Legal transphobia

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Dear Lothian and Borders Police,

I hear by request the following information under HM.Freedom Of Information (Scotland) Act 2002.

A) A Full list of all 'crimes' were a person can be arrested for c 'Obtaining sexual consent by deception' by not corresponding to there 'presumed gender' and 'seducing' the other by 'appearing as if they were the opposite gender' of the other who gives consent.

B) Information and guidance on how these so called laws actually do not persecute the transgender community when they choose to identity as there preferred gender and do not declare there previous gender while engaging sexually with another adult.

To be frank can the force tell me what safe guards are in place to protect people who identity as there preferred gender during sexual relations and refuse to declare there previous birth gender; from being persecuted by a person who may be suffering from self guilt for consensually falling in love with a trans person and just wants them jailed.

There are people out here who were born a certain gender but change then seek a person who is there birth gender but not there preferred gender. In other words:

Explain to me how this can be fair on the trans community when:

Jane is born Jane and has sexual relations with heterosexual males.
Then changes from Jane to John and seeks as always heterosexual males, or God forbid also finds they are attracted to heterosexual females and seeks those.
John has a deep sense of there own dignity and privacy and dose not wish to devalue there knew found gender perception by detailing all there medical history to said partner.
Partner falls in love and has sex.
Partner finds out John used to be Jane and feels revulsion.
Partner claims consent was not ‘REAL attraction’ but they were duped.

John ends up arrested.

John feels very upset because the police have arrested him for ‘obtaining sexual consent by deception.’

The law has changed but somehow the John the transman is in jail for being john the transman.

Yet again transphobia seems to be rearing is ugly head in the circut.

I want an answer to this and I think so do the public.

Thank you


Dear Lothian and Borders Police,

'' Scottish trans people are obtaining sex by deception ?

A 25-year-old woman has appeared in court accused of tricking two women into sexual contact – by pretending to be a man.

Firstly, the obvious: a “woman pretending to be a man” could well be a transman but however they identify, it’s likely they’re on the Trans spectrum somewhere.

Secondly, even after an hour of searching through statute and case law, I can’t figure out what the person accused of this offence is actually guilty of. The case is in Scotland which has different laws from England and Wales and there is a history of “Rape by Deception” in case law, but nothing I can find written down. (If it was England or Wales, it would probably be Section 36 if the other party had mental health troubles) The article says the other people involved “cannot be named for legal reasons”, which would suggest something unusual.

It may be that it’s been misreported by the BBC and the “deception” isn’t relevant to the actual offence but whatever the specifics, this is quite worrying. '' - A Human Rights Watchdog.

Im not the only person concerned about these laws

Lothian and Borders Police

Dear Mr McLean


Thank you for both your email received 02 August 2012 seeking information. I have provided a response to both your emails in this one email.

Please note, the following response is based around a transwoman, however the same legislation and reasoning is applied if it were a transman.

The Sexual Offences Scotland Act 2009 details legislation, which covers crimes of a sexual nature in Scotland. Below is a copy of part of the act section 13, subsection 2(d) as detailed below covers the issue of obtaining consent through deception. This provision is intended to cover situations such as where a person is deceived into thinking that they are consenting to undergo a necessary medical examination or an authorised strip search when actually that is not the real nature or purpose of the activity and the perpetration is actually sexually abusing them. The provision is not intended for use in relation to situations where a woman who has undergone gender reassignment from male to female exerts her right to privacy about her gender reassignment history. There is no legal requirement for a person to reveal their gender reassignment history to a sexual partner. Additionally, the act clearly defines in section 1, subsection 4(b) that a surgically constructed vagina is to be regarded as a vagina.

Likewise, section 13, subsection 2(e) is intended to cover situations where someone is actually impersonating another person known personally to the victim and is not intended for use in relation to situations where a person has simply changed their name and gender as part of a process of gender reassignment.

Sexual Offences Scotland Act 2009;

13 - Circumstances in which conduct takes place without free agreement
(1) For the purposes of section 12, but without prejudice to the generality of that section, free agreement to conduct is absent in the circumstances set out in subsection (2).
(2) Those circumstances are-
(a) where the conduct occurs at a time when B is incapable because of the effect of alcohol or any other substance of consenting to it,
(b) where B agrees or submits to the conduct because of violence used against B or any other person, or because of threats of violence made against B or any other person,
(c) where B agrees or submits to the conduct because B is unlawfully detained by A,
(d) where B agrees or submits to the conduct because B is mistaken, as a result of deception by A, as to the nature or purpose of the conduct,
(e) where B agrees or submits to the conduct because A induces B to agree or submit to the conduct by impersonating a person known personally to B, or
(f) where the only expression or indication of agreement to the conduct is from a person other than B.
(3) References in this section to A and to B are to be construed in accordance with sections 1 to 9.

The laws are there to protect people from being deceived into having sexual intercourse. In order to prove this charge the police have to investigate each case on an individual basis. They have to prove a course of conduct by the suspect to show that they have set out to deceive the complainer in order to have sexual intercourse with them. As mentioned above a woman is not being deceitful if she simply chooses to uphold her right to privacy about her gender reassignment history in relation to a sexual partner.

If you have any questions about the above or I can help in any other way, please do not hesitate to get in touch with me again. However, under the Freedom of Information (Scotland) Act 2002, you have the right to appeal if you are dissatisfied with the way in which we have dealt with your enquiry. This should be done within 40 working days of receiving this email. If you wish to appeal please contact Rachel Watson, Head of Force Information Unit, Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh, EH4 1RB. Please note that subsequent to this internal review there is a right of appeal to the Scottish Information Commissioner, Kinburn Castle, Doubledykes Road, St Andrews, Fife, KY16 9DS.

Yours Sincerely

Paul Wallace
Force Information Unit
Lothian and Borders Police

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Dear Lothian and Borders Police,

I dont know, Scotland along with the rest of the UK seem to be going backwards in regards human rights. I of course, accept your point that there are legitimate premisis that invaldate sexual consent. However the laws not just on sex and gender in the UK can be abused very easily by the government of the day.

Sounds like Ecudore, like the vatican have just found us human rights impoverished.

I consider this FOIS request closed.