The Trouble with Transgender “Rapists”
This chapter surveys several cases of transgender men or butch women being convicted of sexual misconduct for deceiving their partners as to their assigned sex at birth. The conviction and categorization of this sexual conduct as sexual offense is troubling and wrong. These transgender “rapists” are not rapists, the sex is not sexual violence, and consent is not necessarily polluted by the undisclosed absence of a penis, the fact upon which most such cases and convictions rely. At the same time, these cases dramatize a central problem of consent’s scope: what do we consent to when we consent to sex? In this chapter, I propose that the deliberate contravention of an explicit conditional to sex should be a legal wrong and that such a narrowly tailored solution to the problem of sex-by-deception best protects sexual and gender minority defendants from phobic juries and judges while also facilitating sexual autonomy.