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Teen Gets Jailed, Registered as Sex Offender for Having Sex with a Female While 'Pretending' to Be a Boy

Does gender matter when it comes to sexual consent?

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’ll be referring to McNally as female from here on out because that appears to be how she currently identifies. As the court ruling put it, though, she had a history of “self-harm” and “confusion surrounding her gender identity and sexuality.” McNally also told police that she took on the identity of Scott online — at the pivotal age of 13 — “because it made her more comfortable,” according to the ruling. Regardless of how McNally identifies, this case could be significant for those who identify as transgender — as well as those who are exploring their gender and sexuality. That’s because it sets a possible precedent in the U.K. for prosecuting people for failing to announce before a sexual encounter the gender they were assigned at birth.

Matt Kailey, author of “Just Add Hormones: An Insider’s Guide to the Transsexual Experience,” points out the potential challenges that could arise. He asks, “What happens if a person who does not identify as ‘trans’ in any way is accused of being so … because his penis is too small for his sexual partner’s tastes or her breasts are too small or not the right shape for her sexual partner’s tastes? What about a person whose genitals do not meet the ‘standard’ appearance that society expects for male and female genitalia?”

This case also brings up dystopian images of couples breaking out pre-coital legal contracts that map out their every sequence of DNA. Jennifer Finney Boylan, a director of GLAAD, tells me, “What else do people want before falling in love, a birth certificate and a set of fingerprints?”

Previous U.K. cases have found that concealing one’s marital status, wealth, age or HIV diagnosis from a sexual partner does  not invalidate consent. “It is unclear why being trans would be singled out as an exception to this, other than blatant societal transphobia,” says  Julia Serano, author of “Whipping Girl: A Transsexual Woman on Sexism and the Scapegoating of Femininity” — or homophobia. As Jane Fae  wrote in the NewStatesman: “The only thing that really seems to vex this bunch of middle-aged blokes is being misled over gender, which must raise questions as to why such fears,” she writes of the recent ruling. “Is this, as they remark, merely ‘a broad commonsense way’ to deal with ‘evidence relating to “choice” and the “freedom” to make any particular choice.’ Or is it delicately muffled — and bewigged — homophobia?” (She also wrote that “the law in relation to intimate consent” is “an unholy heteronormative, patriarchally-inspired man-protecting mess.”)

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