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Disclosure And Material Information

November 3, 2009

Over at Feministing Community, there is a thread about trans folks, disclosure and consent . I find much of the comment thread upsetting. Obviously there is a lot of transphobia, but also a lot of misinformation and assumption.

I’m not going to trans 101 here, mostly because that’s not the purpose of this thread but also because I’m not qualified. What I want to do here is set out a view that covers most information about one’s sex partners. Some may disagree, but I think it’s a very useful view.

I’ll borrow a concept from law here: materiality. In securities law, “material” is that which a reasonable person would think it important to know, as part of the total mix of information, in making a decision.*

When folks enter into some kinds of transactions, certain information will always be material. But a lot of information may be material to one person in some circumstances, and not to another person or in another set of circumstances.

(I’m not really talking about dating — the whole process of dating is getting to know someone. I’m talking about the more casual ends of the spectrum of partnering for sex, ranging from anonymous and near-anonymous to longer-term arrangements.)

I don’t think sex should be a transaction. I think it should be an interaction. But when we engage with sex partners, each of us is in a different situation, with different wants, needs, likes and dislikes. Our potential partners don’t know what those are. They don’t know what is material to any potential partner. They can guess, but they don’t know. So they can’t know what I want them to disclose.

The possibilities are endless! Do I draw political lines and refuse to be sexual with conservatives? (Yes, in fact, I dumped a recurrent partner for that reason once.) Does it matter to me if my partners have preferences for certain kinds of sex? Do I care if my partners are unattached? If a casual partner is married, is that a dealbreaker? Or is it a dealbreaker only if ze is lying to zir spouse? Or one factor among many that I want to consider? Or if it’s a one-time thing do I not give a rat’s ass?

If my partners had to cover all bases of disclosure, they would have to hand me a fifteen page informed consent disclosure. (Ever see a public company’s annual report? With attachments, often 100 or more pages, sometimes much more.) In reality, what will happen is that people will disclose what they think most of their partners want to know; and whether that suits me or not will depend on how well I fit that mold.

If I want to get the information I need, I’m going to have to ask. Is my partner okay with penetrating me? If I want to know, I have to ask. Are my partner’s politics a problem for me? If I want to know, I’m going to have to ask. Is my partner cisgendered? If I want to know, I’m going to have to ask.

Back to the Feministing thread, and to clear up what should be rudimentary misconceptions and assumptions: not all trans people have had genital surgery, but some have. Some trans folks have genitals that match their identity, some don’t. Not all folks whose genitals vary from the expectations of their sex identity are trans. Folks have all kinds of genitals for all kinds of reasons. Not every sex act involves all participants’ genitals. Biology does not equal identity.

Which of these things matters, and how much? Well, that’s entirely subjective. For my part, I’ll say that identity matters to me, history and anatomy don’t. So a disclosure to me about trans history by a partner who lives as a woman with female genitals would be an irrelevancy; a disclosure by a female partner with a penis might be information I would get anyway, or might not, and wouldn’t matter. The one thing I care about, I’ll admit, is that it would mess with my head to be sexual with someone who identified as male — regardless of anatomy. That’s not merely academic: since I’m attracted to butch specifically and genderfuck in general, it’s not inconcievable that at some point I’ll find myself moving towards some kind of sexual play with a person whose gender identity isn’t clear to me. Probably by then I’ll know a name and preferred pronoun from which I can determine identity — but if I can’t, I’m the one who knows it’s important to me, so I’m the one that ought to ask. If I’m into it enough to play with a someone who I find attractive and who is male, I’m an adult and I’ll deal with whatever emotional stuff I may have about that; and if I really need to know that if I play with someone who is in some way gender-ambiguous that ze identifies as female at the time so I can keep some arbitrary benchmark of straightitude (too late anyway; I have not met a strict gold-star hetboy test since high school) then it’s on me to find out — and if it’s awkward to ask, it has to be a lot more awkward for my partner to raise it.

I can’t know in advance what people want to know about me, either. If someone doesn’t want to be sexual with lawyers … who am I to say that’s a silly rule? My age, my number of sex partners, the part of the country I’m from … things that I’d never guess could be a dealbreaker for someone, so if they want to know, they need to ask.

The comments on that thread make clear to me another problem with inventing affirmative disclosure obligations. It defines an implied norm. Cis folks say trans folks should disclose, het folks say queer folks should disclose, able-bodied and neurotypical people say the disabled and non-neurotypical should disclose. And the people with the privilege get their comfortable assumptions and do no work and everyone else goes out of their way not to discomfit the lease-discomfited. Again.

For public health reasons, there is one major exception that I think is almost always material information: sexually transmitted infections. Whatever other issues I have with a sex partner are between me and zir. But infection has epidemiological implications. I know some folks disagree and want universal protections and no disclosure; that’s not my view. There are certain circumstances where the background assumption is that nobody knows anyone’s infection status — some sex clubs, for example — and if folks enter into those circumstances they know they have to protect themselves as though everyone is infected with everything. They are knowingly and consciously assuming the risk, and they are hopefully making sound decisions about their methods of risk reduction. But using universal protections as a background rule is highly imperfect, because people who are not used to high levels of risk are just not consistent. If we’re about to engage in sexual conduct and have an infection that is reasonably likely to be transmitted by that conduct — whether it’s a cold we could give someone by kissing or HPV or anything else, if we know we ought to disclose. That’s my position.

Obviously, most folks need a lot more information to know who to date than, if so inclined at all, who to be causally sexual with. We have a whole due diligence process for that, called dating. At the more spontaneous end of the spectrum, folks will likely need less information and have fewer dealbreakers, but each of us is the only one who knows what we need to know.

What to do when asked? Well, if someone can’t be honest with me, that person is not a sex partner I want. If someone asks me something and I don’t want to answer, I’m not going to lie. If I refuse to answer, I expect they will consider my refusal and the opportunity may go away, but it’s not as if I was entitled, anyway. My sex partners are their own people with their own decision-making process. They can decide they’re not into it at any time, for any reason or no reason.

None of which constitutes a position on what to think of people’s reason for turning down a sex partner. Some reasons for doing that are appalling. People have all kinds of prejudices. People might not want to be sexual with a particular person because they are racist, classist, transphobic, ablist, and any number of other prejudices. But, on my account, each person can refuse to be sexual with any other person for any reason — even a reason that I think is bigoted — because the alternative is to say, “if your only reason for not wanting that person as your sex partner is X, and X is bigoted, then you have an obligation to have sex with that person.” And I will never say that. Isn’t that basic and noncontroversial?

I can’t waive a magic wand and impose a sexual ethic on anybody but myself. If I could, enthusiastic participation would be a universally accepted norm. But the purpose of Yes Means Yes, the book and the blog, is aspirational thinking about a sexual culture that works better and is better than the one we have. So this is my shot at an ethic of sexual disclosure: you know what’s material to you, so you decide what to ask your partners; it should not be up to them to guess.

*Law geeks: this is a close paraphrase of the Basic v. Levinson standard. Part of the reason I’m importing the term “material” is that deliberately misleading someone about material information so that they reasonably rely on the misrepresentation is generally actionable as fraud, either at common law or by various statutes. Importing that is intentional, as I think lying about a material fact to get someone to be sexual in some way is a kind of fraud, perhaps not in a legal sense but in an ethical sense. If I have actual knowledge that someone needs a piece of information to decide whether to be sexual with me and I am affirmatively misleading, that’s not okay.[Ed: see comments]

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27 Comments leave one →
  1. Elana permalink
    November 3, 2009 6:40 pm

    Hi, I’m the author of the post you linked to.

    I disagree with your conclusion that “If I have actual knowledge that someone needs a piece of information to decide whether to be sexual with me and I am affirmatively misleading, that’s not okay.”

    I think it depends on whether the knowledge is something that they are entitled to. I don’t think being in a sexual relationship automatically makes someone entitled to any information they want from their partner.

    I phrased it this way in my post:

    “it treats sex and privacy like commodities that can be traded under contract.

    The idea is that the transphobic person has sex and the trans person has privacy. The transphobic person offers to give sex in exchange for the trans person’s privacy. By not coming out, the trans person failed to fulfill their part of the “bargain” – they stole sex from the transphobic person. That is, the trans person raped them.”

    My post goes into much more detail about this.

    • November 3, 2009 7:58 pm

      To the extent my footnote adopted the language of property transaction, it was a mistake. My Yes Means Yes essay, Towards A Performance Model of Sex, is all about why a model of sex as shared interaction rather than commodity transaction is better, but it’s so pervasive and even I get sucked into it. Post edited to eliminate most of the footnote. I don’t want that text to distract from what I think is the far more important idea: that the burden is on the person seeking information to ask what they need to know. Which is not at all an endorsement of some kind of a right to an answer, either. People that ask nosy questions don’t have a right to answers.

      Your language “by not coming out” makes it unclear to me that you understand the bulk of my post — that I am in fact arguing against any disclosure obligation and for a right to privacy. I do not think anyone has to out themselves; I don’t even think it should occur to any of us to assume what our sex partners need to know.

  2. November 3, 2009 6:47 pm

    This seems like intentional blindness. Obviously your sex and gender identity is more relevant to your sex life than whether or not you’re a lawyer. Gays mostly don’t go to predominantly straight bars and try to hook up with people who they have a reasonable basis for assuming are uninterested in hooking up with them. Trans people have a reasonable basis for assuming that people they meet in spaces that are not specifically designated as trans-friendly probably care about their status in a big huge way, and when they are not in trans-designated spaces, it’s worth disclosing the big huge thing that everyone knows is a big huge thing, because being intentionally stupid is an attack.

    And yes, you’re right, this makes it so that privileged people don’t have to work as hard as non-privileged people. That’s why spaces are created for non-privileged people in which they can define the controlling culture of the space. The solution to privilege is not to make the world a back-breaking beige where no one can act naturally, and it’s not to deny cissexual neurotypical people an opportunity to have spaces where they can act naturally and enjoy each others’ company.

    • Aumentou permalink
      November 4, 2009 3:50 pm

      “Trans people have a reasonable basis for assuming that people they meet in spaces that are not specifically designated as trans-friendly probably care about their status in a big huge way, and when they are not in trans-designated spaces, ”

      We were talking about disclosure. If you’re pre-op there’s no question about “disclosure” – you HAVE to do it before you have sex. So we’re talking specifically about post-op stealth trans people. We can safely assume that most people won’t even notice – “stealth”, remember? We can also assume that they won’t even notice during sex (at least for trans women – I don’t know about men) because it makes no difference at all – except you will need lube.

      So we’re talking about post-op trans women. Who have female genitals and have sex like cis women with exactly two differences:

      1) They need to use lube,
      2) There is no possiblity of them getting pregnant.

      So why does anyone need to know? If it were a long term relationship then children might be an issue. Otherwise, why does anyone need to know?

      “That’s why spaces are created for non-privileged people in which they can define the controlling culture of the space.”

      This is kind of hilarious and yet saddening. Hilarious that you think such things exist. I live in a city of 400,000 people, and there are no trans bars, no trans cafes, no trans clubs – why would there be? There are a couple of LGBT bars, but frankly the T is just there for publicity and the music is not to my taste. If you’re trans and you want to go out you go out to the same places cis people go. There aren’t any other options.

      “and it’s not to deny cissexual neurotypical people an opportunity to have spaces where they can act naturally and enjoy each others’ company.”

      What, like every place that exists? We’d be doing well to put trans people in all of them, since there are more venues than trans people. What’s more, one stealth trans woman in a bar isn’t going to stop anyone from acting naturally. For starters they won’t even know she’s there. Suggesting that post-op trans people can confine themselves to the non-existant bars that their pre-op siblings occupy is exactly like telling us we’re all dirty and not allowed in normal people bars.

      • November 4, 2009 4:49 pm

        Don’t feel like you have to argue with this clown. He has been asked to exit. If she shows up arguing for segregation again, I’ll fix the problem with the banhammer.

        Also, IME, plenty of cis women use, or even need, supplemental lube, and plenty of cis women can’t get pregnant for various reasons.

  3. November 3, 2009 8:01 pm

    Barry, I just don’t agree. Your approach basically says, “I’m the normal person and folks who are different beling in their own ghettoes.” I’m not on board with that.

    The solution to privilege is to make the world more equal. If you’re against that, you and I are not going to agree on much. If you can’t “act naturally”, you are ignoring that there are a lot of people who you are asking to not act naturally just so they don’t interfere with your settled assumptions.

    • November 3, 2009 11:41 pm

      Except it’s not consigning everyone to ghettos; it’s only saying that when you leave spaces designed around your disPrivileged group, you accomodate your behavior to recognition of the state of play in spaces that aren’t designed around you. The structure you’re proposing would make it so there’s a permanent zero-sum between Privileged and disPrivileged people in this regard, and frankly, if you’re asking whether the trans minority should be made to feel uncomfortable by disclosing their status, or the cis majority should be made to feel uncomfortable by realizing they’re slept with a trans person, doesn’t democracy suggest it’s okay to let the majority have their spaces where they can feel comfortable, instead of depriving them of any safe spaces? or is the venture of democracy designed around disempowering majorities? Should bars put up a “no trans” or “say if you’re trans” sign if they want a place where cis people can relax? This seems designed for more balkanization, not less. Letting the majority space be known implicitly makes it more fluid, and permits more, not less, social flexibility.

      • November 4, 2009 6:19 am

        No, you don’t have a right to “relax” and “act normally” when what that actually means is that you’re a bigot and you don’t want to encounter the people you’re prejudiced against. Everything you have said it an argument for Jim Crow.

        I’m not being facetious. Everything you’ve said is an argument for Jim Crow.

      • November 4, 2009 1:44 pm

        If this were being done with the force of government behind it, you’d be right. But that’s not what’s at issue here. Informal social institutions aren’t the same as Jim Crow. On the one hand, absolutely there shouldn’t be any “no trans” signs, or any outright forbidden zones for trans people. At the same time, though, there has always, and will always, be spaces of social segregation where people who tend toward the mainstream can tailor environments to their liking… and there’s nothing wrong with that, unless you’re trying to describe a system where being mainstream means you’re always wrong whenever there’s a conflict with a disPrivileged person.

      • November 4, 2009 2:22 pm

        Barry, you’re just wrong. We decided more than thirty years ago in this country that we do not allow segregated public accomodations. We don’t have segregated bars or hotels or restaurants. And if people want to form a private country club or social club that has discriminatory policies, they must stay basically completely separate to be permitted to operate in that way.

        Once again, you’re arguing that Ollie’s Barbecue should be allowed to maintain segregation. That’s been decided.

        The answer is you can’t “relax” anymore than someone can “relax” who does not want to share social spaces with black folks, because what you need to “relax” comes at the expense of their right to full social participation.

        I’ve given you ample opportuntiy to try to save yourself by not making the segregationist argument. But you’ve made clear that you are, in fact, making the segregationist argument. I think you’re done here.

  4. Gular permalink
    November 3, 2009 10:28 pm

    I thought I’d carry over here since you had linked from the post on Feministing.

    My question, in a sort of follow up because I do agree with you on most points, is how is someone supposed to know to ask a question when it’s outside of what they’d think of?

    In the instance of pre/non-op trans folks, how would an average cis sexual person know to ask about trans status? I mean, it is not something an average cis sexual person encounters, and so why would they even know to ask that material question if the material is, in the vast majority of cases, assumed to be one way?

    • November 4, 2009 6:35 am

      That boils down to an argument that people who are in some way different need to be the ones to self-select and self-stigmatize, so that they don’t disturb the assumptions of the privileged folks. If you’re arguing that cis folks should be able to just assume that everyone is cis because it’s easier … I’m not on board with that at all. As Elana said in her OP, that makes trans folks participate in their own oppression for cis folks’ comfort.

      In practice, folks whose genital anatomy does not match their gender presentation are not going to just surprise someone with genitals their partner does not expect. That’s a myth, abetted by a movie. But not everyone cares about genital anatomy, and to make that some sort of special case because of cis folks’ anxieties is intensely problematic. So I think the person who cares which genitals a partner has should have the responsibility to educate him- or her-self.

  5. DavidC permalink
    November 4, 2009 12:58 am

    All seems right to me, except I’m not quite happy with your reasoning about why infection status is different from everything else. The argument seems to be that some people (those who “are not used to high levels of risk”) would not know to ask, and so could be harmed without knowing the risks.

    Now imagine a world where most people would be somehow traumatized (actually harmed!) to learn they’d slept with someone who’s left-handed. (I don’t want to think about whether our world is like this with respect to any particular categories.)

    Your point in this post, I think, means that there isn’t then somehow a responsibility to disclose being left-handed, though there is a responsibility to disclose STI’s. The difference has to lie in the difference between these harms, then– I think it lies in the fact that the potential to being harmed by an STI is necessarily part of being human, where the other harm is more incidental (even if everyone happens to be prone to it). So then this touches a bit on the moral stuff you’re talking about in the last two paragraphs. There could be a world where so many people would find going to bed with someone who’s left-handed traumatic that it starts to seem like that’s a fact about human nature. For the argument in your post, we have to see that it’s not a fact about human nature (in order to draw the distinction between this and STI’s). And really, seeing that it’s not a fact about human nature, and challenging the attitudes behind it, were something we had a moral obligation to do anyway.

    (In other words: It makes sense to say that being prone to harm from STI’s is normal, where it can’t make sense to say the same about some kind of psychological harm that comes from sleeping with someone who’s left-handed. Even if the same proportion of people are prone to both harms.)

    Also: In your paragraph about STI’s, you use the phrases ‘public health’ and ‘epidemiological.’ So I guess you’re saying it matters that the people affected could be more than the ones involved in any particular interaction? But I didn’t see how that came up in the rest of the paragraph, so I wasn’t sure how it fit in.

    • November 4, 2009 6:16 am

      One’s psychological issues with a partner — lawyer, left-handed, conservative, whatever, are not transmissible. Those issues don’t travel on to the next partner. STIs do. That’s what I meant by “epidemiological” and “public health.”

  6. DavidC permalink
    November 4, 2009 10:06 am

    And that’s the (only) relevant distinction?

    On that reasoning, I’m not sure I see how obligations would be different in a sex club, since STI’s transmitted in a sex club are easily transmitted again elsewhere.

    Also, it seems like that would make disclosure more an obligation to society than the individual partner. And if the obligation to disclose comes from an obligation to protect society, then does it create just as much of an obligation to not engage in risky behavior (even if one’s partner accepts the risks)?

    I think I’m a bit happier with the reasons I gave for making a distinction.

    • November 4, 2009 10:20 am

      I’m not going to get on board with a line of thinking that posits some group as “normal” and elevates their sexual preference to a general ethic.

      • DavidC permalink
        November 4, 2009 10:30 am

        There must be some non-problematic uses of the word ‘normal’, right? I’ll stop saying ‘STI’s’, because I like your example of telling someone you have a cold before you kiss them. ‘Normal’ people are prone to be hurt by infections.

        I’m not singling out people with infections (or any particular infection or group of infections) and calling that abnormal.

        It’s just that I’ve got this strong intuition that if there’s an obligation to tell someone you have the flu before you kiss them, it isn’t just about epidemiological consequences. It’s an obligation to that actual person, related to that actual person avoiding the flu.

      • DavidC permalink
        November 4, 2009 10:36 am

        What’s more, I’m not sure your own argument avoids positing those of us who aren’t immune to or already have every (strain of every) possible infection to ‘normal.’ That’s what worrying about epidemiological does, right? When we worry about ‘public health,’ the ‘public’ is the group of people who can be hurt by infections (I think this is everyone, no?), and you’re elevating the public’s concern to a general ethic.

  7. November 4, 2009 10:39 am

    David, I think it makes some sense to say that infection is a physiological problem, not a preference. I just want to make clear that I don’t think the infectious disease issue travels together with any of the identity-preference-orientation-compatibility-whatever issues that I’m talking about in the rest of the OP. I think infection is a different set of issues, which can be considered independently of a general rule that the burden is to ask not to disclose; and I’ll accept that this can be true for more than one reason.

  8. November 4, 2009 12:23 pm

    This is my understanding of it, with the caveat that there are a few things that we always should assume that potential partners will consider material (in that they should be disclosed so that the partner may make an informed decision):

    * sexually transmitted diseases
    * existence of a marriage or other long-term relationship (I’d personally include “open” long-term relationships here, but that’s certainly debatable)
    * certain aspects of identity (e.g., representing yourself as someone’s spouse in order to “obtain consent” to sex)

    Some folks would argue that cis/trans status should always be assumed to be material; I disagree. However, there’s an issue of what to do when one gets an indication that this status is actually material. While it’s unfair that this *does* matter to as many people as it does, I’m not comfortable declaring that anyone else’s dealbreakers, however misguided I may believe them to be, are unworthy of being respected.

    • November 4, 2009 2:24 pm

      Why relationship status? How is that different from political affiliation? Remember, I’ve expressly disclaimed that I’m talking about romantic partners. I’m talking sex partners.

      • November 4, 2009 3:21 pm

        I put relationship status in a “need to disclose” category for the practical reasons that (a) it’s material for a significant number of people, and (b) the harm of disclosing it when it’s not material is minimal. I suppose the argument can also be made that this is a way of bringing the non-present partner into the ethical consideration. Political affiliation is different because there’s *not* an expectation of materiality. (If, on the other hand, there’s been an actual expression that it’s a dealbreaker, I believe one has the obligation to disclose political affiliation.)

        For me, what it comes down to is whether the person is not disclosing something because they honestly don’t believe it’s relevant, or whether they’re not disclosing it because they believe it *is* relevant and don’t want to give their potential partner the opportunity to say no.

    • DavidC permalink
      November 4, 2009 3:28 pm

      However, there’s an issue of what to do when one gets an indication that this status is actually material.

      Yeah. I don’t think there’s a responsibility to disclose being trans even if someone knows that is material to hir potential partner. That could happen because someone has made it publicly known that that’s material, or because we’re in a very sad world where it’s material to pretty much everyone (kbz claims below that that’s the world we’re in — I don’t want to think about whether that’s true).

      I’m not sure if I’m disagreeing with Thomas here– the bit in the post about how “I can’t know in advance what people want to know about me” makes me wonder.

      But my reasoning isn’t different from what he’s articulated elsewhere in the post (and below): Making that the trans person’s responsibility just isn’t fair. Asking a trans person to take care of that preference just isn’t fair. If that’s your preference, it’s your own responsibility to ask.

      It seems like issue of fairness and not asking people to participate in their own oppression makes disclosing oppressed status different from other status. If I’ve made it well known that I don’t want to sleep with Cubs fans, or if I’m in a space where most people don’t want to sleep with Cubs fans, then I can see a bit more of an expectation that people should tell me if they’re Cubs fans. (But not enough of an expectation that failing to tell me really negates consent.)

      Because it’s okay for there to be anti-Cubs spaces. Because the assumption that you’d tell me if you’re a Cubs fan (since everyone knows I would want to know) isn’t unfair/hurtful.

  9. kbz permalink
    November 4, 2009 1:39 pm

    (cross-posted from feministing)

    At the risk of stirring up another hornet’s nest …

    I read your blog post. Your legal logic seems to contradict your conclusion.

    I do not follow your logical leap from defining materiality as “that which a reasonable person would think it important to know [...] in making a decision,” and your subsequent conclusion that materiality in sexual consent is indeterminable (because “information may be material to one person [...] and not to another person [...]“).

    According to your own definition, materiality in sexual consent would then be defined as “that which a reasonable person would think is important to know in granting consent.” This is a simple enough definition.

    You later dismiss this concept (a concept that you introduced) because individuals “don’t know what is material to any potential partner [...] so they can’t know what I want them to disclose.” This is true. But materiality, in a legal sense, is not based on what is important to each individual personally — it is based on what would be important to a “reasonable person”. This is a universal legal standard, not an individualized one. This absolves an individual from 100-page individualized disclosure documents speaking to every sexual idiosyncrasy of each individual, and only requires the upfront disclosure of information that a “reasonable person” would think is important.

    The fact remains that the vast majority of the population considers gender or percieved gender as information fundamental to the obtaining of consent. You could certainly argue that this vast majority is “unreasonable”, and thus disclosure is unwarranted … but, I don’t think that an argument that the majority of the population is unreasonable their pre-sex information-demands will hold up for long. The fact that this information is important to so many may speak to widespread transphobia … but, the transphobic still retain the right to withhold consent for any reason, and the right to the disclosure of material information before consent can be obtained.

    Thus, I would conclude that a person’s trans status clearly meets your definition of materiality — and thus must be affirmatively disclosed for consent to be genuine.

    Your ultimate conclusion appears to be “If I want to get the information I need, I’m going to have to ask.” This appears to contradict your definition of materiality — which requires the disclosure of information that is important to the “reasonable person” (regardless of whether they asked). It also contradicts materiality in securities law (which you, not I, introduced into the conversation) … as I understand it, a firm is not allowed to withhold information that meets the definition of “material” simply because the other party didn’t ask.

    You later state that sex should not be a transaction (which raises the question as to why you introduced transactional law into the discussion in the first place), but an interaction. To some extent, you are correct. But, consent must precede the interactive portion of sexuality. Consent is not an interaction — it is a negotiation of individual parties, each of which is free to individually withhold consent at their discretion. Fundamentally, the consent portion of sexuality IS a transaction — and it is the portion from which material information cannot be withheld.

    You later discuss affirmative disclosure requirements instituting an “implied norm”, and thus never challenging the privileged. Perhaps this is true. However, undermining the informed consent of the privileged does not seem to me to be an appropriate place to assert a challenge to norms. People have the right to consent, and they have the right to be informed of material facts (according to your definition of the term) prior to consenting.


  10. November 4, 2009 2:45 pm

    No. You’re wrong about just about everything here.

    That materiality is in some legal contexts objective — for example, disclosures to the public for reporting companies — does not avoid a 100 page disclosure. It is what requires it. A public company has to assume what investors in the market want to know, and so disclose a boatload of information. Likewise, if we all have to figure out what a reasonable partner wants to know, we have to cast a wide net. We have to walk around disclosing marital status, relationship status, sexual history, gender identity, genital anatomy, likes, dislikes, limits, abuse history, political views, prejudices — there’s certainly a sizeable contingent for whom each of those things is a required piece of information.

    In private transactions, while there are some background rules about what is material, it’s an individually negotiated thing, with reps and warranties. The parties decide what is material, what due diligence they need, etc. That cuts down a lot on the required disclosure. They work out among themselves what they need to know. Which is what I’m suggesting, except that in private transactions, consent is binary, measured at a point in time, whereas with interactions that’s not how it ought to be. (See below.)

    As to whether the vast majority is unreasonable, that’s a dodge. Whether it’s a reasonable concern on not, what’s the argument against shifting the burden from disclosing to asking? The stakes are a lot lower for the person asking than for some of the people who you seem to expect disclosure from, so it seems to be an overall easier and fairer rule. Sure, some cis folks don’t perceive it that way — because now, they get a free ride by just expecting disclosure and not having to think about it. But I don’t think that’s fair; I think that’s privilege. The cis people are getting special treatment because there are more of them.

    Consent need not be separate and need not be transactional. In fact, consent is not a single event or a single act. Consent is a state of affirmative agreement with what’s happening, and that’s why it does not go well with a property transaction model. In an interaction, like dancing or playing music, things tend to fall apart when one participant stops enjoying what is happening — kind of like sex. Consent is not a toggle switch. It’s a process.

    Finally, your argument about the majority really just gets back to “there’s more cis folks so their wants are more important.” Today, as all decent people mourn the loss of equality in Maine, we should all be thinking that the majority’s belief in an entitlement is not a sufficient condition to create a right. People shouldn’t have fewer rights just because they are fewer in number; and I don’t see any other basis for an argument that the burden is on trans folks to disclose history.

    I find everything you have said completely unpersuasive, and I stand by my position: infection is material generally. Everything else is material if and only if identified by the party seeking the information.

  11. December 21, 2009 12:21 pm

    Thank you for taking the time to distinguish between a person’s obligation to answer a question and a person’s right to withdraw consent if a question isn’t answered. I think this is an important distinction, and has frequently been muddied in these discussions.

    You have a right to ask me questions which are material to your decision to engage in sexual activity with me. I have a right to refuse to answer a question, even to react to the fact tht you asked the question by deciding I’m no longer interested in sex with you. If I refuse to answer, and it’s important to me, you have the right to decide not to have sex with me. I can think you’re an unenlightened jerk for doing so.

    At no point does either participant incur any obligation to take any action, nor to disclose any particular information. Explicitly setting forth boundaries which are personally important [even if they seem weird/problematic to an outsider] and discussing those is exactly how any reasonable model of consent works, no?


  1. News for the Week — Gender and Gender Roles Edition | Dangerous Women

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