SOAS University of London

Centre for Gender Studies

QUEER PERSPECTIVES ON LAW II: Law, Ethics and Politics of Disclosure

Prof Aeyal Gross (Tel Aviv University) & Prof Alex Sharpe (Keele University)

Date: 7 February 2014Time: 4:00 PM

Finishes: 7 February 2014Time: 6:00 PM

Venue: Russell Square: College Buildings Room: 4426

Type of Event: Workshop

The SOAS Centre for Gender Studies and the SOAS Centre for the study of Colonialism, Empire and International Law invite you to join us for Queer Perspectives II, which follows on the success of the Queer Perspectives on Law workshop. It will focus on legal, ethical and political issues surrounding disclosure/non-disclosure of facts considered material to sexual intimacy.

In 2012, the Israeli Supreme Court upheld the conviction of Sabbar Kashur for rape by fraud. The ‘fraud’ in this case consisted in the fact that he was considered to have ‘deceitfully’ misrepresented himself as a Jew to a woman with whom he had sexual intercourse. In 2013, the English Court of Appeal upheld the conviction of Justine McNally on six counts of assault by penetration. The ‘fraud’ in this case consisted in the fact that she was considered to have ‘deceitfully’ misrepresented herself as a man to a woman with whom she had sexual intercourse. The McNally case is preceded by similar cases in the UK, the US and Israel. The indictment and convition of Kashur, McNally and other individuals has led to public and legal debate surrounding questions of sex and nationality or sex and gender, and their interconnections. The workshop will examine  how the state's punitive power in such instances is applied so as to preserve the national-gender-sexual order.  It will include presentations from Prof Aeyal Gross and Prof Alex Sharpe followed by comments from Dr Hedi Viterbo and Dr Sarah Keenan and general discussion.

Performativity and Crossing Gender and Nationality Borders in the Case-Law on Rape by Deception
Professor Aeyal Gross, Tel Aviv Univeristy

Sabbar Kashur was convicted for deception relating to national identity, with the court ruling that he had "deceitfully" misrepresented himself as a Jew to a woman with whom he had sexual intercourse alongside deception regarding his personal status. His indictment and conviction led to public and legal debate on questions of sex, nationality, and the connection between the two. This article discusses the Kashur case and other instances in Israel and across the world in which people have been convicted for a similar crime, while in the latter, unlike in the Kashur case, deception regarding gender identity was claimed. The article proposes an integrated examination of the case-law dealing with national impersonation and gender impersonation and considers how the criminal law rules governing rape by deception that relate to the "identity of the offender" serve to preserve the gender-national order from prohibited boundary-crossing that challenges the stability and "naturalness" of identity categories that lie at its base.

The article considers how the state's punitive power in such instances is applied so as to preserve the national-gender-sexual order. The Kashur case is examined through the prism of the "passing" phenomenon, where members of minority groups that regard themselves as deprived tend to present themselves, in certain social circumstances, as belonging to the majority group so as not to be exposed to racist or discriminatory treatment. The court decisions convicting people who "passed" as members of groups to which society does not regard them as "naturally" belonging to are critiqued from a perspective that takes nationality, like gender, to be a type of "performance," which does not have a separate ontological status from the various actions that constitute its actuality. Like gender signals, national signals are exhibited-performed and, in effect, constitute the identity that they are allegedly expressing. The case-law that is analyzed demonstrates how deviation from the nationality, just as from the gender, that everyone supposedly "has" and is forcibly imposed on us leads to
punishment. This is particularly the case when the deviation occurs in the framework of an intimate relationship with another person, in a way that violates the national-gender-sexual order.


Professor Aeyal Gross LLB, SJD

Professor Gross is a Visting Reader in Law at SOAS, University of London, and Associate Professor of Law in Tel-Aviv University Faculty of Law. His research interests are in international and constitutional law, international humanitarian law and the law of occupation, law and sexuality, human rights and the right to health

Professor Gross serves as a member of the Board of the Association for Civil Rights in Israel. He is a founding member of TAU’s LGBT & Queer Studies Forum. He also contributes regularly to the Israeli daily Ha’aretz.

Prof. Gross also served as a research fellow at the Institute of Advanced Legal Studies at the University of London, as a Visiting Fellow at the Stellenbosch Institute for Advanced Studies in South Africa, and as a Joseph Flom Global Health and Human Rights Fellow at Harvard Law School. Additionally he taught as a visitor in Columbia University and the University of Toronto and in the Academy of European Law, European University Institute, Florence.
He is the author of numerous articles, including Human Proportions: Are Human Rights the Emperor’s New Clothes of the International Law of Occupation (European Journal of International Law, 2007), After the Falls: International Law between Postmodernity and Anti-Modernity (in Helene Ruiz-Fabri, Emanuelle Jouannet & J.M. Sorel Regards D’Une Generation Sur Le Droit International (Editions Pedone, 2008), Gender Outlaws Before the Law: The Courts of the Borderlands(Harvard Journal of Law & Gender, 2009), and Post/Colonial Queer Globalization and Human Rights: Images of LGBT Rights, Jindal Global Law R 4.2 (2013). He is the co-editor, with Colleen Flood, of The Right To Health At The Public/Private Divide: A Global Comparative Study (Cambridge University Press, forthcoming 2014). , which includes his article The Right to Health in Israel Between Solidarity and Neo-liberalism.

Sexual Intimacy, Gender Variance and the Criminal Law
Professor Alex Sharpe, Keele University

This presentation, which will begin with a brief film clip from the 1992 film, the Crying Game, will challenge the notion that non-disclosure of gender history to sexual partners in advance of sexual intimacy is unethical. It will then challenge the legality and public policy interest in prosecuting transgender people on the basis of ‘fraud’ in these circumstances. In doing so, it will (a) highlight inconsistency in judicial constructions of non-consent, (b) contest the view that a right to sexual autonomy necessarily trumps a right to privacy (this will involve both a balancing of harms and recognition of the fact that non-disclosure of gender history does not, ontologically speaking, constitute deception) and (c) highlight how an emphasis on complainant determination of the materiality of gender history promotes transphobia/homophobia.


Professor Alex Sharpe LLB, LLM, PhD, Barrister at Law.

Professor Sharpe works at Keele University. Her research interests lie within the fields of social and legal theory, legal history, and gender, sexuality and the law. She has been writing about transgender/law issues for over twenty years. She is the author of Transgender Jurisprudence: Dysphoric Bodies of Law (Cavendish, 2002) and Foucault’s Monsters and the Challenge of Law (Routledge, 2010) and over 50 other publications. Alex also serves on the International Legal Committee of WPATH (the World Professional Association of Transgender Health), a law reform body that makes third party interventions in litigation worldwide.

Organiser: Dr Gina Heathcote

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