I’ve just been pointed at the new Police and Criminal Act Code of Practice and the Home Office have (I think without consultation with the community but I’m trying to verify that) produced new rules on searching Trans folk. This isn’t in force yet and the document is still a “Final Draft”, but my understanding is that it’s probably too late to do much to change it. As it stands, they’ll probably come in to force later this year, although they did reach me via the political process so perhaps there is room to exert some influence.
Actually, the rules apply to anyone whose gender isn’t clear but it’s clearly been written with Trans people in mind. I predict problems when searching cis people who look “a bit odd”!
In one respect, the rules are possibly a good thing given that at the moment it would (I assume) be down to the officers discretion at the time. This is currently open to more opportunity for massive failure and prejudice than after these rules come into force.
The original document is available online and it’s Annex F on page 26 that’s Trans-related. To save you opening the PDF, I’ve reproduced it, slightly edited for brevity, at the end of this post.
My first reaction, and the reaction of a couple of other trans folk who have seen this, is that the GRC mention may be problematic. They do need to cover this as it’s important that if someone does have a GRC they must be treated as their acquired gender. However, I’m not a fan of the phrasing, which is just going to cause police to ask folk on the street for a copy of their GRC, as happened with the Toiletgate 2008 incident. I would suggest that gender markers on other official documents (which of course, people are not obliged to either carry or produce!) should be sufficient here.
It’s not awful – there are far worse things out there such as the prison service guidelines – but it’s a bit clunky and I’m really not sure what the objective of it was when writing it, so it’s hard to formulate a quick response beyond “Huh?”. There’s mention of “causing embarrassment” presumably to the officer doing the searching, so I do wonder if they’re concerned about the contents of someone’s underwear more than anything else. (Something that is of course unrelated to the gender specified on one’s ID)
Another point that came up was that it does assume a binary approach to gender which isn’t ideal, but the other sections upon which the code is based (“searches…may only be carried out by, or in the presence of, persons of the same sex“) mean that it would probably be futile trying to fix this here.
P.S. I’ve heard from elsewhere just as I post this that at least some police forces training on Trans issues is not to ask for a GRC – so PACE may now conflict with that.
ANNEX F ESTABLISHING GENDER OF PERSONS FOR THE PURPOSE OF SEARCHING
1. Certain provisions of this and other Codes explicitly state that searches and other procedures may only be carried out by, or in the presence of, persons of the same sex as the person subject to the search or other procedure.
2. All searches should be carried out with courtesy, consideration and respect for the person concerned. Police officers should show particular sensitivity when dealing with transsexual or transvestite persons. The following approach is designed to minimise embarrassment and secure the co-operation of the person subject to the search.
3. At law, the gender of an individual is their gender as registered at birth unless they possess a gender recognition certificate as issued under section 9 of the Gender Recognition Act 2004, in which case the person’s gender is the acquired gender.
(a) If there is no doubt as to the sex of a person, or there is no reason to suspect that the person is not the sex that they appear to be, they should be dealt with as that sex.
(b) A person who possesses a gender recognition certificate must be treated as their acquired gender.
(c) If the police are not satisfied that the person possesses a gender recognition certificate and there is doubt as to a person’s gender, the person should be asked what gender they consider themselves to be. If the person expresses a preference to be dealt with as a particular gender, they should be asked to sign the search record, the officerâ€™s notebook or, if applicable, their custody record, to indicate and confirm their preference. If appropriate, the person should be treated as being that gender.
(d) If a person is unwilling to make such an election, efforts should be made to determine the predominant lifestyle of the person. For example, if they appear to live predominantly as a woman, they should be treated as such.
(e) If there is still doubt, the person should be dealt with according to the sex that they were born.
5. Once a decision has been made about which gender an individual is to be treated as, where possible before an officer searches that person, the officer should be advised of the doubt as to the person’s gender. This is important so as to maintain the dignity of the officer(s) concerned.