This paper considers the legality of the UK practice of prosecuting trans people for sexual offences on the basis of deception as to gender history, a practice unknown in other member states. It argues that such prosecutions may constitute an unjustified violation of Article 8 of the European Convention on Human Rights. Moreover, it argues that where criminal prosecution falls within the scope of Article 8 but is viewed as objectively justified under Article 8(2), it may constitute a violation of Article 14. The paper will proceed as follows. Part 2 will provide some background context regarding prosecution of trans people for deception as to gender history in the UK. Part 3 will set out the current law pertaining to sexual fraud in England and Wales. Part 4 will present two arguments as to why prosecutions based on current English law, or Crown Prosecution Service interpretations of it, may violate Article 8: (1) a right to respect for privacy is undermined by lack of legal certainty regarding the threshold of criminal liability; and (2) deception as to gender history ought not to be considered a material deception serving to vitiate consent as a matter of law. Part 5 will consider the issue of potential discrimination under Article 14.

The individual in international law — Human rights and freedoms — European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6(1) — Right to a fair hearing in the determination of civil rights and duties — Decree of judicial separation — Only available in High Court — Legal aid not available — Complexity of High Court procedure making it difficult for person to represent herself — Whether a breach of Article 6 (1) resulting from combination of absence of legal aid and complexity of legal procedure

Article 8 — Right to respect for family life — Whether sometimes involving right to relief from duty of cohabitation — Applicant frequently beaten by husband — Divorce not available — Applicant unable to obtain decree of judicial separation because of cost and complexity of only legal procedure available — Whether State in breach of Article 8 by failing to provide accessible procedure for relieving Applicant of duty to cohabit with husband

Article 14 — Discrimination — Position of this provision in scheme of Convention

Article 50 — Compensation — When question ready for decision

Article 26 — Exhaustion of domestic remedies — Availability of other procedures for securing separation from spouse — Voluntary agreement between parties — Order barring molestation of wife — Whether failure to seek such agreement or order a failure to exhaust local remedies — Relevance of alternative procedures — Whether failure to appear in person before High Court a failure to exhaust local remedies — Whether possibility that Applicant would not in fact benefit from decree of judicial separation relevant in considering question of exhaustion of local remedies

The individual in international law — In general — Human rights and freedoms — Foreigners ordered to pay interpretation costs in criminal proceedings taken against them in German courts — Violation of European Convention on Human Rights and Fundamental Freedoms — Article 6(3)e — Whether Article 50 applicable — Award of just satisfaction — Effect of settlement between Applicant and Respondent Government — “Equitable nature” of settlement

Article 50 — Entitlement to status of “injured party” — Whether Applicant's lawyer could rely on Article 50 to seek just satisfaction on own account — Remuneration of lawyers — Legal aid scheme

Article 14 — Position of non-German speaking foreigner before German courts — Order to pay costs of interpretation — Whether discrimination