Disclosure And Material Information
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]