Content warning: This article deals explicitly with issues relating to transgender sexual assault and reports of official guidance which may be expressed in language that readers may find upsetting.
In the first of a proposed series of articles looking at the impact of anti-trans changes of legislation or guidance in England and Wales, we investigate what went on during the first year after the Crown Prosecution Service (CPS) issued their ‘deception as to sex’ guidance in December 2024.
This has been a lengthy and difficult investigation, which yielded very little usable data, but some particularly concerning findings.
Note: the views reflected in the CPS guidance and discussed in this article may be distressing. In particular, the guidance views transgender status as a de-facto deception: ie a person who has not disclosed that status prior to consensual sex can subsequently be accused of rape. We strongly disagree but, in order to ask questions of police forces and the CPS, we can only make queries in relation to the wording of the guidance as it stands.
CPS guidance on ‘deception as to sex’
The CPS’s own summary of the guidance is as follows:
- In line with the law on consent – charges will depend on whether a victim was aware of the person’s birth sex and therefore consented to sexual activity by choice. The suspect must also have reasonably believed consent had been given.
- It also clarifies that a suspect may deceive a complainant as to their birth sex if they choose not to disclose their sex or trans identity. It also clarifies there is no expectation for a complainant to confirm the sex of the defendant prior to sexual activity.
- Not every situation where a trans or non-binary person fails to disclose their sex will involve a criminal offence – each will be assessed on a case-by-case basis.
Criminalisation of transgender bodies is not new
First, a very important piece of context: while there had not previously been any specifically anti-trans legislation or guidance on so-called ‘deception as to sex’ in England and Wales, 1991 saw the first known prosecution of someone who is likely to have been a trans-masculine individual, Jennifer Saunders, who was said to have used a ‘fake’ penis with partners who were expecting a real one.
The second case was the prosecution of Gemma Barker in 2012. According to Professor Alex Sharpe, this was ‘the beginning of a disturbing pattern of successful prosecutions’ which seem to have loosely progressed at the rate of one per year.
An attempt to gather prosecution information draws a blank
To try to find out more about prosecutions that may have taken place under this guidance, we sent a Freedom of Information (FOI) request to all 44 police forces:
“This request is further to the Crown Prosecution Service (CPS) press release published on 13 December 2024 about an update to prosecution guidance which clarifies the law on when deceiving someone or failing to disclose birth sex could affect consent in rape cases – link below.
For the period of December 2024 to December 2025 and in relation to rape where consent was affected by a failure to disclose birth sex or transgender identity, please can you provide the following information:
Number of crime reports
Number of incident reports (if held)
Number of people charged to court
Number of people convicted (if held)”
A similar request was also sent to the CPS, in the hope that we might be able to get more specific information on convictions and where they had occurred.
Almost all of the force areas that responded refused the request as a Section 12 cost exemption, as there is a maximum limit of £450 for each request. Their claimed reason for this was that there is currently no tag, flag or marker that can be used to find cases where the ‘deception as to sex’ guidance is in play, meaning that force areas would have to manually look through all rape allegations for the requested period.
While unhelpful in terms of getting information, this is a legitimate reason for refusal under the FOI Act.
Some areas either confirmed that it would exceed cost limits to tell us if they held the information at all, or said that there was no shorter period for which they could give information that would be within cost limits.
West Mercia Police informed us that in “a cursory keyword search of the incident summaries, 65 contain the word ‘Trans’, none of which are relevant to enquiry.” The British Transport Police answered to say that they did not understand the question. The CPS also responded to say that “we do not believe there is any practical way in which your request could be modified to bring it within the cost limit.”
Prosecutions for ‘deception by sex’ apparently not rife
We sent a revised FOI request to the remaining 29 force areas, modifying it to a request for information for February 2025 only. Just under a third of these refused the request as a Section 12 cost exemption a second time. Greater Manchester Police replied to simply say “No results for ‘transgender’ or ‘sex change’”. Devon and Cornwall Police said, “a keyword search for ‘transgender’ in the MO and Summary text was a Nil return.”
10 areas gave a nil return for February 2025, which is to say that there were no cases found by them during that period.
While this does at least assure us that prosecutions under this guidance are not rife, it’s a very small snapshot to draw any conclusions from and may be limited by inadequate search attempts by the police forces and CPS.
So far, the only documented prosecution under this guidance is trans woman Ciara Watkin. She was jailed for sexual assault in October 2025 and also put on the sex offenders register, after a man she performed oral sex on claimed he would not have consented had he known her transgender status.
A disturbing suggestion of possible trans victim blaming
The Metropolitan Police responded to the original query with a question: “Are you asking if the perpetrator or victim failed to disclose birth sex?”
This could be read to imply that action might be taken against a transgender victim of rape, which is troubling. We responded to ask if it was envisioned that action would be taken under the ‘deception as to sex’ guidance against victims of rape.
To their credit, they responded around a month later to say that “I can confirm that the Metropolitan Police does not seek to take action against victims of rape following publication of the CPS ‘deception as to sex’ guidance.”
As we were somewhat concerned about this issue, we had in the interim tagged an additional question onto requests for information for a shorter period of time, reading: “Please could you also confirm for me if it’s planned to apply the guidance on ‘deception as to sex’ where the victim of rape has failed to disclose birth sex or transgender identity? I ask this only because other force areas have suggested that may be the case.”
This was sent to 23 force areas.
A worrying lack of push-back as to whether the guidance applies to victims
Nine police forces did not give an answer to our question.
The replies that we did receive (see table below) were almost all either completely non-committal or gave no push-back against the suggestion that a consideration of ‘deception as to sex’ might be applied to an allegation of rape.
There is no evidence in the limited data that we hold to suggest that police have to date used this guidance against trans victims of rape: that is clearly something to monitor going forward.
No policy statements yet from rights organisations
A draft of this article and its findings was sent to human rights group Liberty. At time of publication roughly two months later, Liberty had not replied despite several more attempts to contact them.
We did speak at length to a representative of a well-known trans rights organisation who gave us some useful leads, but also advised that they currently have no policy statement on this matter.
There are a couple of very good reasons why it might be wise to not have a policy statement. Firstly, the guidance is relatively new and there is a lot of opacity as to how it is being applied; indeed, this may be the first attempt at a serious piece of research on the matter. Secondly, the way that the guidance frames non-disclosure of trans bodies as a de-facto consent violation is intrinsically discriminatory, and creates an additional vulnerability for trans people especially in conjunction with the lack of clarity on how it is being applied.
We firmly believe that living as your authentic self is not an act of deception, yet the guidance seems not only to permit but to encourage the opposite interpretation.
Where do we go from here?
We have started a petition to request parliament to modify the guidance to include putting a tag or marker on prosecutions that happen under it. Despite some risk of misuse, this is the only way that the trans, non-binary, and intersex community is ever going to be able to get usable data on how this guidance is being used.
Given that there is still so much that we don’t know, this is a subject matter that will certainly need monitoring and revisiting again in the near future.
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