BRITISH HIGH COURT: Trans rape suspects can be called men, prosecutors told

October 2, 2026 in News by RBN Staff

Legal challenge over ‘deception as to sex’ guidelines prompts CPS to change rules on how defendants in sexual offence cases are addressed

The Crown Prosecution Service has advised prosecutors that they can address biologically male transgender rape suspects as men.After a legal challenge, the CPS has altered guidance to barristers to say that transgender women can be referred to by their birth sex “where it is appropriate”.

Previous advice only included witnesses “such as a victim of a sexual assault by a trans person”, who, it was advised, could refer to “a trans person by pronouns matching their birth sex”.

However, a legal challenge has pushed the CPS to go further and allow prosecutors to use male pronouns for transgender women defendants, in such cases where doing otherwise could “lead to unfairness”.

Sex Matters, a gender-critical campaign group, took the Director of Public Prosecutions to the High Court over the CPS’s legal guidance on “deception as to sex” – when consent cannot be obtained if a partner is unaware of the other person’s sex.

Sex Matters argued that the guidance conflated the concept of sex and gender identity. The group’s claim was dismissed by High Court judges on Friday.

Guidelines edited and revised

However, the case has prompted the public prosecution service body to edit and revise its current guidelines.

Edits made will include the addition of a line that reads: “There will also be situations where it is appropriate for a prosecutor or a witness (for example, a victim of sexual violence or assault by a trans person) to refer to a trans person by pronouns matching their birth sex.”

Previously using such pronouns was only deemed to be appropriate for a “witness” rather than a prosecutor.

In their ruling, judges described part of the previous version of the guidance, which described the “experience of trans and non-binary persons” as “surprising”, given the “context” that “the person under consideration is a suspect in respect of an allegation or allegations of sexual offending”.

Dame Victoria Sharp, the president of the King’s Bench Division, and Mrs Justice Williams also addressed a section of the guidance titled “Trans and non-binary persons – experiences”.

The judges said this section treated suspects as though they were “a vulnerable person in need of protection, rather than a suspect”.

They added that they saw “considerable force” in the arguments of lawyers acting for Sex Matters, who said that the tone of this part of the guidance was “unusually sympathetic”.

Guidance will still advise that in most cases prosecutors should address trans victims, witnesses, suspects and defendants according to their “affirmed gender and name” in all documents and in court “except where this may lead to unfairness”.

‘Important improvements’

Maya Forstater, the chief executive of Sex Matters, said: “I am proud that Sex Matters brought this case, which led to the High Court making stinging criticism of Crown Prosecution Services guidance on sex by deception.

“Our position remains that since ‘gender identity’ is wholly subjective and poorly defined, a person’s self-identification as to gender is not relevant to whether consent has been freely given.

“The CPS guidance conflates the reality of sex with the idea of ‘gender identity’, which has serious consequences for charging decisions.

“Although the High Court stopped short of declaring the guidance unlawful, it has left the CPS with clear instructions to reconsider whether its approach was appropriate. This has been a long and gruelling legal process, but it has resulted in important improvements.”

A spokesman for the CPS said: “We welcome this judgment. The court rejected the claimant’s interpretation of the law on consent and ruled that it had been correctly stated by the CPS.

“The guidance we provide undergoes rigorous scrutiny to make sure it assists prosecutors to apply the law in criminal cases brought to the CPS for a legal decision. This was no different for the deception as to sex guidance.”

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