ABSTRACT
This chapter considers four further principled objections to the prosecution of gender identity fraud. First, the concept of harm, and the need to set appropriate limits to the degree and kind of harm necessary to warrant criminalisation. Second, the deception, at least in the present context, is not a neutral category, but rather an effect of power, one which serves to constitute epistemological and ontological limits regarding sex/gender. Third, the legal doctrine developed for the purposes of establishing, but also limiting, criminal liability for sexual fraud, namely a particular kind of act/omission distinction, lacks a principled basis. Fourth, prosecution undermines important public policy interests. Criminal prosecution implicates law in perpetuating intolerance and inequality, the very things, at least rhetorically, it seeks to counter. Accordingly, crown prosecution service (CPS) guidelines regarding sexual offence prosecution in relation to transgender suspects are especially problematic.
