Today, a young transgender man, Kyran Lee, received a two year suspended sentence after being convicted in 2014 of one count of sexual assault by penetration on the basis of “gender fraud.” He is the fifth young LGBT person to be prosecuted for and convicted of so-called “gender fraud” in the UK since 2012. The reason for this recent spate of criminal prosecutions of LGBT youth is unclear and calls for rigorous analysis in its own right. What is clear, is that while these prosecutions have some support, they do not accord with general community sentiment concerning the meaning of consent and the proper reach of criminal law. Indeed, the point can be put more forcefully given public disquiet, nay outrage, following Gayle Newland’s recent conviction and eight year sentence. In the wake of the Newland case, Kyran’s sentence comes as something of a relief. However, Judge Michael Heath made clear he would have imposed an immediate prison sentence had he found Kyran’s motive to engage in sexual intimacy to be one of sexual gratification, rather than the avoidance of rejection and relationship breakdown. Accordingly, and importantly, it should not be thought that sentence leniency followed from recognition of Kyran’s gender identity.
While all of the so-called “gender fraud” prosecutions are disturbing, this is especially so in the case of Kyran Lee. This is because his prosecution reveals more clearly than most earlier prosecutions how the state literally refuses the gender identities of transgender people or, at least, allows them to be trumped by cisgender complainant understandings of gender. In all of the five cases successfully prosecuted (R v Gemma Barker [2012], R v Chris Wilson [2013], R v Justine McNally [2013], R v Gayle Newland [2015] and now R v Kyran Lee (Mason) [2015]), female complainants claimed to believe that their object of desire was a man and conviction rested on a legal conclusion that there was a gap between belief and reality. Putting to one side the rather fanciful stories put forward by the complainants, and the suspension of judicial and/or jury disbelief that conviction necessarily required, let us look more closely at legal acceptance of a gap.
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