Is it ok to deceive a sexual partner about your biological sex?

[Clymene]

This is not a TAAT but that is about a horrible violent attack and this question is quite separate.

In any sexual encounter, do you have the right to expect the other person to disclose their biological sex if they visually appear to be of the other sex?

Essentially, does a lesbian have the right to be upset if the person they were female before they got naked has a penis?

Does a gay man have the right to know that someone who appears to be male has a vagina before he has sex?

Does the nature of the encounter matter? If it's a casual encounter, is the onus on the person who appears to be the other sex to come clean in advance, or is it the responsibility of the other person to check before proceeding?

To the original question:

No. It's a form of rape. Consent has to be informed consent when we are touching body parts. If I got it on with a bloke then I found it 'he' had a vagina and no dick (to be clear...that she is female), I'd be furious. I don't know what I'd do, but I really think I lose my shit. Just because they've camouflaged themselves as the opposite sex, doesn't mean I have to believe it. Not be ok with it, if they deceive someone into sexual relations.

I reckon this is all to do with the strength imbalance. I reckon I'd hit someone if they had done this to me...if I thought I had a reasonable chance of winning the fight. I don't want to agree with it, but if we switch this and a bloke sexually assaulted a women and she was strong enough to deck him, I totally would applause it. So on this...I'm get why he did it. It doesn't mean it's right but I don't know how I would react if I were him. I don't this is anything about him being scared of being called gay, he was sexually assaulted and he was angry.

@LolaSmiles

I can't believe in 2021 that free and informed consent is something people are struggling with.

Any move towards consent matters, but... is a worrying step.

This sums it up pretty well.

So many posters (women?!?) willing to attach conditions and caveats to consent. Complete with rape myths and The MRA's guide for dummies arguments.

Is that exactly what the judge said? If so, that's worrying.

Ultimately, if there is a piece of information that you suspect would make the other person change their mind about the sexual activity I believe there is a moral obligation to share that information.

ObviousNameChage
You're right. It's scary that some people actually think there is a right to sex and a right to be deceptive in order to gain sex.

Some of these posts echo some of the incel-style arguments that Laura Bates covers in her Men Who Hate Women book.

In reality every human being has the right to give free and informed to sexual activity, and their consent is not dependent on whether someone else thinks their reason to refrain from sex is good enough.

@Micemakingclothes

Ultimately, if there is a piece of information that you suspect would make the other person change their mind about the sexual activity I believe there is a moral obligation to share that information.

Except that isn't what the law says.

The explanation of consent is here.

www.cps.gov.uk/legal-guidance/rape-and-sexual-offences-chapter-6-consent

''Consent is defined by section 74 Sexual Offences Act 2003.
Someone consents to vaginal, anal or oral penetration only if s/he agrees by choice to that penetration and has the freedom and capacity to make that choice.
Consent to sexual activity may be given to one sort of sexual activity but not another, e.g.to vaginal but not anal sex or penetration with conditions, such as wearing a condom. ”
www.cps.gov.uk/sites/default/files/documents/publications/what_is_consent_v2.pdf

Consent is not given freely if its misinformed. You can't consent to something that is misrepresented. Thats probably more well understood in the context of medical consent.

Except that isn't what the law says.

It's what common decency says. If you think someone wouldn't sleep with you with all the facts, and you withhold them, that's utterly dreadful, regardless of the particular jurisdiction you happen to be in.

It's what common decency says.

The older I get the more I realise that a lot of people don’t have common decency and we need to legislate for stuff like this.

Medical consent gives a much better understanding of the term imo.

''Defining consent
For consent to be valid, it must be voluntary and informed, and the person consenting must have the capacity to make the decision.

The meaning of these terms are:

voluntary – the decision to either consent or not to consent to treatment must be made by the person, and must not be influenced by pressure from medical staff, friends or family

informed – the person must be given all of the information about what the treatment involves, including the benefits and risks, whether there are reasonable alternative treatments, and what will happen if treatment does not go ahead

capacity – the person must be capable of giving consent, which means they understand the information given to them and can use it to make an informed decision''
www.nhs.uk/conditions/consent-to-treatment/

With medical consent the bar is that medically relevant information needs to be communicated and understood. Largely it's pretty clear what things count, though sometimes there are some grey areas.

As far as sexual consent, in terms of material effects there tends to be little disagreement. Can someone become pregnant, can disease be passed on, etc.

When you go beyond that you start talking about "what matters to most people" and that's not actually quite such an objective question, is it? And it can change over time, sometimes quite a lot.

Wanting something to be a simple and straightforward legal checklist doesn't mean it will be and in general the more freedom you give people the more likely there is to be disagreement about what should be normative.

That's not trying to wiggle out of ideas of consent, that's recognising reality - and without that the waters really will remain muddy because you will have a process that doesn't work always, and so is ignored in those situations, with bad results highly likely.

Apparently in the US they have had, although it has been challenged, the "trans panic" defence where a man has attacked a trans woman saying they were deceived into believing the trans woman was a biological female.

I cant find ( and it seems it may have been in existence for over 10 years) any papers laying out the basis of this as a defence.

But have found a number of papers (mainly academic) arguing that this defence should not be allowed.

cris.brighton.ac.uk/ws/portalfiles/portal/5631913/Dude_Looks_Like_a_Lady_10.09.18_1_.pdf

www.researchgate.net/publication/323704060_Passing_and_the_Politics_of_Deception_Transgender_Bodies_Cisgender_Aesthetics_and_the_Policing_of_Inconspicuous_Marginal_Identities

www.law.georgetown.edu/american-criminal-law-review/wp-content/uploads/sites/15/2020/05/57-4-Lee-The-Trans-Panic-Defense-Revisited.pdf

Not saying any of this will change any one's personal opinion, but I think illustrates how the Judge's comments were more from their personal views, rather than what has been an area of law in practice that they should have been familiar with.

@Clymene good article out today from Julie Bindel on this subject thecritic.co.uk/issues/july-2021/when-is-a-rape-not-a-rape/

From the article:

In their 2019 paper, Dude Looks like a Lady: Gender Deception, Consent and Ethicscs_, academics Victoria Brooks and Jack Clayton Thompson argued argue that sex by deception “provides no justification why rights to privacy are subservient to corresponding rights to sexual integrity or why it is justifiable for a trans person specifically to disclose their bodily history rather than a cisperson being required to disclose their bodily history.”^
The presence of a penis is being described here as “bodily history”, as though adopting a new “gender identity” washes away the biological reality.

"bodily history" the whole smother them with words tactic is (if it wasn't so serious) enough to keep you it stitches from laughing at each new attempt to disguise what the topic actually is.

and why it isn't funny is we have seen how easily news outlets, politicians and even health providers have succumb to this.

I wonder how doctors are meant to react to not being able to name bodily parts but refer to "bodily history"! but