What do you need to disclose for meaningful consent?

In the UK, you can legally conceal your marital status, wealth, HIV status, and age, but apparently not the gender you were assigned at birth.

The young relationship started as so many do these days — online. Thirteen-year-old “Scott” and 12-year-old “M” developed a friendship that over the course of three years and many instant message conversations, bloomed into romance. M began calling Scott her boyfriend — they even talked about getting married and having kids. After M’s 16th birthday, Scott, then 17, traveled from his home in Scotland to visit her in England. They watched a movie, kissed and, before long, things went further.

It may sound like a sweet story of teenage love — but Scott was sentenced by a court in England to three years in prison and ordered to register as a sex offender for life as a result of the relationship. That’s because Scott was born Justine McNally and assigned at birth as female. In an appeal of McNally’s sentence, which was made public late last week, a U.K. court reduced McNally’s sentence but affirmed that the 18-year-old had violated M’s sexual consent by presenting as male. It was deemed a “deception” and “abuse of trust.”

I have no idea how this kind of affront to the rights of trans* people is legal. Read the rest of the story here.

23 thoughts on “What do you need to disclose for meaningful consent?

  1. Don’t worry. I’m sure there are plenty of legislators who would love to “fix” this inequality by criminalizing the concealment of marital status, wealth, HIV status, and age.

  2. The penalty seems obviously too harsh here (in this case, I’m not sure there should be any at all) but the general issue is quite an interesting one. I briefly saw a paper on the topic (I thought it was forthcoming in the Journal of Applied Philosophy) but sadly can’t find it now. It is worth noting that in many states in the US, to not disclose your HIV status to a sex partner can be a crime. I’ll admit that it doesn’t seem crazy to me.

  3. Although this law strikes me as unreasonable, it is seems to raise genuinely interesting issues about the balance of interests between disclosures that are required for informed consent and rights to individual privacy and autonomy. Generally, I think that informed consent in sexual contexts is a very important matter, so I guess I don’t find the issues raised by such cases to be dismissible by incredulity and snark alone. If this is a clear cut outrage for others I would appreciate hearing the reasons in support of that judgment.

  4. It’s interesting that presenting as the sex one experiences oneself as being (when that’s out of line with one’s biological sex) is deemed to void consent in the eyes of the law, but posing as an activist with no family whilst being a police spy with another life is not.

  5. Thomas Mappes has given a pretty good philosophical defense of the notion of consent assumed here, namely that someone hasn’t given informed consent to sex if the person has held back sexual orientation or similar things. I don’t see why his account wouldn’t include something like biological sex at birth. Even if he’s wrong, there are arguments there to be addressed, and it’s not a completely vapid position.

    It might be important to distinguish between two theses, just to be clear what’s at issue here:

    1. It’s morally legitimate to care about what biological sex someone you’re having sex with was born with.
    2. Informed consent to sex always requires knowing the biological sex the person was born with.
    3. Informed consent might, in some cases, require knowing the biological sex the person was born with.

    I imagine a lot of people here would reject 1. If so, most cis/straight people are immoral in that respect. Not a lot of cis/straight people would consent to having sex with someone currently presenting as the opposite sex but whose biological birth sex is the same as their own. They may or may not think that’s perfectly ok for bisexuals, but they would say that it’s not for them, and they would say that someone who is trans presenting as their opposite sex is violating the informed part of informed consent if they don’t disclose that their birth sex is the same as their own.

    I think the idea is that they wouldn’t want to have sex with such a person. If sexual orientation is something we’re supposed to honor and not expect that people should have sex with those we want them to but instead leave it to them to choose their partners, can we expect them to want to have sex with those they’re not oriented toward? There are many who (whether male or female) would not prefer to have sex with a man, and they would (rightly or wrongly) consider someone a man who was born biologically male, even if they consider themselves female, and perhaps even if they had surgery to present more biologically as male. View 3 doesn’t require that such a person’s judgments are correct. All it requires is that they have a right to refuse sex with such a person, even if their moral understanding of those issues is skewed. And I think it would be hard to refuse them that right if we generally allow people to choose their sexual partners according to standard sexual orientation analyses without the trans issue entering into it. It may be possible to come up with a theoretical basis that gets around this, but it would take some work. So I’m not sure it follows even from the wrongness of such a law that someone has to be thoroughly anti-trans to support such a view of informed consent.

    The question in these laws is not whether 1 is true. It’s not even whether 2 is true. 1 and 2 might both be false for a law like this to be legitimate. All that this law requires is that there be some people for whom informed consent is violated if they end up in a sexual encounter with someone they wouldn’t consent to have sex with if they knew. Even if that’s not the correct analysis of informed consent, I think it’s important to distinguish it from those who think 1 and/or 2, neither of which is necessary for justifying a law like this.

    Completely separately, I’m curious why anyone would think it’s remotely plausible that informed consent is compatible with not disclosing HIV status, at least in a case of unprotected sex. It strikes me a obviously criminal to know you are infected with HIV and have sex with someone, at least any kind of sex where there’s a risk of the virus spreading, if you don’t inform the person of the risk. There are certainly sexual acts that wouldn’t require that consent, but if the question is whether there are any cases where HIV status disclosure is morally required for consent to be informed, it’s hard to argue that there are none.

    Or was the suggestion that thinking (a) informed consent for sex requires disclosure would lead to (b) disclosure should happen even when there’s no sex going on? That would be pretty stupid, but I’d be a bit shocked if anyone tried to implement laws requiring public disclosure of any of those things, certainly not simply because there are laws requiring disclosure for sexual consent.

  6. Prax, I don’t see how setting a precedent for convicting trans* people for presenting as they identify is anything less than clearly meriting outrage. The point is, if someone identifies as male, how is it deceptive to present as male? Is it likewise deceptive to not disclose if you were born with CAH?

  7. Actually, although the discussion about women deceived by police spies originally talked about the voiding of consent, I see that the grounds for court cases was contravention of the human right to private and family life.

  8. In any case, I hope we can all agree that singling out gender presentation like this is discriminatory.

  9. Woah there, folks. I think before we go too far into the issue of informed consent, we should keep in mind that there are two distinct issues here:

    1. What do you need to disclose for proper informed consent?; and
    2. What should the law *require* you to disclose for proper informed consent?

    Even if we conclude that trans* folks should disclose trans* status (which is far from clear, and may depend on safety issues), it doesn’t follow that the state should lock anyone up if the trans* person does not do so. If we think about it hard enough, I’m sure we can come up with plenty of cases of sex that doesn’t meet the gold standard of informed consent, but for which no one ought to be locked up by the state.

  10. I don’t see that anyone has suggested the current legal situation is justified, just that the issues raised should not meet with casual dismissal. I share the opinion that locking someone up in a case such as this is not appropriate, but I’m not sure that this follows from any general position about the irrelevance, legal or otherwise, of disclosure for sexual consent. I’m sure we can also come up with plenty of cases where nondisclosure and/or deception is sufficient to rule out informed consent in such ways that we do find legally relevant. I guess one question could be, as Kathryn suggests, whether nondisclosure of trans* status could ever be considered deception, and I can imagine situations where it pretty clearly is not. In this case, where we have a 17-year-old presenting as male who had talked about wanting a sex change, it’s not at all clear to me that informed consent is possible without disclosure.

  11. I hope there aren’t the same laws in states where panic defenses fly: if I tell you I’m trans*, you can kill me and get a lighter sentence, and if I don’t then I can be convicted of sexual assault. Awesome.

    Does anyone know what the test for consent in the UK law is? If it’s just ‘must disclose factors that would plausibly result in non-consent’ then HIV status seems to fail it in a lot of cases, surely. I’d also be interested to know how the law would deal with an analogous case of a person of color who knew they had been mistaken for a white person before having sex. If you happen to be in a pretty racist state (and the person you had sex with turned out to be a white supremacist), should you potentially be put on a sex offender’s register for that? It seems bad to do this when the main cause of the harm is an attitude that we wouldn’t want to endorse.

  12. I had the same thought as A regarding a person’s desire not to have sex with a person of color.

    Even if we put aside legal considerations and speak only about the moral side of things, what do we really want to say about the kind of information that is relevant for informed consent? Is it *anything* whatsoever that the person whose consent is at issue cares about no matter how immoral (i.e. not wanting to have sex with a person of color) or trivial (i.e. (not wanting to have sex with a person who was born on an odd numbered day of the month) the consideration?

    In skimming some of the Mappes article (“Sexual Morality and the Concept of Using Another Person”) which I assume Jeremy Pierce is referring to, it seems Mappes mostly only brings up non-trivial and non-immoral cases –a desire to only have sex with one who loves you, to use birth control, to not be exposed to STDs, to not have sex with someone who is romantically involved with your sister. One puzzling outlier, though, is the example dealing with sexual orientation: one woman is interested in a “stable lesbian relationship” and won’t consent to sex with a bisexual woman. The other woman, a bisexual, claims to be completely homosexual thus, according to Mappes, undermining the informed consent of the first woman. I’m unclear here whether we are supposed to think (a) or (b). (a) we are supposed to take the first woman to be horribly biphobic (apparently assuming that a bisexual cannot maintain a stable relationship with another woman), but Mappes believes even deception with regard to immoral considerations undermines informed consent. (b) we are supposed to think this kind of thinking about bisexuality is morally acceptable in the first place (in which case the author would seem to be exhibiting biphobia)*.

    I’m not completely sure what to think about (a) or (b), but the fact that all the other examples seem to be ones in which the consideration is not morally problematic makes me assume (b). At least, this seems an odd choice of examples to use if one is deliberating trying to make the point that immoral considerations still matter in terms of informed consent.

    I don’t know about others, but my intuition that one is morally required to disclose is much less strong when it comes to immoral or trivial considerations.

    * To be charitable, perhaps Mappes is mixing up bisexuality and nonmonogamy? Perhaps he meant to include an example in which one woman only wants to have sex within a context of monogamy and the other woman (knowing the intentions and desires of the first) refuses to commit to monogamy but lies or fails to disclose this when having sex with the first woman? (This doesn’t seem very exonerating though–there is quite a HUGE difference here and it seems such a mix up would still come down to one having some worrisome misconceptions about bisexuality.)

  13. Yes, that’s the Mappes article I had in mind. One possible explanation for her not wanting to have sex with someone who is bisexual is if she thinks sex with men is immoral, as some radical feminists have claimed, and she wouldn’t want to have sex with someone who engages in such behavior. Another is that she thinks she’d be opening herself up more to certain diseases, and her reason for lesbianism is to protect from such diseases.

  14. I’m not wild about discussing those of us who are bisexual in this context either, but I think commenters are casting about for the rational of consent-legislation with which they are familiar, and HIV-related disclosure is that with which they are familiar.

    Having done my charitable bit here, though: Let’s move along and talk about the post, the original post.

  15. Do people treat being HIV positive and being trans as analogous here? I’m tired so I could have missed it, but I thought that people were discussing the HIV example because allowing someone not to reveal HIV status seems like it undercuts a potential (if problematic) justification for requiring revealing that you’re trans. But the former is still a very different case from the latter, since any harm in the latter seems to be the result of bad attitudes whereas the latter doesn’t. HIV status could fall into the bad attitudes category too, of course: someone might not worry about getting HIV but just not want to have sex with someone who’s HIV positive. But in the HIV case it seems like the attitude needn’t be bad, but could just reflect a desire not to take certain health risks.

  16. Here’s a better analogy, I think: if you don’t need to disclose that you’ve had a hysterectomy (or, say, a vasectomy) before you have sex, you don’t need to disclose your trans status.

  17. I definitely don’t disagree that there are more analogous things to trans status, but I think HIV is being used as a kind of counter to the underlying principle rather than an analogy in this case. I think a better analogy than having had a vasectomy, say, might be something like being Jewish. It’s not like there’s a really harmful dislike of people who have had vasectomies in society, but there is such a feeling against Jewish people and trans people. It seems like we should be even more worried about policies that might be seen as legitimizing that kind of attitude, because the risk of harm is greater (an arbitrary law requiring that you declare your vasectomy status seems way less harmful to me than one that requires you to declare your religion, race or trans status). It also seems pretty clear that if we put a Jewish person on the sex offender’s register in similar circumstances, people would and no doubt should be more pissed off than in the vasectomy case I think.

  18. Yes, I think that’s right, for the most part. The reason for the vasectomy/hysterectomy cases is that people often attempt to problematize being trans by connection to a lack of reproductive capacity. (And, of course, it’s often ultimately rooted in transphobia and gender essentialism.)

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