The Impossibility Of Disclosure Obligations
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.