Genderfucking Non-Disclosure: Sexual Fraud, Transgender Bodies, and Messy Identities

(2018) Dalhousie Law Journal, 41(2), pp. 339-377

40 Pages Posted: 24 Aug 2019

See all articles by Florence Ashley

Florence Ashley

University of Alberta - Faculty of Law

Date Written: June 27, 2018

Abstract

​If I don’t tell you that I was assigned male at birth, as a transgender person, can I go to jail for sexual assault by fraud? In some jurisdictions like England or Israel, the answer is: yes. Previous arguments against this criminalisation have focused on the realness of trans people’s genders: since trans men are men and trans women are women, it is not misleading for them to present as they do. Highlighting the limitations of this position, which doesn’t fully account for the messiness of gendered experiences, the author puts forward an argument against the criminalisation of (trans)gender history non-disclosure rooted in privacy. Gender identity is a private matter and people should not be forced to figure it out or communicate it to others to have an intimate life. Mobilised in this context, privacy can be understood as a refusal of the state’s authority to order our gendered lives. The author argues that this mobilisation is compatible with leftist critiques of privacy. Finally, the author considers whether (trans)gender history non-disclosure is a criminal offence in Canada and concludes that it is not.

Keywords: criminal law, ​sexual fraud, privacy, discrimination, non-disclosure, human rights, transgender

Suggested Citation

Ashley, Florence, Genderfucking Non-Disclosure: Sexual Fraud, Transgender Bodies, and Messy Identities (June 27, 2018). (2018) Dalhousie Law Journal, 41(2), pp. 339-377, Available at SSRN: https://ssrn.com/abstract=3398390

Florence Ashley (Contact Author)

University of Alberta - Faculty of Law ( email )

Law Centre (111 - 89 Ave)
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

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