Police should not strip search trans people of different sex, court told

Danny Halpin – PA Law Reporter

Police officers should not strip search trans people of a different sex, the High Court has been told.

The charity Sex Matters is bringing legal action over interim guidance published last year allowing cross-sex searches.

It says the National Police Chiefs’ Council (NPCC) and British Transport Police (BTP) acted unlawfully in issuing the guidance to officers.

The NPCC and BTP are defending the claim, saying that the guidance allows cross-sex strip searching with trans people as long as there is consent between the officer and the person being searched.

The dispute centres around the interpretation of the Police and Criminal Evidence Act (Pace), part of which says that officers should only strip-search people of the same sex.

Tim Owen KC, for Sex Matters, said in written submissions for a hearing on Tuesday that the guidance breaches this law, which “enacted a same-sex guarantee which amounts to a statutory duty and which cannot be breached through the police unilaterally creating a consensual regime in contradiction to it”.

He said the NPCC and BTP “failed to properly consider the impact on female police officers and female detainees in participating in a ‘consensual’ opposite-sex strip searching regime”.

The barrister also told the court that being in custody raises questions over the validity of any consent given.

Fiona Barton KC, for the NPCC and BTP, said in written submissions: “Even with every precaution taken, being strip searched or intimately searched has the potential to be demeaning, embarrassing and distressing.

“The risk of that is obviously potentially heightened for a person who identifies as one gender being searched by a person of a different gender, even if they are the same biological sex.”

She highlighted a scenario whereby a male officer may inspect a trans woman with surgically constructed female genitalia or vice versa.

The guidance was designed to get around these “particularly acute issues”, Ms Barton added, by “permitting cross-sex strip searching where both the detained person and the officer freely and fully consent to that process”.

The hearing, before Mr Justice Linden, is due to conclude on Tuesday with a judgment given at a later date.