The issue of consent is of key importance in criminal law sexual offence cases. In some countries, sexual consent can be vitiated by ‘sexual fraud’. In these cases, the victim was deceived by their sexual partner to have sex, as they did not know or were lied to about a fact that was relevant for them before  consenting to the sexual intercourse.

​One specific form of ‘sex by fraud’ is ‘gender identity fraud’. In the cases that I have studied, the (female) victim has had sexual intercourse with the defendant but later retracted their consent to sex after finding out that  their partner was a female to male  transgender (FMT). Transgender people have been convicted for sexual offences in the UK, Israel and the USA. This paper researches whether the current human rights framework is able to protect transgender persons from gender identity fraud conviction in domestic courts.

Evidence for practice

• Conviction on the basis of ‘gender identity fraud’ appears immoral and contrary to existing transgender protection laws;
• Transgender persons who are prosecuted and/or convicted for sexual offences on the bases of  gender identity fraud, should be protected by higher human rights courts as the HRC or the ECtHR;
• Countries should put the conviction of transgender persons for gender identity fraud higher on  the agenda and condemn these convictions more openly.

Keywords: human rights law, gender, identity fraud

Citation: Kolen, E. (2021). (Trans)Gender Identity Fraud And Human Rights Law: Is human rights law able to protect transgender persons from domestic ‘gender identity fraud’ prosecution and conviction?. Public Note, URS

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Elise Kolen

“My name is Elise Kolen and I’m currently undertaking the LLM European Law at Utrecht University. I first came across the topic of my article while I was following a criminal law course at Cambridge University during my Erasmus+ programme. It sounded very unfair to me that transgender persons should be afraid of being convicted for this type of sexual offence. That’s why I wrote my bachelor thesis on this topic and eventually this article!”