent upon them obtaining a GRC and the vast majority of trans people do not obtain a GRC: see above.
How the suspect perceived their gender at the time of the offence can be a complex issue. The following matters should be borne in mind:
Gender identity can be fluid and/or emergent for some persons, particularly young persons, who may explore the nature of their identity and/or sexuality.
A person whose gender identity isn’t the same as their sex assigned at birth may express their gender through their speech, dress, gestures, mannerisms etc, without regarding this as a fabrication, a performance or a deception.
Some trans people may not always be living in their true gender identity due to safety considerations.
A person who presents as a particular gender at the time of the alleged offence may subsequently revert to their sex assigned at birth when an allegation is made against them. Any apparent reversion may be for numerous reasons including, but not limited to, pressure to conform to social norms.
On the facts of the case in McNally, the ruling that deception as to gender can vitiate consent applies to situations where a person falsely purports to be of a different gender (McNally was a girl who presented herself as a boy, using a male avatar “Scott” online). Although the courts have not addressed the point, the ruling would appear to be capable of applying broadly to include, for instance, deception as to birth gender/assigned biological sex, gender history or trans status. There is no duty to disclose gender history, 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, 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; or lies in response to questions about their gender history; or denies being a trans man or a trans woman.
Prosecutors should adopt an offender-centric approach when assessing whether there has been an active or deliberate deception. This involves looking closely at the actions of the suspect before, during and after the alleged assault (see chapter 3 for more details). By analysing the suspect’s behaviour in this way, a prosecutor should fully understand the circumstances and context of the incident.
An offender-centric approach should also allow the prosecutor to determine whether the suspect targeted, manipulated or exploited the complainant, or exerted control or coercion during their relationship. Where there is evidence of this nature, it is more likely that the suspect has actively or deliberately deceived the complainant.
2: Was the complainant deceived and therefore did not consent?
The rulings in McNally [25] and R (F) v DPP [2013] EWHC 945 (Admin) emphasise that “choice” is crucial to the issue of “consent” and “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad common sense way”.
Prosecutors should consider the complainant’s particular characteristics and life experiences, and how these may have impacted on their relationship with the suspect and their understanding of the suspect’s gender. For instance, a complainant who is young, immature, vulnerable or inexperienced in sexual relationships may more easily be deceived, and therefore lack the choice or freedom to consent, especially where there is a disparity in age or maturity between the suspect and the complainant.
When assessing the complainant’s account, the following non-exhaustive list of questions may also assist prosecutors, depending on the circumstances of the case:
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?
Is the amount and nature of the contact, including communications between the suspect and the complainant, consistent with the complainant not knowing the suspect’s gender and being deceived?
Is there any evidence that the complainant was exploring their own sexuality at the time of the alleged offending?
In addition to the issue of deception, prosecutors should consider whether there are any other factors that may affect the complainant’s capacity and freedom to consent, such as intoxication by alcohol or drugs.
3: Did the suspect reasonably believe that the complainant consented?
If a complainant is deceived and did not consent, it is crucial to consider whether the suspect reasonably believed in consent to sexual activity. Again, an offender-centric approach should be adopted, and the focus should be on the actions of the suspect before, during and after the alleged assault.
When addressing this question, the following considerations may assist prosecutors:
Where there has been an active or deliberate deception by the suspect, it is likely that the suspect did not reasonably believe that the complainant consented.
Where there is evidence of coercion, manipulation, or exploitation of the complainant, it is less likely that the suspect held a reasonable belief.
However, there may be very limited circumstances where, despite the suspect deceiving the complainant, the defendant reasonably believes the complainant consents to the activity. For instance, the suspect may believe that the complainant is initially deceived as to the suspect’s gender but, because of the long passage of time between the initial deception and the sexual activity, during which the suspect and complainant meet and interact on numerous occasions, by the time the sexual activity takes place the suspect reasonably believes that the deception no longer operates on the complainant.
In such scenarios, prosecutors should examine very carefully the facts and circumstances of the suspect’s claim that they believed the complainant consented and, given that there has been a deception, consider what steps the suspect has taken to satisfy themselves that the complainant consented.
Reflecting on this I think there is room to expand the law and to say that consent in certain areas MUST include full disclosure of sex. This should relate to all intimate examinations and all discussions relating to issues of an intimate or sexual nature within a professional capacity.
This would include medical settings and any kind of counselling. This then makes it patient centred and is a clear boundary.
There may also be scope in certain other areas too for legitimate purposes.
I think this is something that wise people in politics would be advised to have a good look at to put some clear water here that would be difficult to push back on in 'sensible circles' so to speak.
The thing I find particularly difficult from the above is the offender centric approach as to whether someone has made a deception about sex and it being somehow based on the perceptions of the accused about their sex and whether they'd told someone, when we have India Willoughby and Mridhul Wahwa levels of TWAW and what constitutes sex. This isn't about belief. It's about consent and a black and white line about sex.