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The reasons that make the most sense to me are that the physical act of sex is centred around the physical instruments of sex.
Sex, n. Also known as "proper sex". An act in which a man inserts his manhood into the hole possessed by a woman.
Oh, come on! Sexual acts don't have to have anything to do with genitalia (as Ganesh kindly poitned out many times over in the "Gender**** you." thread linked to up there). They commonly do, yes. They also fairly commonly involve breasts. Perhaps a little less commonly, they may involve wigs.
And, in the case in question, genitalia did not enter into the equation anywhere. Miriam's anatomy was as irrelevant as whether or not she was wearing a wig, and saying that her not declaring it constitutes sexual assault is exactly comparable to her not declaring that she was wearing a wig. The only conceivable difference, as I've already said, is that more people get het up about genitalia than they do about wigs. There is absolutely no reason why if this were to be ruled as sexual assault, a person with a dislike for wigs could not charge someone they engaged in sexual contact with for sexual assault on the grounds that their hairpiece was not declared. Just because it's less common, doesn't mean the morality's any different.
To prevent a ruling from becoming all-encompassing, you just need to be careful in the wording. I'm sure lawyers spend a lot of time worrying about this kind of thing.
So in this case, the law would read, "If a pre-operative [or maybe even post-operative] transsexual does not, before engaging in any kind of sexual activity, declare their condition, they are committing sexual assault." Well, that makes it a whole lot better.
Could be, but I'm not taking a position on that. I was initially responding to the thought that rapists would be able to sue their ts victims if there were a ruling that this incident with Miriam was sexual assault. It just doesn't seem plausible to me that this set such a far-reaching precedent.
Christ... of course it's not going to happen, and maybe the comparison is slightly flawed, as the rape victim doesn't have a choice in the matter, but can you not see how absolutely horrific the ruling in itself would be? Again: if this were to be ruled as a legitimate claim, it would imply - actually, not even imply, but be saying outright - that by not declaring her genitalia before engaging in any form of physical contact with the men, Miriam was committing sexual assault. Perhaps rapists, due to the consent issue, would find it a little difficult to put their case forward, but apart from that, it would make anyone who touched or was touched by a transperson able to claim sexual assault, if said person didn't reveal their condition beforehand. And if things were to actually be judged fairly, it would mean that you could be charged for sexual assault for not telling your partner beforehand that you have an "outie" belly button, or whatever comparable thing may apply to you.
Anna de L: They have a right to sue and something inside me says they shouldn't necessarily lose as long as this is action against the company rather than the woman. Yes it's screwed up that people have such a strong reaction to one part of the body when they can fancy everything else but that does not, under any circumstance, make it right to put men in such a position.
SMS: And, as Anna has reminded us, no one is suing Miriam. They're suing the company. It's even less likely that we would get the kind of cases Our Lady of.... was concerned about.
But... the problem is that while it may be the company they're suing, the grounds of their legal action is Miriam. While it might be considered "a bit nasty" of the company to put the men in a position in which it knew they would find uncomfortable, that they could sue for any part of this matter is making some quite horrible implications. If a case for defamation were accepted, it would be branding Miriam as a disgusting thing which mars the names of good people. If a case for sexual assault were accepted... well, I think I've covered what that would imply enough already. Whatever accusations they throw at the company, the implications are that there is something wrong about Miriam, that contact with her legally wrongs the men.
Also, I find the link between putting the men in a position with which they're uncomfortable and bad ethics - particularly to the extent where legal action could be taken - rather suspect. The grounds for this show were that the men wouldn't touch a transgirl if they knew her anatomy, that they would be repulsed if they found out they had done so, the "entertainment" coming from putting them into a situation in which they do so unwittingly.
Perhaps that may seem to some a little unfair on the men. But: what if, say, the TV company had picked men they knew to be racist, who would be repulsed if they discovered they had touched a black girl, and put them in a situation in which they unwittingly do so (for example, blindfold them and say, "Here is a beautiful woman, she's there for you to win the affections of.")? If they then removed their blindfolds, discovered that the girl they'd been fondling was black, and then tried to sue the company for sexual assault because they didn't consent to being fondled by someone of a different colour, would you have much sympathy for them?
And... there really is no difference. Both situations are based on not telling the men something about the woman they're about to engage in physical contact with, knowing that they'd be repulsed if they knew. The former group is transphobic, the latter is racist. The only thing which means that people would denounce the latter group but be more "understanding" of the former is that transphobia is, quite simply, much more socially acceptable.
(... And after pressing preview, Anna de L has posted. Do you have a camera in my office to ensure that you post just before I finish something? This is the second post in a row...) |
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