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R v Tan and Others

Sex Work Gender Recognition

Facts

Moira Tan and Gloria Greaves were both prostitutes in Nottingham. Gloria was a trans woman, in a non valid marriage with Brian Greaves (also prosecuted for living on immoral earnings, who did her services in one house alone while renting another property to Tan.

Their adverts provided similar activity with Tan's saying:

’Humiliation enthusiast, my favourite pastime is humiliating and disciplining mature male submissives, in strict bondage, lovely tan coloured mistress invites humble applicants, T.V., C.B., B., D. and rubber wear, 12 p.m. to 7 p.m. Mon. to Fri. 89 Basement Flat, Warwick Way, Victoria, SW1.’

and Greave's saying

’The most equipped mistress in Town, report now for C.P., W.S., D.H.N. Racks, stocks, pillory, dungeon, T.V.’s wardrobe, stiletto heels, boots, rubber, leather, E-shocks, Maid training etc. etc. You name it? Madam has it, also madam does nursing treatments, intimate examinations, Victorian and modern enemas. Bottle and breast feeding. Nappy changing by Nanny. Report to Madam Stern, 15 Clarendon Street, Basement Flat, Victoria, London, SW1.’

Gloria Greaves was prosecuted for living off immoral earnings, which is a male specific crime, due to her 'association with' Moira Tan (who is named as she also appeals against charges for keeping a disorderly house). This is under s30 of the Sexual Offences Act 1967 that says

  • (1) It is an offence for a man knowingly to live wholly or in part on the earnings of prostitution.
  • (2) For the purposes of this section a man who lives with or is habitually in the company of a prostitute, or who exercises control, direction or influence over a prostitute’s movements in a way which shows he is aiding, abetting or compelling her prostitution with others, shall be presumed to be knowingly living on the earnings of prostitution, unless he proves the contrary.

    • She appealed on the grounds that she had had SRS, and so was a woman who could not be convicted of a crime only men could be prosecuted for.

    Held

    The Court of Appeal, wanting consistency between the civil and criminal law, rejected the appeal on the basis that Gloria was a male using the Corbett test.

    Reasoning

    Corbett v Corbett left some room for sex to be interpreted differently outside of marriage, the court saying about national insurance and employment tax:

    [sex] is not an essential determinant of the relationship in these cases because there is nothing to prevent the parties to a contract of insurance or a pension scheme from agreeing that the person concerned should be treated as a man or as a woman, as the case may be. Similarly, the authorities, if they think fit, can agree with the individual that he shall be treated as a woman for national insurance purposes, as in this case. On the other hand, sex is clearly an essential determinant of the relationship called marriage, because it is and always has been recognised as the union of man and woman.

    Thus it was considered whether a test different to Corbett should be used for criminal law where 'the person had become philosophically or psychologically or socially female'

    The court rejected this idea 'without hesitation' on the basis that 'both common sense and the desirability of certainty and consistency' in criminal and civil law would necessitate the test used for marriage be used for buggery contrary to s 5 of the Sexual Offences Act 1967.

    The Court stated:

    a marriage between Gloria Greaves and another man was a nullity, on the ground that Gloria Greaves was a man; that buggery to which she consented with such other person was not an offence for the same reason;

    note that this was at a time in which buggery, that is anal sex, between men and women was illegal (ammended by Sexual offences act 2003) but gay sex was legal.

    For this reason Greaves was a male and was caught under male specific offences in the act.

    References