Strip-Searching, Gender Identity, and the Law

The Telegraph has today reported that British Transport Police have issued new guidance allowing biologically male police officers to strip-search women if those officers have a Gender Recognition Certificate. One might think that this is an obviously unlawful policy, but there is conflicting legal authority on this exact question that requires some detailed analysis to work through. In this post, I give an overview of the law in this areas and offer some thoughts.

In light of the news that British Transport Police is facing a legal challenge to this guidance, I’ve decided to make this post available in front of any paywall. I should preface that this is intended to be an overview of the law in this area. It is not formal legal advice and it is not fully comprehensive. It will, however, provide some insight into the nature of a possible legal challenge.

The Legal Default

The Police and Criminal Evidence Act 1984 (PACE) makes provision for a lawful search by a constable. Without express authority, searching someone’s person or property is unlawful and would constitute a trespass. Section 1 of the 1984 Act permits a constable to search someone prior to arrest in circumstances where he reasonably believes that he will find stolen or prohibited items. This power, along with other powers to search a person prior to arrest, is subject to s2 of the 1984 Act which provides, inter alia, that:

Neither the power conferred by section 1 above nor any other power to detain and search a person without first arresting him or to detain and search a vehicle without making an arrest is to be construed—

(a) as authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves; or

(b) as authorising a constable not in uniform to stop a vehicle.

The law relating to searches once an arrest has been made was changed with the passage of the 1984 Act: s53 states that

there shall cease to have effect any Act (including a local Act) passed before this Act in so far as it authorises—

(a) any search by a constable of a person in police detention at a police station; or

(b) an intimate search of a person by a constable;

and any rule of common law which authorises a search such as is mentioned in paragraph (a) or (b) above is abolished.

This means that the only power to search upon detention at a police station or to conduct an intimate search derives from PACE. Sections 54 and 55 of PACE provide for the circumstances when a a strip search or a EIP (exposure of intimate parts) search can be carried out. For non-intimate searches, s54(9) states that “The constable carrying out a search shall be of the same sex as the person searched”. For intimate searches involving the exposure of the buttocks, genitalia, and (female) breasts, s55(7) states that “A constable may not carry out an intimate search of a person of the opposite sex”.

The question that must now be answered is what the term “sex” means in the Police and Criminal Evidence Act 1984.

Pre-Gender Recognition Act

The meaning of sex for the purposes of PACE was a key issue in A v Chief Constable of West Yorkshire Police [2004] UKHL 21. This case involved a post-operative male-to-female transgender person whose application to become a constable in the West Yorkshire Police force was rejected on the grounds that a male-to-female transsexual could not preform the full searching duties requires of a police constable. Being biologically male, it was not lawful for A to conduct intimate searches of women and having the appearance of a woman, it was not practical for A to search men.

This case was decided before the Gender Recognition Act (GRA) was passed but after European Union law and European Human Rights law both required the UK to have some system of recognising in law the acquired gender of a post-operative transsexual. Without an Act of Parliament, it fell to the judiciary to provide a suitable legal framework to give effect to these obligations.

In 2004 the Supreme Court, drawing on these European obligations, decided that for those post-operative transsexuals who “passed” sufficiently well, the law would treat them as if they had changed sex. Lord Bingham concluded that

“effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 [Police and Criminal Evidence] Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the 1975 [Sex Discrimination] Act, as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search”.

Leaving aside how the visual test is undertaken and by whom, this displays, at best, a remarkable ignorance and, at worst, a shocking indifference to the human rights of women who do not consent to being intimately searched by males, regardless of how effectively they have altered their physical appearance. Among other things, it fails to account for the reasonable objection that may come from women who have been victims of male violence, including sexual violence, or women who, for religious or other reasons, simply cannot be in a state of intimate undress with males who are not in their immediate family. Nevertheless, that was the law according to the UK’s Apex court until the passage of the Gender Recognition Act 2004.

Post-Gender Recognition Act

Before the passage of the GRA, it was up to courts to determine how the UK would meet its obligations to provide some system of legal gender recognition. The system chosen by the judiciary was one involving a very high standard to be met (post-operative indistinguishability fro the target sex) but which afforded extraordinarily far reaching consequences, including an entitlement to intimately search the a person of the target sex, including their body orifices.

I should note at this point that the law permits someone to refuse to be searched by any individual if they request so. This cannot be a solution to this issue however because it relies on a vulnerable woman voicing her objection in a context where she may feel unable to do so. Indeed, if Lord Bingham’s test was correct, the likelihood of this objection being raised would be low because we would be dealign with individual officers who “passed” so well as to be indistinguishable from a member the target sex. The idea that this could make an intimate search of bodily orifices more likely to violate the human rights of women, not less, did not occur to the Court in A.

I will return to that issue below. For now, it is important to note that the enactment of the Gender Recognition Act 2004 changed this law. There was no longer any obligation to undergo surgery and no mention of a requirement to be “visually and for all practical purposes indistinguishable” from a member of the target sex. Equally, there was no longer a blanket policy that changed an individual’s sex for all legal purposes.

Instead, the Gender Recognition Act opted for a legislative scheme that is easier to meet (requiring paperwork, a diagnosis of gender dysphoria, and time) but which dramatically limits the consequences envisaged by the Court in A. The GRA contains several carve-outs that limits the effect of a Gender Recognition Certificate and a general provision in s9(3) that limits the effect of a GRC if there has been provision made by any other Act.

The precise scope of s9(3) is to be decided by the Supreme Court in a case due to be heard next week - For Women Scotland v The Scottish Ministers. I think, however, that we can draw on the law as it has developed since 2004 to conclude that the correct reading of the references to “same sex” in PACE must engage s9(3), disapply the GRA and revert to the settled common law position that sex means biological sex.

When sex must mean biological sex

In the lower courts in For Women Scotland v The Scottish Ministers, Lady Haldane noted that the GRA will not modify the meaning of legislation “where it is clear that ‘sex’ means biological sex”. The example she used was the Forensic Medical Services (victims of Sexual Offences) (Scotland) Act 2021, “where references to the sex of the forensic medical examiner can only mean, read fairly, that a victim should have access to an examiner of the same biological sex as themselves”. That Act did not expressly invoke s9(3) GRA, nor did it mention the term “biological sex”. Rather, the Act, interpreted with due attention paid to its purpose and the absurdity that would arise in s9(1) was engaged, would only fairly have meant biological sex. This approach was affirmed by the Inner House of the Court of Session on Appeal.

This is the legislative scheme at play now. Unlike the pre-GRA approach of post-operative indistinguishability, the current law requires analysis of the purpose and context of the relevant legislation to determine if a reference to sex can only fairly mean biological sex. In areas of government bureaucracy, it is entirely reasonable to conclude that the GRA intended to change an individuals sex for the purpose of marriage or death or pensions or anything that does not engage the fundamental human rights of others. But where those rights are engaged, especially in contexts involving intimate examination of genitals or searching of body orifices, a reference to sex of the examiner can only mean, read fairly, an examiner of the same biological sex.

There is a strict obligation on courts under s.3 of the Human Rights Act to, as far as possible, interpret statute to be compatible with Convention rights. This will include the human rights of trans people to recognition and to be free from discrimination as well as the human rights of others who may be affected by a definition of sex which departs from the ordinary meaning.

For women and girls, the enjoyment of several fundamental human rights are secured by virtue of single-sex services: the right to life (Article 2 ECHR), freedom from inhumane and degrading treatment (Article 3 ECHR), the right to respect for private life (Article 8 ECHR) and the right to non-discrimination in the enjoyment of ECHR rights (Article 14 ECHR). States are under positive obligations to secure the protection of these rights and, while they are afforded a margin of appreciation in how they do so, consideration must be given to interpretation of statute which would be incompatible with Convention rights. Where there is a possible reading of legislation which secures the enjoyment of these rights, courts must adopt that.

With regard to strip searches, there is an ever present risk that an Article 3 ECHR violation of the right not to be subject to inhumane or degrading treatment can occur. The European Court of Human Rights has been clear that even single instances of strip searching could amount to degrading treatment in view of the manner in which the strip search was carried out, the possibility that its aim was to humiliate and debase and where there was no justification for it. For example, in Valašinas v Lithuania, 2001, § 117, the Court found that that requiring a man to strip naked in the presence of a woman, and then touching his sexual organs and food with bare hands was a breach of Article 3.

Taking all of this together, I am of the view that references to “same sex” in PACE, particularly as they relate to intimate searches, can only be fairly read to mean same biological sex. The reasoning of the court in A has been superseded by s9(3) of the Gender Recognition Act and the subsequent case law that we have on its interpretation. Whatever used to be the case pre-GRA, the current law provides for a clear mechanism whereby the effect of a GRC will be disapplied in circumstances where a reference to sex can only fairly mean biological sex. Even without s9(3), I am of the strong view that s3 of the Human Rights Act would require the same reading of PACE.

The current policy which permits intimate searches on the basis of GRCs is therefore unlawful in my view because it contradicts the statutory framework in PACE, properly interpreted. Based on the new statutory framework which includes s9(3) GRA and the interpretation that has been made of s9(3), it is an error of law to presume that all references to sex in PACE are references to legal sex. Where the context and the human rights of women require a biological reading of sex, s9(3) will be engaged to disapply the GRA. That is the only fair reading of the interaction between PACE and the GRA in my view.