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The Impossibility Of Disclosure Obligations

July 26, 2010

It is just not possible to require people to affirmatively disclose to their sexual partners everything that a “reasonable person” might want to know before becoming sexual with a partner. That’s because what is a material fact to any of us may not overlap much with what’s a material fact to someone else. Folks that think there are certain things everyone wants to know really are not thinking broadly enough.

I’m writing this because of the discussion that developed on Jill’s thread at Feministe about rape by deception. But I just want to talk about the idea of mandatory disclosure as an ethical obligation, not about criminal or civil remedies (because that imports a lot of stuff about how justice systems work or don’t work).

A great deal of the discussion revolved around two constellations of issues: one was Israel, the Israeli courts and racism. I don’t want to add anything to that. The other major constellation of issues was trans folks and the implications for them.

The thing is that people who kill trans women (usually trans women), like the man who murdered Angie Zapata and the men who murdered Gwen Araujo always say the same thing. They say they were deceived. The “deceiver” theme replays itself as perhaps the dominant theme of presentation of trans women in film and television (Julia Serano writes in Whipping Girl that there are really only two presentations of trans women in media: “deceiver” and “pathetic.”) It’s a ubiquitous accusation. And … it’s complete bullshit. It’s made up. It’s not true. (at the trial of the man who killed Angie Zapata, there was evidence that he was lying. He knew Zapata’s trans history at least days earlier and more probably all along.) It’s a creation of cis people’s anxieties — anxious cis men whose masculinity is made of glass, and transphobic menaces like Janice Raymond who imagine that trans women have an agenda to harm cis women. It’s a lie and a group slander — one that, if it doesn’t directly kill women, and it may, at a minimum is the ever-present excuse of those who kill women who happen to be trans. (I’ve referenced trans women and the particular dynamics of the “deceiver” slander around trans women. I know that trans men and non-binary folks are also subject to violence particular to their statuses and identities, but I know I don’t have enough understanding of how those things relate to the “deceiver” slander.) [Edited to add: Lisa Harney has a piece up now about how the “deceiver” narrative is being used to cheat Nikki Araguz out of her deceased husband’s estate in the Texas courts, just because her medical history puts her in the crosshairs of a lot of folks’ bigotry. As if the violence and its apologists were not enough, the “deceiver” narrative seeps into other aspects of trans women’s lives.]

So, that’s really important. On my account, any ethical principle about disclosure has to take into account those dynamics, and that’s the principal reason I’ve come to the conclusion that there can’t be any such thing as an affirmative obligation of disclosure — of anything — to sex partners. For me, the absence of any disclosure obligation does a great deal of philosophical work, because I take the view that lying to get someone to be sexual with us when that person otherwise would not do so is a grave violation. I think it’s flat unethical. But I also think that if there’s anything we need to know before deciding to be sexual with someone, it’s on each of us to ask, because only we know what we need to know. Now, some folks might not like nosy questions, and may not answer them. That’s fine. The question can provide as much information to the person it’s asked of, as the answer to the asker, anyway. And a refusal to respond is, itself, a clear response — not of what the answer is, necessarily, but that the information is not going to be provided. Adults can make an informed decision on a refusal to respond.

Some folks might say, “but doesn’t everyone want to know the sex of the person they’re getting into bed with?” My answer is, (1) not necessarily; and (2) the answer may be a lot more complicated than “man” or “woman”; or, to be precise, the answer depends a lot on which question one is asking.

Think about all the possible things about a potential partner’s sex (if it’s even a coherent concept, some folks dispute that it is) and gender identity that someone could ask: “What’s your preferred pronoun?” “How were you assigned at birth?” “What sex chromosomes do you have?” “Do you identify on the binary?” “Male or female?” “What gender assignment is listed on your current birth certificate?” “Do you have an intersex condition?” And of course, “What is your genital anatomy?”

And, as I look at this list, I think, “why does anyone care?” I mean, if we’re just talking about having sex, and we think someone’s hot, why should we be deterred by whether that person was correctly assigned at birth, or whether they’ve accessed medical transition or what? People may — or may not — have preferences for physical characteristics like genital anatomy that are just preferences, but so much of it is obviously about alleviating the anxiety produced by treating sexual orientation as a rule rather than a descriptor. As if “straight” — or more rarely, “gay” or “lesbian” — were a club that people get kicked out of for having a partner off the approved list. (Well, I ain’t worried. I’ve already got a penis-toting cis man partner on the list, and het is still a fair description of my sexual attractions and behavior and my social position.)

But I recognize that it matters. Some people might be interested in sex with someone on the transfeminine spectrum, but only if she identifies as a woman. Some people might be fine with a partner on the transmasculine spectrum who identifies as a woman or genderqueer, but not as a man. Some people might be okay with certain genital arrangements and not others. People get to pick their partners, even if I don’t like their criteria. In fact, I think, people get to pick their partners for any reason or no reason, even if their reasons are disgraceful and abominable; even if they are bigoted reasons.

But we can’t know what they want to know. We can only know what we need to know. So it ought always to be on us to ask what we need to know, not on someone else to predict what matters to us.

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12 Comments leave one →
  1. chartreuseflamethrower permalink
    July 26, 2010 2:58 pm

    No, no, disclosure is important! For example, as in the case of Angie Zapata, if her partner had been honest and upfront and disclosed that, if he found out she was trans, he’d murder her- she’d probably be alive today. Disclosure of bigotism would save a lot of people a lot of problems!
    And think about all relationships. Imagine if people had to disclose that they’re abusive before starting a serious relationship? Requiring disclosure could be a great thing!

    Unfortunately, the narrative is cissupremacy at it’s finest and has no interest in actually protecting anyone- just in reinforcing cis privilege and trans people’s status as other.

    It’s incredibly busted as well, because women who don’t “pass” at all still get called “stealthy deceivers” even while people are saying “Yeah- there was no doubt that she was male when you looked at her”. The thing with the firefighter- she got GRS 2 months after they got married and she’s still painted as the deceiver. Either he knew, or he was EXTREMELY oblivious on their honeymoon.

    Also- I have some objections to the idea of trans masculine/feminine, primarily that, despite being on the feminine side of androgyne, I think I get called “masculine” in that set up. I know there are some trans guys who have the same objection. Well, at least one.

    “What sex chromosomes do you have?”

    How many people actually know, though? I don’t. I have every reason in the world to believe I have chromosomes that match up with my assigned sex- but I have no solid proof. I don’t think either of my parents have had their chromosomes tested. How many people have? I don’t know how expensive it is, either, so I imagine there are a lot of people you couldn’t expect to (even a hundred bucks can be reaching for some people) There are a few intersexed conditions where the person has every reason to think their chromosomes match up with what you’d expect until they go to have children and find they can’t.

    The other questions are all things you can expect a person to reasonably know about. Most people have seen their birth certificate (or know what it says), most people know what they look like naked. That one you really can’t.

    • July 26, 2010 4:29 pm

      Well, someone asking a question in a totally busted way is going to pretty much tip their hand that they’re a bigot. The question often provides as much information as the answer. Imagine the question, “so do you have any nonwhite ancestry?” That’s going to pretty much tip where the questioner stands, and unless he’s hooking up with a racist, that’s probably the end of it.

      The most important thing that can happen to the trans panic defense in the courtroom, though, is for it not to work. It stops when lawyers are convinced it won’t help them beat the case. However, if the media didn’t always follow the same “crying game” script, it might accelerate that process.

      • chartreuseflamethrower permalink
        July 26, 2010 8:13 pm

        That is happening in court rooms, thankfully. They’ve finally acknowledged it as a hate crime and the trans panic defense isn’t working as often as it used to. Although I wish JUDGES would start requiring lawyers to show more respect- they should force everyone to use the right pronouns and terms. If a lawyer started going on about a cis woman as a “brother”, “man”, “him”- no one would go for it. Why doesn’t the same go for trans women?

        But, yes, the media could really help. Or, at least, STOP HURTING. I think it’d be better if trans people were completely invisible in the media instead of being shown as either con artists or side show freaks.😕

      • July 27, 2010 6:15 am

        And you’d think it’d be a perfect McGuffin. Since the portrayals are always either deceiver or pathetic, a decent screenwriter could set a trans woman character up so that the audience expects either a murder or a reveal, and it turns out to be a false lead and the trans woman is neither pathetic nor a deceiver, but so she was really just a regular person … wouldn’t that work on any of the, what, seventy police procedurals?

    • July 26, 2010 4:31 pm

      About “transmasculine” and “transfeminine” — I didn’t mean to imply that I thought the two were collectively inclusive, as they would imply a mandatory binary. I recognize that there are people who identify as trans or genderqueer for whom neither of those two terms is meaningful. Sorry I wasn’t clear.

      • chartreuseflamethrower permalink
        July 26, 2010 7:58 pm

        Ah, that’s fine. I’ve seen a few people use trans-masculine to mean “all trans people who were assigned-female at birth” and trans-feminine to mean “all trans people who were assigned-male at birth” and don’t realize it has problems. I wasn’t sure if that was how you were using it or not.

  2. August 1, 2010 9:27 pm

    lol.

    “I just found out I have HIV, and we slept together recently. I thought you should know.”

    “Oh, yeah, I’ve known for years.”

    “What?! Why didn’t you tell me? I wouldn’t have had sex with you had I known there was a definite risk of HIV transmission! Oh my god!”

    “You never asked. Sucks to be you. Sorry ’bout that.”

    Yeah. Awesome.

    I get your concept, but it doesn’t work 100% of the time. Not with every single issue. It just doesn’t.

    • chartreuseflamethrower permalink
      August 2, 2010 8:01 am

      There’s a movie, Jeffrey I think, about a gay guy when HIV/AIDS was a big scare- so he decides to try and quit sex. One of the scenes shows two men about to have sex, and they have to stop and compare their test results to make sure they’re both clean.

      I kind of agree with you- but at the same time, why wouldn’t you ask that first? STDs, especially permanent ones, are a pretty big deal and not unheard of. If it’s a one night stand- that’s a valid concern. To use a strange expression “You don’t know where it’s been”. If it’s a relationship- your partner should care enough about your health to respect you asking. People also don’t always KNOW what STDs they have- you have no way of knowing how often the person has been tested or how much they know about their past partners’ sexual histories in the case of a one night stand.

      Do you REALLY want to put your sexual health in the hands of someone who may not care about their own?

  3. Kyra permalink
    August 2, 2010 2:48 am

    I wrote a loooong comment which, upon rereading, trended fairly offtopic for this post, dealing more with various arguments for and against disclosure, which I decided to not post. In my rambling attempts to reconcile my own position with itself on the main ethics-of-non/disclosure issue (I’m used to seeing this issue in terms of STI risks and respect for informed consent, rather than gender-conformity hangups, and this post threw me for a bit of a loop because it flips my position around), I came up with a concept that is, I hope, relevent, though I don’t know if it’s any good:

    I made, in my first comment draft, a distinction between “obligation to disclose” and “obligation to not pursue relations with false statements about,” which itself I made distinct from “obligation to answer truthfully.” That is, if someone refuses to have sex with anyone with a given status, be it religious/political, STI-related, gender-related, or anything else, they both communicate that this is a dealbreaker and give the prospective partner a way to withdraw without confirming that status.

    Specifically, at some point before sex might occur, a person with specific dealbreakers can say, “There are some circumstances under which I’m not willing to have sex with a person. You don’t have to tell me, but if any of this is true for you I want you to not pursue a sexual relationship with me—just make your excuses at the end of the night same as if you weren’t interested in me, if you don’t want to disclose it. I am not willing to have sex with [insert whatever].”

    That way the one person has made clear with what sort of partners/under what circumstances zie absolutely does not consent to have sex with, and the other person is not put in a position of being forced to disclose something that might result in a violent reaction.

    It does have its problems, most notably that it requires the person explaining their dealbreakers to tip their hand a bit (“I don’t have sex with transphobic people” could be construed by the potential partner as coming out as trans) and it requires conscious acknowledgment of potential statuses from them (is every transphobic bigot going to be consciously aware that the woman they’re talking to could be trans, or are they going to assume she’s a “real” woman (since they’re attracted to her and all) and leave that out?), but . . . maybe it could be a workable solution for some aspect of this disclosure-and-consent deal.

    I neither understand nor have any sympathy for the viewpoint that trans = deceptive. I’ve taken several years to figure out a position on the ethics of information non/disclosure when consent or nonconsent is based on that information, with the deciding points for me being the right to set one’s own risk tolerance, and the importance of respect for one’s partner’s decisions and priorities that inform hir choices, which led me to prefer protections against being deliberately misled in those situations, and you’ve turned the whole mess upside down because all of a sudden in THIS situation I’m on the opposite side from what I usually am, but then again some of that might have to do with my disdain for the holding of a cis-only standard. On the other hand, I’ve always not liked putting people on the spot and making them claim a status that their potential partner is likely to view negatively—hence the distinction between “disclose” and “back off under any pretext.”

    *rereads* I think that’s everything . . .

    • chartreuseflamethrower permalink
      August 2, 2010 2:06 pm

      Some people have justified the trans=deceiver as “you’re convincing them you can have children together when you know you two can’t” (for hetero/post-op relationships, all the trans people I know of who’ve gone stealth brought up that kids wouldn’t be happening when it was relevant, not that this matters to the people bringing it up). So that would be an interesting conversation- “I won’t have sex with women who aren’t capable of bearing my children and will be completely unforgiving if we find out you’re infertile at a later date”.

      I like that situation in theory, it kind of reminds me of the checklists Clarisse Thorn suggested for sex (kinky or vanilla) to help people communicate their limits and desires while limiting pressure. http://clarissethorn.wordpress.com/2010/06/14/sex-communication-tactic-derived-from-sm-1-checklists/
      I don’t know how well it would work in practice- but I really like this in theory. You did mention the problems, there are some things that could be “outing” you if you bring up (Like you mentioned, “I don’t date transphobic people” is easily read as “I’m very possibly trans myself”)- which could ruin the whole point of trying to protect people. And it is the honor system- so people could misuse it. But in theory- that’s a pretty cool idea.

  4. Mary Alice permalink
    August 3, 2010 1:02 pm

    🙂 I know what my sex chromosomes are. Tons of us do. I was born with puffy hands and puffy feet and the doctor said “oh she must have Turner Syndrome – we remember it by the 3 S’s – short, sterile, and stupid and she’ll never be a beauty queen.” For many of us it DOES show from the moment we are born. The karyotype just confirmed what they say – I have one X and that’s it in all of my chromosomes.

    I took growth hormone and estrogen and so now no one really HAS to know, y’know, that I have a medical problem. But I think every time I have a period that it doesn’t mean I can have a kid. And I wouldn’t have a period without hormones. Some TS women feel ashamed to say they can’t have kids. And my biggest anger is at religious education – I love God but am starting to hate religion, and one reason is that I have friends with TS that are Jewish AND Catholic (and I’m sure I could add religions to the list if I went on) that were told in their schools that they shouldn’t get married because marriage is for people that can have kids. And I have known a Catholic guy who pretty much gave away that if I couldn’t have kids I was not the person for him. Then again I have also heard that an Orthodox Jewish woman stayed with her partner as her partner transitioned from a man to a woman, so I am not pinning everyone in those religons as so stuck in their ways, just saying that religious schooling in those religions has told women with Turner Syndrome that we aren’t worthy to be married. And a lot of us have the position of knowing we can’t have kids at a very very early age. I’m sure there are a lot of infertile women sitting in those religious classrooms, but probably do not know it yet, the one who does probably has Turner Syndrome.

    So yeah this means something to me. I feel like I almost have to disclose that I have Turner Syndrome because it does seem to weed out a lot of people. Kinda like a “fuck you if that bothers you than I didn’t want you anyways!” But I understand for many religious people it’s a big deal, for many people for whom being a woman and getting married to a man is a big deal, they don’t want people to know right away and be known for what they CAN offer and not what they CAN’T. the thing for me is – I have a vagina. But I also didn’t have a period until I got on estrogen, and I couldn’t start estrogen until I was 15 because I was on growth hormone and they didn’t want the estrogen to stunt my growth. I was aware from when I was super little how much of a construct all this gender stuff is. But not every TS woman feels that way, and those that do in some societies are not going to be accepted, so dosclosure of sex chromsomes is a lot more complicated than many people think.

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