Recently, I was listening to a podcast, and a caller asked the following question of the hosts: Does a transgender person have an ethical or moral obligation to inform a potential sex partner of his or her transgender status before the two people have sexual relations? The hosts both responded “no” to this question but added that given the prevalence of transphobia in the population (and the associated violence), prior disclosure would probably maximize the safety of the transgender person. This safety concern is particularly acute for straight-identified transgender women of color.
I informally surveyed about nine of my colleagues at Cornell by posing the same question and found the group about evenly split on the answer, though everyone agreed that disclosure would constitute a “best practice” in terms of safety and all-around satisfaction. The conversation that followed was subtle and interesting. In this column, I will discuss the different answers I heard as well as the sorts of reasons people gave (along with other reasons that people could have given) to support their responses.
Posing the Question
When I first posed my question, only one colleague (“Colleague 1”) was sitting in the faculty lounge. This colleague’s answer to the question was that yes, a transgender person does have a duty to disclose this fact to a potential sexual partner before there is any intimacy. At the same time, Colleague 1 voiced the concern that answering in this way required some courage, given the potential accusations of being transphobic (or a “prude,” as later turned out to be the accusation by another colleague), suggesting a bigotry on the part of anyone believing that there might be an ethical duty to disclose in the situation.
As several more colleagues entered the faculty lounge (which is where a number of faculty convene informally for lunch each day), I posed the question to each of them. This made for a somewhat unusual discussion format, since our lunch-time conversations are typically free floating, and I had hijacked the ordinary spontaneity of the lounge to gather information. In my defense, though, people seemed interested in the question and willing to play along, a testament to the friendly and supportive nature of my colleagues.
The two following people who entered the lounge, Colleagues 2 and 3, both indicated that they believed the transgender person lacks any moral duty to disclose his or her status. All three colleagues agreed, by contrast, that a person who has HIV or another sexually transmitted infection (“STI”), such as gonorrhea or chlamydia, does have a duty to disclose this fact to a potential sexual partner, and all of the colleagues who followed them into the lounge agreed as to the STI question, as well. Because of the physical harm that can result from exposure to an STI, everyone maintained, it would be unethical to have sexual relations without first warning a partner about this risk of contagion.
I asked whether perhaps some people might feel traumatized by having had sex, unwittingly, with a person of the same gender assigned at birth (or perhaps, if gay or lesbian, with a person of the opposite gender assigned at birth) and whether that trauma ought to count as a “harm.” One of my colleagues, Colleague 5, who had said “no” to the initial question (about whether there is a disclosure duty) and who had followed Colleague 4, who had said “yes” to the initial question, responded to my query by saying “I don’t care about people [who would be traumatized by learning that they had been sexually intimate with someone of the same sex or of the same gender assigned at birth.]”
Colleague 5’s reaction indicated to me that the question I presented might have at least two features. The first is the question whether non-disclosure truly hurts anyone. When we change the facts to someone having gonorrhea, the answer is plainly yes, and everyone (at least among those of my colleagues who entered the lounge) agreed—under those circumstances—that there is a moral duty to disclose. The second feature of the question is what subset of harms ought to “qualify,” since nondisclosure of just about any fact could, in some cases, cause foreseeable psychological harm to some partners. To distinguish between the two features, Colleague 5 seemed to be saying that some suffering experienced by people as a result of nondisclosure (including those who would feel traumatized by learning that they had had a same-gender-assigned-at-birth encounter) should not count.
To distinguish between the harms that do and do not count for purposes of designating a disclosure duty, we must classify the potential partner’s reaction of suffering as objectively reasonable or unreasonable. If we decide that it is unreasonable to be upset, then we might conclude that the harm that would have been avoided by disclosure does not qualify as the sort of harm with which ethics or morality should concern itself. Colleague 6, who had weighed in with a “yes” response, observed that in Israel, the crime of “rape by deception” (discussed at greater length in my columns here and here) looks to whether the potential partner himself or herself would consider the information to be disclosed material to the decision whether or not to have sex with the non-discloser, though the law also has an objective element that allows a court to consider the desire for some types of material information to be objectively unreasonable.
An objectively unreasonable category of information that came to my mind and that I voiced at the time was the fact that a person was “one quarter” African American. If the potential partner was a racist, he or she might consider the fact extremely important to the decision whether to have sexual relations, but all but one of my colleagues in the lounge appeared to agree that notwithstanding the materiality of the information to the particular partner, ethics and morality imposed no duty to disclose one’s racial ancestry.
One colleague, Colleague 7, indicated her belief that there is a moral duty to disclose anything that one can anticipate will matter to the potential partner in making a decision whether or not to consent to sex. This approach would mean that even the racist is entitled to learn that he or she is about to have sexual relations with someone who is “one quarter” black. Colleague 7’s view was that it is not our place to judge the motivations of the partner. Just as a person has the right to refuse consent to sex for any reason at all, no matter how offensive, a person similarly has the right to the disclosure of the facts that would—if known—trigger that refusal, if the potential partner can anticipate what facts would matter to this person. Colleague 7’s approach is elegant, in a way, because it applies the same criteria to “informed consent” as it does to “consent” itself.
My reaction, however, was to want to distinguish between “reasonable” and “unreasonable” bases for objecting to sex. Of course, if a person knows already of the fact (say, of racial ancestry), I support her unfettered right to refuse to consent to sex and would regard it unambiguously as rape for the potential partner to override that refusal of consent. People, in other words, have a bodily integrity right to say “no” to sex, no matter how ugly or offensive their reason for doing so might be, from the point of view of society’s evolved norms. However, omitting some information (where society regards that information as morally irrelevant to the decision to have sex) might nonetheless be justified. I have, for similar reasons, proposed that rather than prohibiting sex-selection abortion (which forces women who have learned the sex of their babies and want to terminate, into reproductive servitude), it is preferable simply to refuse, in places where sex-selective abortion is a problem, to disclose the sex of the fetus to pregnant women. That way, no one forces them to remain pregnant against their will, but they lack the information that would enable a sex-based abortion.
Is It Reasonable to Regard Transgender Status as Material?
One argument on the “no” side of the debate is that that there is plenty of information that people might prefer to know in advance about a potential sexual partner, but that fact does not elevate disclosure to a moral obligation. As Colleague 5 put it, when a person chooses to have a sexual relationship with another person, each “assumes the risk” that the facts might not be as they seem. Indeed, much of dating involves deception by omission and even some overt deception (e.g., exaggerating one’s accomplishments, coloring one’s hair, wearing makeup to look younger, wearing cologne). Why should we consider one’s transgender status so much more important than all of the other material facts that people routinely conceal from a potential partner, such that the partner’s “preference” to know about this fact rises to the level of a moral entitlement?
This is, I think, the central question about disclosing one’s status as a transgender person. Since few people (other than Colleague 7), believe that we have a moral obligation to disclose everything foreseeably material to our potential partners, we inevitably must weigh the “legitimacy” of a potential partner’s desire to know a particular sort of information in determining whether there is a moral or ethical duty to disclose it.
In thinking about this issue, on which I have yet to “disclose” my own view, it occurs to me that the sex of one’s partner matters a great deal to an overwhelming majority of people. That is, few of us, including straight people, gay men, and lesbians, would be indifferent to the sex of a potential partner. In going on a blind date, most of us would want to ensure that the other person on the date is of a particular sex, rather than just leaving it up to the matchmaker and saying “surprise me.”
We recognize the importance of this common desire to be with a particular sex when we extend the right to marry to same-sex couples. People used to make the argument that there is no discrimination in limiting marriage to opposite-sex couples because gay men and lesbians can marry any adult of the opposite sex, just as straight men and women can. Over time, people have come to understand that this argument is unconvincing, because for someone who is oriented only toward the same sex, the right to marry opposite-sex partners is effectively no right at all (and thus completely distinct from a straight person’s right to marry opposite-sex partners). By acknowledging the legitimacy of same-sex attraction in this way, the right to same-sex marriage affirms the validity of each individual’s sexual orientation, one that is often exclusive to the same or the opposite sex.
Cutting back to our question about disclosure, we see that most people seeking a partner would consider the fact that a potential partner is of the “wrong” sex for the seeker to be a “deal-breaker.” For a straight man, knowing that the potential partner is a man would preclude a relationship, and the converse would be true for a gay man learning that his potential partner is female. Bisexual people may feel differently (or may not, depending on the individual). Other than knowing that one’s partner has an STI, there are probably few other facts (besides the sex of one’s partner) that nearly everyone has a strong desire to have before embarking on a sexual relationship. Perhaps that should count toward the “yes” side of the balance.
On the other hand, one of the transgender movement’s goals has been to allow each individual to decide for him- or herself whether he or she is male or female or somewhere along the androgynous spectrum. For a transgender person to have a moral duty to “disclose” his or her status to a potential partner is, in a way, to prioritize the partner’s conception of the transgender person’s gender identity (for example, as a man, because she was assigned male at birth) over the transgender person’s own conception of his or her gender identity (for instance, as a woman). In insisting on knowing that the transgender person was assigned male at birth, society is essentially defining a self-identified woman as a man, much as it does when it excludes her from venues in which only women are permitted entry (such as a ladies’ bathroom), a definition that disrespects the rights of transgender persons.
One response to this objection that may or may not be adequate is to observe that in sexual intimacy, the right not to associate trumps the right to associate (and is most heightened in the context of forcible sex). Therefore, the person who wants to avoid having sex with someone of the same sex or someone of the opposite sex can—for purposes of deciding on consenting to intimacy—make his or her own judgment about whether the partner “counts” as a woman or as a man, and to do that, he or she would likely want to know what the genitals of the person are at this time and maybe what gender was assigned at birth. In less intimate settings, such as the workplace, school, or even the bathroom, the interest in non-association is far less pressing and the competing interest in self-definition correspondingly more likely to be dispositive.
One additional complication in the discussion came up when the issue of “discoverability” emerged. Will the ignorant partner discover the fact that the other person is transgender during the sexual encounter (e.g., because the other person has not had gender confirmation surgery—a surgery that would give him or her the genitals that correspond to the gender with which he or she identifies), after the sexual encounter (because either the other person or a third party tells him or her), or not at all? Presumably, even if the ignorant partner will suffer cognizable harm from learning (either during or after the encounter) that he or she was intimate with a transgender person, he or she suffers no harm if this fact never comes to light. Nonetheless, some of the people whom I asked about this moral question felt that certain harms (such as an invasion of privacy or the harm of having had sex with someone of the “wrong” sex, from one’s own perspective) may “count” even if the victim never subjectively experiences the harm. This approach holds similarly that reading another person’s diary or cheating on one’s spouse is a harmful and profound betrayal even if the other person or spouse does not learn of the betrayal.
It is also true that the transgender person who is able to “pass” as cisgender (someone who is not transgender) under close scrutiny is likely a person of means, because the intensive surgical interventions required for an undiscoverable outcome are very expensive. As a result, making the duty to disclose turn on whether one’s status is “discoverable” might have a disparate impact on poor or middle-class transgender people, who may choose, for this and other reasons, to avoid the surgeries that would enable them to “pass” successfully.
One reason I have not discussed my view up until now is that I find the arguments in favor of and against a moral duty to disclose far more interesting than my own particular position on the moral duty. Another reason is that I go back and forth on the question, identifying, by turns, with the transgender person who wants a complete right to identify and project an authentic identity, whether as a male or as a female or as someone in between, and with the partner who might feel very strongly about having sexual relations only with people who are both cisgender and the “correct” gender for that partner. We might consider this strong feeling to be either a form of homophobia, a form of transphobia, or both of the above and not worthy of respect. Yet in intimate relations, we could choose to treat these “hang-ups” as part of a person’s own identity and not rightly subject to invalidation or dismissal. Then again, I would not support a duty to disclose one’s race (such as “one quarter” African American) to people who would consider this information material, so I am plainly prepared to judge some hang-ups as less valid than others. I am thus left undecided but moved by many of the arguments articulated (by my colleagues and by me) in favor of both positions.