New guidance on searching trans people to help protect police – chief constable

Police Scotland’s chief constable has said it is hoped new interim guidance on searching transgender people will help protect officers against potential criminal allegations.

The guidance states officers and staff will carry out all searches which involve the removal of more than a jacket, gloves, headgear or footwear on the basis of biological sex.

It comes after the UK Supreme Court ruled in April that the words “woman” and “sex” in the Equality Act 2010 refer to a biological woman and biological sex.

The interim guidance means searches of a transgender person, whether in custody or in a stop-and-search, will be carried out by someone of the same biological sex as them.

However if someone whose lived gender differs from their biological sex asks to be searched by an officer of their lived gender, efforts will be made to find one where “operationally viable”.

In these circumstances, written consent will be required from an authorising officer, the person to be searched, and the officer(s) conducting the search.

Chief Constable Jo Farrell spoke about the guidance at a meeting of the Scottish Police Authority in Edinburgh on Thursday.

She said the force hopes it will protect officers and staff and be transparent for the public.

“This is a complex area, and the guidance is not without potential unintended consequences,” Ms Farrell said.

“However, we must ensure Police Scotland acts lawfully in meeting its duty under the Equality Act and the Human Rights Act.

“We must give officers and staff confidence that they are conducting searches lawfully.

“We must protect officers and staff from potential challenges, which could include criminal allegations.”

She said the force recognises transgender colleagues may wish to exempt themselves from these types of searches to avoid having to disclose their own gender identity.

The chief constable said officers are entitled to ask to be excused from searches for a variety of reasons and will be able to do so in transgender searches with “no career detriment”.

She added: “I want to recognise that this has an impact on people, and underline that our objectives here are to preserve people’s dignity, ensure Police Scotland and our officers and staff are acting lawfully and in line with the Equality Act and the Human Rights Act, and to protect our officers and staff from potential challenge.”

The provision of single-sex spaces in Police Scotland facilities was also discussed.

Deputy Chief Constable Alan Speirs said an audit of facilities across the estate is being carried out and the work is progressing “with a degree of haste”.

Police Scotland said the interim guidance, published on Wednesday, will be kept under review, with ongoing legal advice and engagement with key stakeholders.

The force said its wider review into sex and gender is ongoing and further updates will be issued in due course.