Sex, Gender, and the Law

Sex and gender are two terms that are subject to much confusion and disagreement. They are often used interchangeably. Sometimes simply out of ignorance, and sometimes as a political statement. Some people argue that the sex of a person determines their gender; hence distinguishing the two terms is superfluous. However, this belief has been disproved by scholars and scientists. Let’s create some clarity: according to English Law, sex refers to the biological features of a person. The four factors to consider to determine the sex are set out as (i) chromosomal factors; (ii) gonadal factors (i.e. presence or absence of testes or ovaries); (iii) genital factors (including internal sex organs); (iv) psychological factors, i.e. gender dysphoria. Conversely, gender refers to a series of social manifestations, practices, and stereotypes associated with the notion of feminine and masculine. They are influenced by the social and cultural expectations of gender roles.

Why are definitions and labels important? The state, legal institutions, and society determine what is “normal”. Consequently, they shape the lives of many individuals by categorising them as “abnormal.” The case of R v McNally is a clear example of how courts can build a narrative of what is normal and, thus, acceptable. McNally and her partner engaged in various sexual acts (N.B.: I am using feminine pronouns because McNally currently identifies as female). McNally, who at the time identified as a trans man, did not disclose her biological sex, nor did her partner ever ask about it. It is important to highlight that McNally did not claim to be female, nor did she claim being male. It simply was not specified. McNally was accused of sexual assault (N.B.: she was not accused of rape because the legal definition requires the penis to penetrate the vagina), as consent was missing. The reason why it was claimed that consent was missing is that McNally did not reveal her biological history. Hence, her partner did not possess sufficient information to give informed consent to the sexual interaction.

How do we feel about this story? Should McNally have disclosed it? And if we think she should have, what type of obligation is that? Simply moral or legal? If we start to criminalise moral wrongs, we will need to criminalise all moral wrongs. Therefore, cheating, breaking promises, revealing secrets, and more could become crimes, too.

The court regarded that McNally’s omission was more than a moral wrong, that it was a legal one. More specifically, it was regarded as a case of active deception under s76 of the Sexual Offences Act. When a person actively deceives their sexual partner about essential information, the latter is not able to consent. To consent, you need to possess all the necessary information to make an informed decision. When consent is missing, the sexual activity can be regarded as rape. This means that transsexual relations could be criminalised if sex/gender history is not revealed.

Again, how do we feel about that? If we are under the obligation to reveal our gender or sex history, what else will we have to reveal? Race, faith, and wealth? They could constitute essential personal information, too. Is there a difference between revealing such information and revealing gender/sex history? Why? Is this differentiation fair or built-in transphobia? I will not provide answers to these questions today. My objective is to present a potentially unfair case and, hopefully, invite you to reflect.