Last week Superintendent Clinton Blackburn sent out a tweet announcing the official launch of the ‘National Trans Tool Kit’ developed in association with Conservative Police and Crime Commissioner for Surrey, David Munro; the National Police Chiefs LGBT+ Lead and Assistant Chief Constable of the Merseyside Police, Julie Cooke; The Police Superintendents’ Association; The National Trans Police Association (NTPA); The National LGBT+ Police Network; and LGBT charity Stonewall UK.
Purportedly, the chief objectives of the guidance provided within the toolkit is “to provide as much help and support as possible… (and) help forces to ensure they are providing the right support for trans colleagues” (ACC Julie Cooke, Trans Guidance for the Policing Sector: An Overview); the overarching aim to bring clarity and consistency across the UK.
After reading and scrutinising the content of the reports referenced within the original tweet several concerns have been raised regarding a broad range of inconsistencies, areas where further clarification is needed and -what to the best of our knowledge seems to be- the complete absence of any attempt to carry out or include the results of an equality impact assessment in relation to the potential consequences of the terms, guidance and procedures that form the guidance.
Is ‘Transphobia’ A Criminal Offense?
The Toolkit adopts what we assert to be multiple highly contentious definitions within the glossary, overview and managerial documents. Specifically (though we are keen to point out that this glossary also repeatedly refers to sex as being “assigned at birth” and conflates sex and gender throughout), we, alongside many members of the gender critical community, were extremely concerned about the inclusion of the following passage-
In accordance solely with the definition that was initially provided to us within the Toolkit, it appeared that the UK Police had unilaterally decided to expand its definition of a crime to include any action (including holding a belief and refusing to affirm a belief one doesn’t share) falling under Stonewall’s own interpretation of transphobia.
The notion that holding a particular belief and expressing that belief constituted a criminal offence in its own right seemed to be in total contravention UK criminal law. Our concerns regarding the potential impact this particular definition of ‘hate crime’ were shared by esteemed academic and feminist Professor Rosa Freedman (Professor of Law, Conflict and Global Development at the University of Reading and contributor to the recent Guardian article concerning the potential legal ramifications of proposed reforms to the Gender Recognition Act: ‘'Shifting sands': six legal views on the transgender debate’).
Kindly responding to our request for her legal expertise on this matter, Prof. Freedman expressed particular concerns regarding the manner in which “loaded terms” such as “hate crime” are being adopted in a deliberate attempt to silence dissenting voices and achieve discursive dominance by “shaming people into silence”. A definition of hate crime that seems to include expressing or even holding certain beliefs is deemed by Prof. Freedman to be an attempt to “police our very thoughts” in direct contravention to criminal law.
While conducting research for this article, MMN! were granted an exclusive interview with a retired senior police officer -referred to henceforth as ExPO- who held the post of LGBT Liaison Officer during their years of service (presumably one of those officers for whom this Toolkit was supposed to provide clarity and guidance). The response we received to our question regarding the definition in question and its potential ramifications echoes the aforementioned concerns;
“It goes past risking impinging upon freedom of expression and into the territory of thought policing”
MMN!: Would this ‘Transgender Toolkit’ have provided you with sufficient clarity and guidance to give you confidence to carry out your duties specifically with regards to what constitutes a transphobic hate crime? (“TRANSPHOBIA: The fear or dislike of someone based on their being trans, including the denial/refusal to accept their gender identity. Any incident of transphobia; any form of prejudice or hatred toward a person because of their actual or perceived transgender, is considered a transgender hate crime”)
ExPO: Who is that considered a hate crime by?
MMN!: That is the definition provided in the glossary of the recently released official police guidance document
ExPO: So fear of transgenderism is a hate crime?
MMN!: Our reading of the definition suggests that would be the case: can you give us your comments regarding the potential implications if our interpretation is correct, given how as it stands, based on our reading of the law and following further advisement from other legal experts, ‘hateful’ thoughts or speech acts do not constitute a crime unless the speech act incites, or formally discriminates, or is an aggravating factor in a crime.
ExPO: (Nods) No it’s not a crime. Accepting that I’m retired now… Is any person’s general unease about transgenderism recorded as a crime and investigated as such… with what sanctions… by the police service? I will accept and 100% agree that no person should be discriminated against or adversely treated, especially by police personnel, because of their gender identity, and that in some cases, should this happen, this would be a disciplinary matter. But, as per this definition.. remind me of the definition. [MMN! repeat definition] Fear or dislike is a very subjective description…
MMN!: Can we perhaps draw your attention to the inclusion within the definition of the phrase ‘denial or refusal to accept their gender identity’
ExPO: Denial or…? It sort of doesn’t make sense that… it seems inconceivable that… say it again. [MMN! repeat definition] So… basically. This one is difficult. Do they identify as a different gender or a different sex? So sex can’t change but gender identity can right? So me expressing that view is a hate crime? And if I hold that view, which is controversial and subject of significant public debate at this time, am I guilty of a crime? If by holding a view that sex cannot change, biological sex cannot change, but gender identity can, am I guilty of transphobia? Is that right? have I committed a crime?
MMN!: Haha, we were hoping you may be able to tell us! We are equally perturbed by this and feel this issue needs to be rapidly and thoroughly clarified… can we interpret from your response that you would not feel that the definition provided in the pack is something you would consider to be clear, or have confidence trying to implement?
ExPO: Yes. Absolutely. THAT definition, seems to be the one area of these papers that perhaps adopts solely Stonewall’s stance on transphobia; which does not reflect the current debate about sex-based identification as opposed to gender identity. It goes past risking impinging upon freedom of expression and into the territory of thought policing.
So it would appear that the concerns and calls for clarification following the inclusion of this definition of transphobia and hate crime in an official police guidance document were shared not only by gender critical feminists, leading academics and active barristers, but indeed by the very individuals the guidance was produced for.
Supt. Blackburn’s U-Turn
On the 15th November, Yorkshire-based academic and freelance musician Jonathan Best (@JonnnyBest) published an article on Medium entitled “Believe in innate gender, or else — say the police." Shared by hundreds of individuals in the hours following its publication, Best’s article highlighted how inclusion of the aforementioned definition of transphobia -and the manner in which this definition was explicitly linked to hate crime- within the glossary could be interpreted in one of two ways: “neither reflect(ing) well on the police”:
“Either the authors of the document don’t understand hate crime legislation, or they believe that the police now have the authority to change existing law by publishing a document.”
It seems that the combined efforts of the general public, feminist activists and Best’s scathing analysis did not go unrewarded, with Supt. Blackburn appearing to make a substantial U-Turn in the update posted on Twitter:
Whilst we appreciate that ‘errors’ can and often do occur, and welcome the news that the Glossary has been amended to exclude the assertion that “any incident of transphobia; any form of prejudice or hatred toward a person because of their actual or perceived transgender, is considered a transgender hate crime”, we can’t help but find the tweet rather disingenuous.
We caught up with Best to gain a more thorough understanding of his thoughts on the matter. We would like to thank him for allowing us to publish his response in full:
“The removal of the second half of the definition’s text is welcome, of course - but Supt. Blackburn’s claim that the initial presence of this text was an ‘error’ lacks plausibility. This is an official police document, produced in partnership with Stonewall and the Surrey Police and Crime Commissioner.
It was checked - and then it was checked again, and again, by all the development partners. That’s how collaborative public sector policy documents are produced.
At best, Supt. Blackburn is not being transparent - at worst, he’s disingenuous”
It is important in instances like these that appropriate action is taken to prevent them being repeated. The Police seem to be go beyond including lobbyists in an advisory capacity during their policy making processes, instead, uncritically deferring to their expertise despite such groups having an vested and agenda This practice leads to errors like the above being included in police policy.
The Toolkit definition expanded upon Stonewall’s definition, adding in a second sentence: “Any incident of transphobia; any form of prejudice or hatred toward a person because of their actual or perceived transgender, is considered a transgender hate crime”. Given how other Police officers comprise the intended recipients of this guidance, it is our opinion that the inclusion of this sentence was deliberate, and designed to further Stonewall’s attempts to criminalise those who hold a different belief and refuse to adopt their ideology. We also assert that when involving external organisations in an advisory capacity, the police cannot and must not abdicate their responsibility to ensure the input they receive is in line with the law. Many in the Gender Critical community echo our concerns.
In his article, Jonathan Best provides a succinct summary that echoes our concerns:
“(Stonewall’s) client organisations across the UK trust Stonewall to represent the interests of LGBT people and give sound advice.
They shouldn’t. Not any more…
The publication of the trans tool kit illustrates the risks to all organisations which choose to rely on Stonewall for advice on transgender issues. The police have stumbled into a complex area which they appear not to properly understand — and Stonewall is not telling its client organisations the whole story.”
We join him in highlighting this incident as a clear example of the risks faced by organisations who, often in an attempt to ensure their policies are inclusive, non-discriminatory and progressive, take Stonewall’s word as gospel truth.
Searching
Though the Trans Toolkit itself fails to address the issue of police searches (instead choosing to signpost officers to PACE guidance) many individuals have expressed concern and alarm over the potential implications that trans officers’ gender identities being officially affirmed by their employers may have on their right to be searched by an officer of the same sex.
Concerns have so far been raised about the possibility this may lead to female officers being asked or expected to conduct intimate searches on biologically male detainees who identify as women and male officers being asked/expected to conduct intimate searches on biologically female detainees who identify as men. A particularly notable Tweet sent out by a former female police officer expressed her fears that, under these new guidelines, she may be compelled to search a biologically-male trans detainee or face repercussions should she refuse:
“Intimate searches are embarrassing and awkward for both parties here (ex cop here). The thought of having to confront male body parts in this task is just awful. How could this be allowed what about the rights of the person tasked with doing the search?”
Many individuals (women in particular) have also professed extreme distress and outrage concerning the notion that if they were ever arrested, they could face the possibility of being intimately searched by a biologically male trans officer when at their most vulnerable. Several have explicitly stated that they would only consent to being searched in such a manner by an officer of the same sex and refuse to allow a biologically male officer to conduct such a search. When asked to sum up her response for the purposes of this article, one of the individuals who have raised their concerns on Twitter @PocketHanky responded:
"I will never consent to being searched by a male police officer who claims he is a woman. I will resist this violation with every bone in my body. My body is not there to validate his delusions"
Several women have gone as far as seeking out legal advice on how best to ensure their sex-based rights are not violated should they find themselves subject to a police search. Twitter user Vulvamort (@HairyLeggdHarpy) sent out the following appeal for assistance:
“Lawyers. I want to make a statutory declaration that whilst my SEX is female, I do not have a female GENDER. I want to protect my right NOT to have others claim common 'gender' with me.I want no police search to be conducted on the false assumption that I am gendered. Help?
I'm deadly serious about this, BTW. If I have to carry around a legal document or wear a bracelet like a medical allergy one I will. If we've created a law to recognise gender we can also recognise NO GENDER legally too. So let's get some official protection. Please retweet.”
Others have asserted they would treat any such attempts as a sexual assault or human rights violation and take formal legal action:
“You mean the national molest women toolkit! This is unlawful sexual assault. If any male born person touches my intimate areas I’m filing a lawsuit for human rights violations. This is perverted sexual abuse”
“Woman who’s been arrested here. I’m concerned that male officers can ID as women & then search / strip search women. This is 100% unacceptable & would be perceived by me as sexual assault. So whose perception is prioritised? The male officer? The naked female detainee?”
“And what about women like me who have been gang-raped? Might I have to be strip-searched by penis-people if they ‘identify’ as women? What about the trauma inflicted upon me? I would sue.”
Finally, there are those who, like Dr Sophie Allen (@sophie_r_allen), raise the issue of the implications this could have for other groups with protected characteristics. Several individuals have raised particular concerns regarding whether or not any provision has been made in ensure the rights of Muslims, Sikhs and Orthodox Jews are not at risk of being violated as a consequence of these changes:
“What would happen if a female whose religion forbids them to be searched by a male bodied person is told they must be searched by a male bodied person as that male bodied person identifies as female? Whose ideology takes precedence here?”
“Can you answer this specific question please: does a Muslim woman (or other religious group) have to accept a body search from a trans woman officer? Or do they have the right to refuse? I am simply asking for information because a Muslim woman friend has asked me to ask. Thank you.”
Whilst Supt. Blackburn has now clarified some of the concerns raised in response to his original tweet, he has not yet responded to the myriad requests regarding the potential implications of this current iteration of police policy on the aforementioned concerns. Having apologised in his follow-up to the Transgender Hate Crime matter for causing any distress, we find the absence of a similar update regarding ‘Searching’ very worrying.
Further to these concerns, GirlScout72 (@GirlScout72) raises the broader question of the extent to which (if at all) the authors of the report have formally assessed the potential impact of these proposed changes on persons with protected characteristics.
Following our consultation of ‘The Public Sector Equality Duty and Equality Impact Assessments Report’ Section 3, we conclude that though formal Equality Impact Assessment documents are not mandatory, the government guidance currently refers to the EHRC regarding the matter of assessing the potential “disparate” impact of proposed changes to policy on persons with protected characteristics:
“Assessing the impact on equality of proposed changes to policies, procedures and practices is not just something the law requires, it is a positive opportunity for public authorities to ensure they make better decisions based on robust evidence. The assessment does not necessarily have to take the form of a document called an Equality Impact Assessment (EIA) but you can choose to do so if it is helpful. It will help you to demonstrate compliance if you:
Ensure you have a written record of the equality considerations you have taken into account. Ensure that your decision-making includes a consideration of the actions that would help to avoid or mitigate any negative impacts on particular protected groups. Make your decisions based on evidence. Make your decision-making process more transparent”
Supt. Blackburn has yet to respond to GirlScout72’s request.
Upon further review of the site on which the Trans Toolkit is published MMN! decided to broaden our quest for clarification. Amongst the other resources available to download from the National LGBT Police Network’s official website is the ‘LGBT Liaison Officer’s Manual of Guidance’: described by Deputy Assistant Commissioner of the Met, Mark Simmons, as a manual designed to highlight “key human resource and support products, contact details of internal and external partners (including key Non Governmental Organisations) as well as other essential information regarding the policing of Public Sex Environments”.
Unlike the recently released Trans Toolkit, the manual includes material that seems to explicitly relate to the concerns that have been highlighted; regarding the protection of an officer or detainee’s rights, beliefs and dignity to conduct a search or be searched by a member of the same biological sex respectively:
Section 9.5 of the Manual specifically addresses whether or not "a trans person (is) restricted in what role they can perform" in the police service. Whilst the manual clearly states that “trans police officers and police staff with searching roles may be required to be exempted from more thorough custody searches or intimate searches” it goes on to expressly exclude officers or staff in possession of a Gender Recognition Certificate from this proviso.
This guidance leads us to conclude that, so long as they are in possession of a GRC, a biologically male officer would face no formal barriers to conducting intimate searches on a biologically female detainee or vice versa. Whilst section 10.1 pertains specifically to “searching trans people”, we deem its content to be relevant to concerns over both the rights of the officers expected to conduct such searches, and those of individuals who insist upon their right to be searched by an individual of the same biological sex. The manual states that “in the custody suite, where a more thorough search is likely to be required, an officer of the same gender as the prisoner will be required to conduct such a search”. The guidance continues; “where there is an objective, honestly held doubt about a person’s gender on behalf of the decision maker, every effort must be made to establish the person’s own definition of their gender status”. It is stated that the detainee may not be asked about whether or not they hold a GRC. Instead, officers are advised to “ask the prisoner what gender they consider themselves to be and then treat them in that gender”. In conclusion, the section advises officers that “not all people who are transsexual will have had full corrective surgery - some may still have genitalia of their previous gender...however they must still be treated according to the gender they prefer or present as”.
Regarding the impact of this guidance on the rights of individual officers, we interpret this section to suggest officers are expected to conduct searches on detainees of the same gender based on self-ID alone regardless of the detainee’s genitalia. The guidance makes no reference to whether or not an individual officer may opt out of searches should they feel uncomfortable; failing to address or even acknowledge the possibility that this content of this guidance has implications pertinent to both the detainee and those tasked with conducting the search. Though it does not explicitly state an officer cannot opt out of such searches, this is in itself indicative of a failure to show enough due care and attention to the impact of such requirements on the individual officers.
Regarding the fact this guidance states that only an officer of the same gender must conduct a more thorough search, we feel this information could easily be misinterpreted as implying the right to be searched by an officer of the same biological sex has been superseded by the right to be searched by an officer of the same gender.
In order to ascertain the extent to which the decision to reference “gender” as opposed to “sex” in this context was representative of the advice provided throughout the UK on this issue, we conducted an analysis of the language used within official advice, guidance and procedural documents from all 45 Police Forces. We assigned each force to one of three categories: those referencing “gender” in the context of intimate searches (G); those referencing “sex” (S); and those who either didn’t specify, used both or lacked clarity (Not Specified or Unclear - NSoU). Our results indicate a worrying lack of both cohesion and clarity on the part of the forces tasked with carrying out these searches.:
After reviewing both the information provided in the Toolkit and the LGBT Liaison Officer’s Manual of Guidance pack, we interviewed our ExPO source again:
MMN!: Do the clarifications in the LGBT Liaison Officer’s Manual of Guidance, section 9.5 Is A Trans Person Restricted In What Role They Can Perform In The MPS and 10.1 On Searching Trans People clarify this or raise more questions?
ExPO: It clarifies it, and I am sure that PACE will reflect or may already reflect these changes in practice.
MMN!: Based on the concerns raised by many individuals including ourselves since this pack was released… What do you feel about the assertion that “in the custody suite where a more thorough search is likely to be required, an officer of the same gender as the prisoner will be required to conduct such a search”? concerns have so far been raised about the possibility this may entail female officers being asked/expected to conduct intimate searches on biologically male detainees who identify as women and male officers being asked/expected to conduct intimate searches on biologically female detainees who identify as men. Many women in particular have also stated extreme concern over the notion that if they were ever arrested, they could face the possibility of being intimately searched by an officer: declaring that they would only consent to being searched by an officer of the same sex and refuse to allow a biologically male officer to conduct such a search. The guidelines here seem to suggest that an officer of the same ‘gender’ but different biological sex could carry out the search.
ExPO: To my knowledge, unless PACE has been changed since my retirement, the LGBT guidelines for searching, provide a practical and easily understood set of guidelines for searching transgender detainees. It does not provide guidance on the use of transgender employees in such circumstances. This lack of clarification would provide difficulties, potential difficulties, when eg. biological males who identify as women and presumably are known or accepted as such by colleagues, search biological female detainees. This conflict requires clarification and perhaps exception either via case law or amendment to, searching codes of practice… since the rights of the detainee (which are paramount when in custody) could be breached by the rights of transgender staff; if as the report states, it is forbidden to disclose this fact to the detainee.
MMN!: So how, if you didn’t know an officer was trans, or were unable to disclose this fact to the detainee, would you be able to protect a female’s right to being searched by another female?
ExPO: Most trans officers/staff will be known as being such by their colleagues. Surely they have a duty to ensure the rights of the detainee to be searched by a member of the same sex?
MMN!: According to the LGBT Liaison Officer’s Manual of Guidance, “Where an employee reveals information about their gender identity, the recipient of such information must keep it confidential and must not disclose it to a third party without that individual's consent. This includes information provided to the line manager when the employee is transitioning. Disclosure of this information would constitute harassment and in some cases legal action could be taken.”
ExPO: But there have to be exceptions?
MMN!: It is our belief that it is a criminal offense to disclose the fact an individual is trans if they have obtained a GRC
ExPO: Right. Then that is that. The fact that may potentially infringe on the detainee’s rights to be searched by a member of the same sex, has presumably been considered by ACPO prior to the publication of these guidelines.The guidelines will provide protection to individual staff when implementing them, and if this is to be challenged, it would need to be by a detainee/s who felt that their rights/protections were illegally infringed upon by this practice.
MMN!: Just taking this to its logical conclusion perhaps, how would a female seek recourse for being searched intimately by a biological male officer, if she was not even allowed to be made aware that the officer was male?
ExPO: They can’t unless they find out. And they’d never be officially told because it’s illegal according to this document to do so.
MMN!: In Malta, the current ‘Trans, Gender Variant, & Intersex Inmates Policy (August 2016)’ states that “Rubdowns and body searches should be conducted in accordance with the inmate’s gender marker, rather than their sex characteristics (primary or secondary). Searches on inmates may be monitored by a Senior Correctional Officer. For some prison staff, rubdowns and body searches can be one of the most emotive and difficult aspects of dealing with trans, gender variant and intersex inmates. Nonetheless, all inmates must be searched in accordance with this policy, Prison Regulations and security standards. Any staff concerns about performing searches on trans, gender variant and/or intersex inmates should be initially addressed through the provision of additional staff training and information about human diversity, gender identity, gender expression and sex characteristics as well as equality obligations”. Again, in Scotland, the policy appears to be “People in custody should be body searched in accordance with the social gender in which they are living. Where the people in custody’s social gender is unclear, the person in custody must be asked which gender they wish to be searched by and their answer recorded and the body search conducted accordingly… Any staff concerns about performing searches on transgender people in custody should be initially addressed through the provision of additional staff training and information about gender reassignment and equality requirements”. How do you feel male and female officers may be affected by the guidance in this pack, which seems to not take into consideration, the feelings or dignity of the officers who would be responsible for conducting the search?
ExPO: I would refer you back to your definition of transphobia and what constitutes apparently a hate crime. [NB: this refers to the original official definition provided in the Toolkit’s Glossary] whilst I would normally have acceded to the preferences of individual staff, when searching transgender detainees, my interpretation (albeit maybe confused at this stage) of what constitutes a transphobic hate crime suggests that any member of staff expressing discomfort or unwillingness to search same ‘gender’ trans detainee, could be viewed as thereby committing a transphobic hate crime. Ergo… I do not think, once this was known, that such preferences or views would be expressed, due to fear of criminal or disciplinary action being taken against them.
After the conclusion of this interview, the interviewee reached out to MMN following their own further research on the subject and identified the most pertinent sections of 2018 Police and Criminal Evidence Act Guidance Document (Code C)
The following sections of the guidance document seem to directly contradict the worrying assertion within the LGBT Liaison Officer’s Manual of Guidance that “in the custody suite, where a more thorough search is likely to be required, an officer of the same gender as the prisoner will be required to conduct such a search”;
- Code C 1.13 (c) Where a search or other procedure to which this Code applies may only be carried out or observed by a person of the same sex as the detainee
- Code C 4.1 (b) The custody officer may search the detainee or authorise their being searched to the extent they consider necessary, provided a search of intimate parts of the body or involving the removal of more than outer clothing is only made as in - Annex A. A search may only be carried out by an officer of the same sex as the detainee
- Annex A (6) When an intimate search under paragraph 2(a)(i) is carried out by a police officer, the officer must be of the same sex as the detainee (see Annex L)
- Annex A (11) When strip searches are conducted: (a) a police officer carrying out a strip search must be the same sex as the detainee (see Annex L); (b) the search shall take place in an area where the detainee cannot be seen by anyone who does not need to be present, nor by a member of the opposite sex (see Annex L) except an appropriate adult who has been specifically requested by the detainee
However, any firm reassurances drawn from the earlier parts of Code C quickly dissipate upon reaching Annex L:
(a) Consideration
3. In law, the gender (and accordingly the sex) of an individual is their gender as registered at birth unless they have been issued with a Gender Recognition Certificate (GRC) under the Gender Recognition Act 2004 (GRA), in which case the person's gender is their acquired gender. This means that if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman and they must be treated as their acquired gender. #
ACPO Clarifies Best Practice
After reading the exercise in linguistic gymnastics of Annex L, in which gender is stated to be registered at birth, humans are described as being able to change sex upon receiving a Gender Recognition Certificate and the distinction between sex and gender is fuzzy at best, we decided to investigate further.
During our attempt to clarify this matter, we stumbled upon an article written by Jane Fae, entitled ‘New search rules for trans police officers and suspects drawn up’; first published on Pink News in the Summer of 2012. The content of the article was so alarming that we have taken the decision to include a substantial portion of the article below.
“New guidelines on the searching of suspects made it clear that there should no longer be any obstacle to trans officers carrying out intimate and body searches of suspects of the appropriate gender. This follows a change in advice to police forces issued by the Association of Chief Police Officers, overturning guidance in place since 2005 and bringing the Police into line with current legal rulings on this matter.”
“The issue arose in 2005, as ACPO issued what they then considered best practice guidance to police forces on searches of suspects by trans officers. Under PACE rules, non-intimate searches could be carried out by officers of either gender: but intimate and body searches could only be carried out by officers of the same gender as the suspect.”
“ACPO guidance therefore stated that officers in possession of a gender recognition certificate – which amends the gender on an individual’s birth certificate and renders them for almost all legal purposes the gender they identify as – could carry out such searches on individuals whose gender matched that now recorded for the officer. However, officers not in possession of a GRC – even those who had fully transitioned – would not be permitted to do so. This was not a block on employing trans officers: but it led to the practice, in forces such as the Met, of issuing “search exemption certificates”, which opted trans officers out of doing body searches.”
“At the same time, this guidance was potentially at odds with a House of Lords ruling from the previous year (A v West Yorkshire Police (2004)), which held that no-one of a particular gender could reasonably object to being searched by a “transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender”. Some forces, most notably the West Midlands, therefore treated individuals as their identified gender from the point at which they underwent “social transition”.”
“ACPO lead on Lesbian, Gay, Bisexual and Transgender issues, Assistant Chief Constable Steph Morgan therefore wrote to Chief Constables and Commissioners on 24 May, advising them of a change in ACPO’s advice on this matter – and specifically over-turning previous advice in respect of the need for a trans police officer to hold a GRC.”
“Speaking exclusively to PinkNews.co.uk, Ms Morgan told us: “In response to requests from forces for guidance on trans staff searching detainees, ACPO sent a letter to all forces clarifying best practice on this issue. This letter sent in May 2012 demonstrates our commitment to dealing sensitively with transgender issues when they arise. Nationally ACPO has been working with the National Trans Police Association on trans issues and will continue to do so.”
“A spokeswoman for the National Trans Police Association welcomed the changes as a long overdue and refreshing recognition of the presence of trans individuals both in the police and in the wider community. She added: “While the ACPO guidance does not stipulate the form of rules that police forces should now adopt, it is our hope that others will now follow the Home
Office guidelines and the West Midlands in taking social transition as the start point.”
---(Jane Fae, (2012), ‘New search rules for trans police officers and suspects drawn up’, Pink News)
According to its lead on Lesbian, Gay, Bisexual and Transgender issues, Assistant Chief Constable Steph Morgan, the Association of Chief Police Officers clarified ‘best practice’ on the subject of trans staff and officers searching detainees in 2005 (if in possession of a Gender Recognition Certificate) and 2012 (based solely upon Self-ID). The 2005 guidance stated that “officers in possession of a gender recognition certificate – which amends the gender on an individual’s birth certificate and renders them for almost all legal purposes the gender they identify as – could carry out such searches on individuals whose gender matched that now recorded for the officer”. In 2012, in response to “requests from forces for guidance on trans staff searching detainees” the ACPO officially updated their advice on this matter “specifically overturn(ing) previous advice in respect of the need for a trans police officer to hold a GRC” in order to perform intimate searches on detainees of their self-identified gender.
During our conversation, Professor Freedman asserted that the law is currently a mess. Neither private nor public bodies have sufficient expertise regarding how best to proceed in the midst of a social, political and legal landscape that is unclear, highly-politicised, and in a constant state of flux. She went on to highlight how in response to this, many have resorted to deferring to, or relying heavily upon, the input of organisations such as Stonewall who she deems to be misinforming these bodies on the law in the pursuit of their “pernicious” agenda. Their endgame fundamentally boiling down to removing sex altogether and replacing it with gender.
It would appear from the reactions on Twitter that the information above will come as a surprise to most of our readers. That you, like us, have been living under the assumption that you have the right to be searched by a member of the same biological sex. Given the manner in which Annex L and the accompanying comments regarding the ACPO’s official guidance as published in pink news seem to state that following ‘best practice’ now entails allowing any officer who self identifies as a woman to perform intimate searches on female detainees, this right is at serious risk of being violated.
Off the back of this revelation we feel compelled to take further action. We call upon the ACPO to formally respond to the concerns we have regarding the implications of this guidance on the rights of female detainees. We welcome any readers who are similarly concerned to join us in this endeavour.
@NastySmurfette
Acknowledgements
Huge thanks to the following individuals for giving their time, knowledge, and comments, or allowing us to cite or use screenshots of comments made elsewhere:
Professor Rosa Freedman (@GoonerProf)
Jonathan Best (@JonnnyBest)
Dr Sophie Allen (@sophie_r_allen)
GirlScout72 (@GirlScout27)
Linda Bellos’s pocket hanky (@PocketHanky)
Vulvamort (@HairyLeggdHarpy)
Nowhere (@The LadyNirvana)