Epistemic Domination and ‘Gender Identity Fraud’ Prosecutions

ABSTRACT

By analyzing the so-called ‘gender identity fraud’ cases of recent years in Great Britain, I will show that these cases fall outside Miranda Fricker’s theoretical framework of epistemic injustice. In building on Talia Bettcher’s work on the deceiver and pretender stereotypes of trans people, I will provide an analysis of the convictions and argue that these cases are examples of epistemic domination. First, I will argue that testimonial injustice as a concept is inapt to explain why the consent given in these cases was considered vitiated in the trials. Second, I will show how hermeneutical injustice falls short in elucidating the power structures at play and obscures our understanding of the possibilities and responsibilities of the respective epistemic agents. Moreover, I argue that these cases are morally and politically wrong because these convictions create a legal double-bind for trans people. At the end of my discussion, I develop the concept of relational epistemic domination, which is suffered by partners of trans people and which might affect the complainants in these cases. I will conclude that states must refrain from prosecuting gender identity fraud, and to theorize similar cases adequately, we must do so as cases of epistemic domination.

KEYWORDS:

• Epistemic injustice
• trans people
• consent
• sexual deception

Acknowledgments

I wish to express my gratitude to Christine Bratu. I am likewise grateful to Mari Mikkola, Daniel James, Heiner Koch and Odin Kröger for all that I have learned from them. I would also like to thank two anonymous reviewers for their useful feedback, which no doubt improved this paper.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1. Unfortunately, I can not argue for this in more detail here, but see, for example: Ayala and Vasilyeva (2015), Fausto-Sterling (2000) and Richardson (2013).

2. For more information on legal gender recognition in different states and the requirement of mental health diagnosis, see: ILGA Database World Legal Frameworks, TGEU Rights Map and Kara (2017).

3. I could not obtain information about their race or disabilities.

4. Until now, no assigned-as-male person has been prosecuted for gender identity fraud.

5. Unfortunately, there are more cases than I am discussing because new cases have been brought before the courts. Moreover, there have been earlier cases in Israel and the US; for a discussion of those, see Gross (2009).

6. On gaslighting, see McKinnon (2017), Riggs and Bartholomaeus (2018).

7. Recent anti-trans-rhetoric targeting afab trans children, their caretakers, and schools arguing that identifying as trans is a new socially contagious phenomenon, to which particularly autistic children and those with mental health issues are receptive, has complicated and for many trans children worsened the situation by successfully pushing against trans affirmative care and calling for restrictions to the access of knowledge about trans issues. For more information about this, see, for example, Walsh (2020) and Hymas (2023).

8. It should be noted that this critique goes far beyond the kinds of testimony discussed here and also applies, for instance, to many testimonies in healthcare settings, testimonies on war crimes or genocide as well as testimonies about sexual violence, including rape, especially from adult survivors of sexual child abuse.

9. For a brilliant discussion of how misleading epistemologies are that rely solely on judging according to the available evidence in an unjust world, see Dotson (2018).

10. For more details about the changes in the law and its bearing on the interpretation of such cases, see Alex Sharpe (2018).

11. Different sources give conflicting information about the age of the two complainants and point out that one lied to Wilson about her age. However, at least one of the girls might have been 15 and thus under the age of consent, which raises additional moral and legal questions, which surprisingly have not been addressed by the court. I want to state clearly that I in no way want to defend or condone sexual relations with minors. For this reason, I also excluded another case that was prosecuted as gender fraud in 2017 from my discussion.

12. In discussing a case of severe medical negligence of a trans man, Radi and Rimoldi (2022) make a similar argument against the application of hermeneutical injustice. They also argue that there was no missing resource and that he was able to understand his pregnancy and should have been treated accordingly.

13. Several authors have already discussed various reasons for this lack of distribution. For instance, Medina’s (2013) and Dotson’s (2012, 2018) discussions would be a great starting point for developing a structural account of epistemic domination. Moreover, since various theories of domination have already discussed epistemological questions, a theory of domination would unify their thoughts into a coherent theory.

14. This shows that these cases are also distinct from cases Medina (2013) discusses as active ignorance, where distorting scripts in the social imaginary limit or block the hearer’s ability to ponder the available evidence fairly because the dominant script for a court would be to recognize the diagnosis and inform the person how to apply for legal gender recognition since they fulfilled the requirements.

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Resa-Philip Lunau

Resa-Philip Lunau (he/him) is a lecturer at the University of Göttingen. He received his M.A. in Philosophy at the Free University Berlin in 2017 and his Bachelors in Cultural Studies and Philosophy at the Humboldt-University Berlin in 2012.