Stop and Search of the Person in Scotland: code of practice for constables

Annex B

Establishing Gender of Persons for the Purpose of Searching

1. Certain provisions of this Code 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 and procedures must be carried out with courtesy, consideration and respect for the person concerned. Constables should show particular sensitivity when dealing with transgender individuals (see Notes to this Annex).

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.

Searching of Transgender Persons

4. As transgender people may have biological characteristics which differ from the gender that they live in, there is potential for distress and embarrassment during searching. Application of the following guidance should minimise the potential impact when searching a transgender person.

5. If a search is begun without any knowledge that the person being searched is transgender and it only comes to light during the search then, unless the transgender person requests a different gender of searching constable to take over the search, the search should simply be completed as usual by the original searching constable.

6. If a person is thought or known to be transgender prior to a search being carried out, then the constables should ask that person

'Is there anything I need to know before I search you?'

7. A female - male trans man who still has female physical characteristics may identify strongly as a man but may request to be searched by a female constable. In such a case, the trans man should still be referred to using male pronouns and treated as a man in all other ways except in terms of the gender of the constable who searches him.

8. A male - female trans woman who still has the male physical characteristics may identify strongly as a woman but may request to be searched by a male constable. In such a case the trans woman should still be referred to using female pronouns and treated as a woman in all other ways except in terms of the gender of the constable who searches her.

9. If a person is unwilling to make such an election, the constable should try and determine the gender in which the person lives their life. This is likely to be indicated by the name, title or gender on their main identity document e.g. drivers licence, bank card etc. If the person appears for example to live as a woman, they should be treated as such.

10. Once the gender of the constable conducting the search has been established, the search should commence. The transgender status and appearance of the person being searched should not be commented upon. If any physical variation is encountered due to gender reassignment during searching, the constable should maintain a professional and respectful manner as per any physical variation encountered due to disability during searching.

Note: It may be necessary to share information about the person's gender identity with other custody related organisations and other police staff. Such disclosure should only be made in relation to the transgender person when to do so would be relevant, legal, proportionate and fair.

Documentation

11. The person's gender as established above must be recorded in the person's custody record or, if a custody record has not been opened, on the record of search or in the constable's notebook.

12. Where the person elects which gender they consider themselves to be but is not treated in accordance with their preference, the reason must be recorded in the record of search, in the constable's notebook or, if applicable, in the person's custody record.

Disclosure of information

13. Section 22 of the GRA defines any information relating to a person's application for a GRC or to a successful applicant's gender before it became their acquired gender as 'protected information'. Nothing in this Annex is to be read as authorising or permitting any constable or any police staff who has acquired such information when acting in their official capacity to disclose that information to any other person in contravention of the GRA. Disclosure includes making a record of 'protected information' which is read by others.

Notes for Guidance

A1 While there is no agreed definition of transgender (or trans), it is generally used as an umbrella term to describe:

• anyone whose gender identity (including their gender expression) does not fully correspond with the sex they were assigned at birth. This is inclusive of
• trans women (people who were assigned male at birth but who identify as a woman)
• trans men (people who were assigned female at birth but who identify as men)
• non-binary people (who do not identify solely as men or women; instead their gender identity as between or beyond the man/woman binary or they have no gender)
• cross-dressing people (including people whose gender expression includes dressing in clothing which does not fully correspond with the sex they were assigned at birth but otherwise identify with their assigned sex).

A2 The Chief Constable is responsible for providing corresponding operational guidance and instructions for the deployment of transgender constables and staff under their direction and control to duties which involve carrying out, or being present at, any of the searches and procedures described in paragraph 1 of this Annex. The guidance and instructions must comply with the Equality Act 2010 and should therefore complement the approach in this Annex.