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To distinguish between the harms that do and do not count for purposes of designating a disclosure duty, we must classify the potential partner’s reaction of suffering as objectively reasonable or unreasonable.

I asked whether perhaps some people might feel traumatized by having had sex, unwittingly, with a person of the same gender assigned at birth (or perhaps, if gay or lesbian, with a person of the opposite gender assigned at birth) and whether that trauma ought to count as a “harm.” One of my colleagues, Colleague 5, who had said “no” to the initial question (about whether there is a disclosure duty) and who had followed Colleague 4, who had said “yes” to the initial question, responded to my query by saying “I don’t care about people [who would be traumatized by learning that they had been sexually intimate with someone of the same sex or of the same gender assigned at birth.]”Colleague 5’s reaction indicated to me that the question I presented might have at least two features.

Is It Reasonable to Regard Transgender Status as Material?

One argument on the “no” side of the debate is that that there is plenty of information that people might prefer to know in advance about a potential sexual partner, but that fact does not elevate disclosure to a moral obligation.

The second feature of the question is what subset of harms ought to “qualify,” since nondisclosure of just about any fact could, in some cases, cause foreseeable psychological harm to some partners.

To distinguish between the two features, Colleague 5 seemed to be saying that some suffering experienced by people as a result of nondisclosure (including those who would feel traumatized by learning that they had had a same-gender-assigned-at-birth encounter) should not count.

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