ABSTRACT
This chapter offers four principled objections to prosecutions for gender identity fraud. First, prosecution for deception constitutes significant criminal law overreach. Second, the framing of 'sexual autonomy' as a non-negotiable right will be contested. Third, the legal determinations as to the materiality of facts, and therefore as to the demarcation of one of the boundaries of consent/non-consent, produce legal inconsistency and are potentially discriminatory. Fourth, the decisions to prosecute fail to consider, or weigh properly, other important rights and interests. In any event, liberal privacy, despite its considerable baggage, offers itself as a ready-made right to which defence lawyers can appeal, and is one more likely to resonate with the judiciary. Kendall Thomas argues for recognition of a right to corporeal integrity as a kind of a priori right. The chapter focuses on the Article 8 right to privacy, although other rights arise in contexts of sexual intimacy.
