The guidance concerns the rare cases of sexual assault involving deception as to sex. We say the guidance is unlawful because it conflates the concept of subjective gender identity with objective sex and is confusing and incoherent. 

The CPS asserts that “questions of deception and consent may involve more complex issues where the suspect is trans or non-binary”. This is wrong in law and could lead to both over-prosecution and under-prosecution, as well as encouraging young people to believe that their asserted gender identity overrides their sex in relation to other people’s sexual consent and sexual orientation.

That the CPS is defending its guidance is perhaps not surprising when you realise how deeply embedded in CPS policies and guidance is the idea of keeping trans people’s sex a secret and forcing others to pretend they have changed sex. 

Twenty years ago the police and CPS were still willing to recognise the role of sexual fetish in cross-dressing and transgenderism. As guidance from the Association of Chief Police Officers said in 2005:

“Not every male or female that dresses as the opposite gender (transvestite) do so because they wish to permanently be defined in the opposite gender (e.g. transgender). Some do it as a fetish or for sexual gratification, some are simply driven by an unexplained urge to dress as a woman and are considered to be transvestites, but will have no desire to change their gender.”

The criminal justice system then embarked on a long process of forgetting, offence-taking, confusing itself with ever-changing terminology and ignoring the law.

An institution loses its way

In 2007 the CPS published its Policy for Prosecuting Cases of Homophobic and Transphobic Hate Crime. It defined “transphobic” as:

“A fear of or a dislike directed towards trans people, or a fear of or dislike directed towards their perceived lifestyle, culture or characteristics, whether or not any specific trans person has that lifestyle or characteristic. The dislike does not have to be so severe as hatred. It is enough that people do something or abstain from doing something because they do not like trans people.”

It defined a transphobic incident as: 

“Any incident which is perceived to be transphobic by the victim or by any other person.”

The CPS did not consider that women might rationally fear men who overstep boundaries, or that people might be free to “do something or abstain from doing something” because of a person’s sex, not because of a generalised dislike of trans people. 

In 2013 the McNally case established that deception as to sex could vitiate sexual consent. But the CPS was too busy taking directions from trans organisations to be clear about the law. 

In 2014 it published the CPS Transgender Equality Management Guidance which drew on advice from the civil service trans and intersex network “a:gender”, and the lobbying groups GIRES, Press for Change and Mermaids. 

This document wrongly said:

“Under this legislation [the Data Protection Act 1998], data relating to an individual’s gender reassignment (which includes a change of gender status and name) is classed as ‘sensitive information’, and therefore attracts a higher degree of protection than usual, especially when a Gender Recognition Certificate is held (see Gender Recognition Act below).”

This is the same mistake the EHRC has made in its new draft code for service providers this year.

In its Guidance on Prosecuting Cases of Homophobic and Transphobic Crime (which included guidance on cases with transgender suspects), the CPS said: 

“Whether the trans person is a victim, witness or defendant, the CPS’ policy is that the person will be addressed in terms that reflect his or her present gender status. So, a trans woman, although having a birth certificate that shows her to have been born a male, should be addressed and charged and/or indicted, if appropriate, as a woman.”

In July 2019 the CPS published a Trans Equality Statement, the aim of which it said was to “sustain the confidence of communities”. It boasted that: 

“The CPS has worked for a number of years with a wide range of Trans organisations nationally and locally.”

and stated that: 

“Prosecutors should address Trans victims, witnesses and defendants according to their affirmed gender and name, using that gender and related pronouns in all documentation and in the courtroom.”

The Trans Equality Statement says that “misgendering” is a potential basis for a transphobic hate crime. And the prosecution guidance on homophobic, biphobic and transphobic hate crime says that the police and CPS “have agreed to treat unauthorised breaches under s22 Gender Recognition Act 2004 as potential hate crimes if the alleged victim or any other person perceives them as such”. That means that simply referring to a trans person’s sex is viewed as a potential “hate crime” by the CPS and police. 

In 2020 the CPS produced an education pack for secondary schools, which promoted the idea that “wearing anti-LGBT+ badges or symbols” and “showing or distributing anti-LGBT+ leaflets, comics or other propaganda” could be hate crime. The pack had been developed with Stonewall and Gendered Intelligence.

One of the teaching exercises featured a video scenario where an adult male wearing women’s clothing goes into the women’s toilets. Two young women at the sinks whisper their discomfort: “What’s he doing in here? This is the Ladies.”

The class discussion guidance says: 

“Ask the students what happened in the clip. Thinking about how the girl in the clip was treated, can the class understand why she might have felt hesitant about going into the toilets?” [By “girl”, it means the adult man.] 

The worksheet for school children asks: 

“Can you say why the person went into the ladies’ toilets and not the mens’ toilets? How did the women behave towards her? How did that make her feel?”

The guidance was only withdrawn after a 14-year-old girl brought a legal claim.

In 2021 the CPS published guidance for prosecutors on same-sex sexual violence and sexual violence involving a trans complainant or suspect/defendant, in which it said that the idea that “trans women” are men who want to deceive straight men into having sex “is part of a wider transphobic myth that trans women are ‘dangerous’”.

It also says: 

“It is not uncommon for men who identify as heterosexual who engage in sexual activity with a trans woman to feel disgusted with themselves, and they may then react with violence towards the trans woman or to accuse her of rape. Gay men who have sex with trans men can also become violent and aggressive, and sexual violence can occur as a result.”

In 2022, when the CPS appointed Sophie Cook as its “speak out champion”, concerns were raised that he had a history of derogatory statements towards gender-critical women. 

In 2022 the CPS updated its legal guidance on domestic abuse. It gave “withholding money for transitioning” and “refusing to use their preferred name or pronoun” as examples of domestic abuse against transgender individuals. 

In 2024 these two statements were dropped in an update of the guidance, after the think-tank Policy Exchange pointed out that they do not constitute criminal offences. Instead the guidance now says that it might be a crime to refuse to use a family member’s preferred name “with the intention of causing emotional or psychological distress, particularly where the victim has obtained a recognised Gender Recognition Certificate”.

Of course a gender-recognition certificate does not direct how family members think and talk about a person.

Despite the documented instances of crimes with transgender perpetrators (including a disproportionate number of sexual offences), the experiences of “trans widows” and children of transitioners, which can include domestic abuse, and the fact that transgender perpetrators of homicide outnumber transgender victims, the CPS does not have any guidance that recognises clearly that “trans women” are men and “trans men” are women, and that transgender individuals may be perpetrators of crime.

There is increasing attention on non-contact deviant sexual behaviour as a risk factor for offending. But when recast as an expression of gender identity it may be overlooked or even celebrated, and those concerned by it cast as “transphobic”.

In 2022 Lionel Idan, CPS Hate Crimes Lead, told Pink News about gaining a sympathetic understanding of the behaviour of a man stealing women’s underwear:

“I remember one of my early experiences, it must have been 2006, I met with the chair of my local transgender advocacy group. She really made me think about the way we do things in a different light. She said, ‘Lionel, back when I was younger, I couldn’t walk into a shop and buy women’s lingerie. And so I used to have to steal items off of clotheslines’ … I said, ‘Of course, I’d have prosecuted you.’ And she said, ‘There you go. Now, you know the context. I had to steal, not because I’m a thief, but because I couldn’t buy what I needed for my identity.’ … That was one of the moments where I realised, in the job I do, that to better understand lived experience is absolutely crucial.”

The frightening experience of a woman whose underwear was stolen off the line did not seem to trouble Idan.

Sex by deception

Individuals who lie about their sex online or in person in order to encourage another into a sexual act are disregarding consent, whether their victims are male or female, gay, straight or bisexual.

That the CPS can’t or won’t see this from the victim’s point of view is the result of 20 years of training itself to forget what it once knew about sexual fetish and deviant behaviour, to view “gender identity” as equivalent to sex, and to view gender-critical (that is, truthful) speech as a hateful act.

The post The CPS: keeping sex secret appeared first on Sex Matters.

At the heart of the case is a straightforward question: can the CPS lawfully tell prosecutors that a person’s “gender identity” may be legally relevant when deciding whether deception invalidates consent to sex? Sex Matters says the answer is No.

The case will be heard on 8th and 9th July 2026 at the Royal Courts of Justice. We are represented by Sarah Vine KC and Chris Knight KC. 

How we got here

This hearing is the culmination of more than four years of engagement with the CPS about whether its guidance is an accurate statement of the criminal law. 

In May 2021 the CPS published guidance called “Deception as to Gender” as a section in its Rape and Sexual Offences Prosecution Guidance (under Chapter 10: consent). It sought to explain how prosecutors should apply section 74 of the Sexual Offences Act 2003 in cases where someone alleges that their consent to sexual activity was obtained through deception about a partner’s sex.

The CPS had been a member of the Stonewall Champions scheme and it updated the guidance following a “preconsultation with interested groups” that included the Government Equalities Office, LGBT charity Galop, Mermaids, Gendered Intelligence, LGBT Consortium, LGBT Foundation, Scottish Trans Alliance and Stonewall, along with organisations concerned with violence against women. 

The updated draft guidance it published in 2022 confused biological sex and gender identity and presented them as parallel concepts. The section entitled “Evidential considerations” advised that a suspect’s trans identity, if genuine, should be treated as evidence that a deception as to sex was not deliberate, and that trans suspects had no duty to disclose “gender history” (by which it meant their sex). 

Sex Matters and the Gay Men’s Network both raised concerns, arguing that the guidance did not accurately reflect the law. 

In December 2024, the CPS published a revised version, which was now called “Deception as to Sex”. Although some wording had changed, the central problem remained: prosecutors were repeatedly directed to consider “sex and/or gender identity” as though the two concepts were legally interchangeable. The guidance suggested that the suspect’s rights to privacy protected by Article 8 ECHR, the Equality Act 2010 or the Gender Recognition Act 2004 might trump the right of the complainant to understand what she or he is consenting to in an act of a sexual nature.

In February 2025, Sex Matters sent a formal pre-action letter explaining why we believed this guidance was unlawful.

The CPS asked for additional time to respond. Over the following months, we exchanged extensive correspondence. It accepted that some amendments were needed and proposed a number of changes to the guidance. But it refused to abandon its core position that “gender identity” could be relevant to the legal test for consent.

Following the Supreme Court’s judgment the CPS amended the guidance again, inserting the word “biological” before “sex” at numerous points. This didn’t help; while sex is by definition biological, adding that word in this way tends to suggest there is another relevant kind of sex that isn’t biological (or that “biological sex” and “gender identity” are two parallel characteristics).  The most recent version of the guidance was updated in June 2026.

What does the law say?

The Sexual Offences Act 2003 sets out the offences requiring the prosecution to prove absence of consent. They are rape, assault by penetration, sexual assault and causing a person to engage in sexual activity. In relation to these offences, a person (A) is guilty of an offence if she or he acts intentionally, and (B) does not consent to the act, and (A) does not reasonably believe that B consents.

English law recognises that some forms of deception can invalidate consent to sexual activity. But not every lie between sexual partners is a criminal offence.

The Court of Appeal has made clear that the deception must be “so closely connected to the performance of the sexual act” that it is capable of negating consent. That is the legal test established in R v Lawrence [2020]. Cases involving deception about fertility, HIV status or other wider circumstances have generally failed that test. Cases involving deception about the nature of the sexual act itself, such as secretly removing a condom or pretending a sexual act is a medical procedure, may satisfy it.

The key precedent on deception related to sex is R v McNally, in which the Court of Appeal held that deception about whether a person is male or female could invalidate consent. (Sarah Vine KC discussed the legal concepts with Michael Foran on his podcast in 2024).

Sex Matters argues that the CPS guidance is unlawful as it treats gender identity as though it were equivalent to sex. We say that a person’s gender identity (whether they identify as a transwoman, transman, masc, femme, non-binary, gender fluid or anything else) is not part of the performance of the sexual act and therefore cannot satisfy the Lawrence test. As the Supreme Court recognised in For Women Scotland: 

“People are not sexually oriented towards those in possession of a certificate.”

The CPS disagrees and says that the matter should be left to a jury in an appropriate case.

The hearing on 8th and 9th July 2026 will therefore focus on a fundamental point of principle: is gender identity legally relevant to deception under section 74 of the Sexual Offences Act 2003?

Why the guidance matters

Crown Prosecutors are expected to follow CPS guidance when making charging decisions. Police officers, defence lawyers and victim-support organisations also rely on it. Guidance issued by the Crown Prosecution Service should explain what the law is, not what groups such as Stonewall, Galop and Gendered Intelligence would like it to be. 

Muddled guidance could have real and damaging consequences: genuine offences may not be prosecuted or people may face prosecution on the basis of an incorrect understanding of the law.

The guidance is also likely to influence sex education and guidance produced by other organisations for young people, and for those who identify as transgender. Young people who are experimenting with sexual relationships for the first time and who may believe that “you are who you say you are” are particularly at risk of misunderstanding the importance of sex to the validity of consent, and of becoming either victims or perpetrators. 

Our case includes a witness statement from Dennis Kavanagh of the Gay Men’s Network, who says that deception as to sex is a growing issue for male homosexual victims: 

“The practice of trans identifying females concealing their sex, colloquially known as ‘stealthing’, is a known issue in homosexual male spaces.“ 

He points at the guidance issued by ClincQ, Cruising: a trans guy’s guide to the gay sex scene, which encourages this – “Some guys [trans-identifying women] might not tell their sex partners.”

Kavanagh points out in his witness statement that deception as to sex has been identified by some trans-supporting lobby groups and charities as a target for reform with the ultimate aim of removing the right of the victim to obtain information about the sex of their potential partner prior to sexual contact. For example, Stonewall’s publication A vision for change: Acceptance without exception for trans people included as a goal:

“Judicial clarity of ‘sex by deception’ cases to define the legal position on what constitutes sex by deception based on gender, and to ensure trans people’s privacy is protected.” 

The CPS itself, as the principal authority responsible for prosecutions, should be unequivocal, precise and clear as to the centrality of biological sex to sexual orientation and therefore to consent to sexual activity, just as the law itself is clear on this point. 

Sex Matters is asking the court to quash the guidance, or to remove those parts of it that misstate the law.

The post We’re taking the CPS to court over sex by deception appeared first on Sex Matters.

In the interview Anderson seemed to be trying to distance the organisation from the extreme position it has taken, saying that he recognises that there are competing rights and that organisations need to go beyond “megaphone diplomacy” to develop a strategy for reconciling transgender people’s rights and the rights of others.

Evan Davies on the BBC’s PM programme thought the interview suggested a “pivot” by the organisation. Helen Lewis said it was a “reset” and an olive branch.

Twenty-four hours later Stonewall published a statement recanting any glimmers of conciliation.

“I am absolutely up for a conversation.”

Anderson called for tolerance and respect and said he wanted to get out of the “Twitter spat” and the “shouting at each other problem” and issued a challenge to LGB Alliance and other organisations that disagree with the Stonewall position to engage constructively together.

Sex Matters has written to Mr Anderson twice, asking to meet with him, and he has not responded other than to take to Twitter to say he will not waste time arguing with groups “who are working to remove trans peoples’ rights or deny them their dignity”.

Following the interview Stonewall firmly withdrew Anderson’s invitation to dialogue, saying, under the heading “Anti-trans groups”:

“We have never used our precious resources on dialogue with people who are vehemently against LGBTQ+ communities, and that will remain true.”

“I use my own words.”

Anderson sought to distance himself from the comment made by CEO Nancy Kelley that it is prejudice for lesbians to dismiss the possibility of trans-identifying men as sexual partners.

He tried to claim that the comment, which was made in the context of a BBC report on lesbians being coerced into having sex with trans-identifying men, had been taken out of context.

“We all know what a woman is.”

Asked about single-sex spaces, Anderson said it was a sensitive topic; he recognised that there is a conflict of rights, but he thinks that men with a gender-recognition certificate have a right to use women-only spaces. He suggested that the Equality Act could be reviewed.

When asked about intimate care he seemed to recognise that other people have rights, and that “transwomen” are not in fact women.

In its later statement Stonewall says:

“We do not think the Equality Act should be reviewed, but we do think the Statutory Code of Practice could clearly include intersex people, asexual people and non-binary people… We do not believe that people’s rights are in competition.

“The bar set in the Equality Act, which is that trans women and trans men – although it is mostly used around trans women – access to women’s spaces should only be restricted as a proportionate means of achieving a legitimate aim, is very high. There has to be a very specific set of reasons to exclude trans women from single-sex spaces. Although we dearly wish that no single-sex spaces wished to exclude trans women, trans men or non-binary people, we also recognise that, for the minority of spaces that want to, it is probably not a particularly safe service for those trans people to access.“

“It’s a problem in terms of the perception of the conversation.”

On sport, Anderson said that governing bodies were taking a sport-by-sport approach based on science and evidence. But he was not willing to admit that there is a clear unfairness in male athletes such as Lia Thomas competing against women.

While Anderson said that decisions should be taken sport by sport, Stonewall has criticised World Rugby and England Rugby for deciding that it is unfair and unsafe to allow men to transition into women’s rugby.

Stonewall’s later statement urges sports bodies to refrain from protecting female-only sports competition until they have stronger sport-by-sport evidence.

“We need to lower the temperature on all sides of this.”

Asked about the abusive language used against JK Rowling and “TERFs” (so-called trans-exclusive radical feminists), Anderson declined to take the opportunity to send a particular message but instead said that both sides should lower the temperature.

Sex Matters has written to Iain Anderson twice asking for a meeting. In the light of Stonewall’s recantation after this interview, we have written him another letter, asking for clarification.

The post Stonewall chair speaks (and then recants) appeared first on Sex Matters.

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