by Sherry F. Colb
In my column for this week, I consider the question whether there is an ethical/moral duty for a transgender person to disclose his or her transgender status to a potential partner prior to engaging in sexual intimacy. I present some arguments and points of view offered by a number of my colleagues (anonymized to protect the innocent) as well as some arguments of my own on both sides of the question.
In this post, I want to consider an issue that arose during the course of my discussions with my colleagues as well as in conversations with friends to whom I also posed the original question. The issue is deception in general among sexual partners. Only one of my colleagues said that that people have an ethical duty to disclose all information that they predict would matter to a partner, no matter how "unreasonable" we might consider the partner's desire to have that information. At the same time, all of my colleagues agreed that there is a duty to disclose that one has a sexually transmitted infection ("STI"). I want to raise doubts about the answers to both of these questions.
When one is involved in a casual sexual encounter (rather than, say, sexual relations as part of a long-term, committed relationship), it is probably a good idea to act "as if" the other person has an STI (and thus to practice safer sex). This is because not only do people lie about their health status, but many people do not know their health status (and that includes their HIV status). Many who are sexually active with numerous partners decide not to get tested for STI's, including HIV, because they prefer not to know. This form of denial is quite similar to the behavior of people who eat unhealthfully and never exercise but choose not to inquire with a doctor about whether they are suffering from one of the chronic diseases that plague those with unhealthful eating habits who live very sedentary lives.
Once we understand that many of the people upon whom we might place a "duty to disclose" an STI are unaware of having an STI, it arguably becomes all the more reasonable to say that parties have a duty to protect themselves from illness rather than placing the obligation on a sexual partner to take necessary precautions and provide a warning. This calculus might change if there is an affirmative lie, such as "You don't need to use a condom because I am disease free" when the speaker in fact has an STI and knows it or "Birth control is unnecessary because I had my tubes tied" when in fact the speaker had no such surgery and is fertile. But otherwise, the worried partner should perhaps take on the responsibility of asking the question about STI's expressly or, better yet, of assuming in the absence of contrary proof that the answer is yes and acting accordingly.
Now turn to the other question on which there was near-unanimity. Do people violate their ethical/moral obligations by deceiving partners on a whole range of seemingly unimportant (but material-to-the-partners) facts about themselves? Almost everyone says no. You can tell your potential sexual partner that you are much younger than you are (and wear the makeup, hair color, and whatever else helps support your deception). You can announce to your partner that you hold a better (and better-paid) position at work than you actually do. And you can claim to your partner that you have many more friends and have had more lengthy romantic relationships in your past than you really do and have actually had, respectively.
I wonder, though, whether these really are harmless deceptions that there is no ethical duty to avoid. One colleague suggested, vis-a-vis the transgender disclosure duty, that if a couple remained together long term, then a moral duty to disclose would emerge at some point (although he thought that no duty existed for a one-time encounter). Assuming that some number of the sexual relationships develop into something long-term and committed, people might well feel betrayed (and angry) that at their first encounter, their now-long-term partner lied to them. Perhaps the couple is now suffering financial problems, and the lie about financial security now seems like a fraudulent scheme. Or maybe one of the partners was hoping to have children and would have known that was unlikely (and may have made a different decision about getting involved) if the other partner had been honest about her age.
My first reaction to the idea that all material-to-the-other-person information should be disclosed, as an ethical matter, was to think "no way." But in thinking more about it, perhaps the deceptions we take for granted in short-term intimacies can have a corrosive and harmful effect if the relationships develop into something more permanent, which is always a possibility (and perhaps even a goal for many people who decide to become sexually intimate with someone). And it is hard to know when the "correct time" is to disclose something about which one has lied in the first place. At some point, it might well feel "too late" to disclose, because the initial lie plus the time that has passed has amounted to a correct accusation by the partner that "you have been lying to me all of these years."
Part of what makes the whole question of a moral duty to disclose interesting is that whether we are talking about an STI or something that appears to be a trivial deception, there are compelling arguments both for and against embracing a duty. There are so many circumstances in which people find themselves that it is difficult to know, ahead of time, whether it is truly "harmless" or "harmful" to pretend, by omission or expressly, to be "more than" or "different from" the person you truly are. Perhaps we would have a more ethical world if people erred on the side of disclosure rather than concealment.