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Publication - Consultation Paper

Exercise by constables in Scotland of search powers conferred: draft code of practice

Published: 1 Nov 2017
Part of:
Law and order, Research
ISBN:
9781788513791

Draft Code of Practice on the Exercise by Constables in Scotland of Search Powers Conferred by Sections 289 and 303C of the Proceeds of Crime Act 2002.

39 page PDF

505.0kB

39 page PDF

505.0kB

Contents
Exercise by constables in Scotland of search powers conferred: draft code of practice
Annex C: Establishing a person's gender for the purpose of searching the person

39 page PDF

505.0kB

Annex C: Establishing a person's gender for the purpose of searching the person

Introduction

C.1 Certain provisions of this Code explicitly state that a personal search may only be carried out by, or in the presence of, persons of the same sex as the person who is to be searched.

C.2 All searches must be carried out with courtesy, consideration and respect for the person concerned. Constables should show particular sensitivity when dealing with transgender people (see Guidance Note 7).

Consideration

C.3 In law, the gender (and accordingly the sex) of a person is:

  • the person's gender as registered at birth; or
  • if the person has been issued with a full Gender Recognition Certificate ( GRC) under the Gender Recognition Act 2004 ( GRA), the person's acquired gender.

C.4 If a person's acquired gender is the male gender, the person must be treated as a male. Likewise, if a person's acquired gender is the female gender, the person must be treated as a female.

C.5 If a person holds a full GRC, they are under no obligation to produce this document to verify their identity. Instead, the way in which the person self-defines should be respected.

C.6 In practice, many transgender people do not obtain a full GRC or are in the process of transitioning to their acquired gender. Transgender people, whether or not they have a full GRC, should be treated as the gender they identify with.

Searching of transgender persons

C.7 As transgender people may have biological characteristics which differ from the gender that they live in, there is potential for distress and embarrassment during a personal search. Application of the following guidance should minimise the potential impact when searching a transgender person.

C.8 If a constable begins searching a person without any knowledge that the person is transgender and this only comes to light during the search, the original searching constable should continue with the search unless the transgender person asks for a different gender of constable to take over the search.

C.9 If a person is thought or known to be transgender prior to a search being carried out, a constable should ask the person:

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

C.10 A 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 be treated as a man in all other ways except in terms of the gender of the constable who searches him.

C.11 A trans woman who still has 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 be treated as a woman in all other ways except in terms of the gender of the constable who searches her.

C.12 If a person is unwilling to state their gender identity, a constable should try and determine the gender that the person lives in. This is likely to be indicated by the name, title or gender on the person's main forms of identification ( e.g. driver's licence, bank card etc.). If the person appears to live as a woman, for instance, the person should be treated as such.

C.13 Once the gender of the constable conducting the search has been established, the search should begin. The transition status of the person being searched and their appearance should not be commented upon. If, during the search, the constable encounters any physical variation due to gender reassignment, the constable should maintain a professional and respectful manner.

Documentation

C.14 The person's gender, as established above, must be recorded in the written record of search.

C.15 If a person expressly identifies with a particular gender, but is not treated in accordance with that gender, this (and the reasons for it) must also be recorded in the written record of the search.

Disclosure of information

C.16 It may be necessary to share information about the person's gender identity with other constables. Such disclosure should only be made in relation to the transgender person when to do so would be relevant, legal, proportionate and fair.

C.17 Section 22 of the GRA makes it an offence for a constable to disclose "protected information" to any other person – i.e. information acquired in an official capacity about (a) a person's application for a GRC, or (b) the gender history of a successful applicant. However, this is subject to a number of exceptions. For instance, it is not an offence to disclose protected information if:

  • the information does not enable the person to be identified;
  • the person concerned has agreed to the disclosure;
  • in the case of a successful applicant's gender history, the constable does not know or believe that a full GRC has been issued;
  • the disclosure is in accordance with a court order;
  • the disclosure is for the purpose of instituting, or otherwise for the purposes of, court proceedings;
  • the disclosure is for the purpose of preventing or investigating crime;
  • the disclosure is in accordance with, or made by virtue of, another statutory provision.

C.18 Nothing in this Annex is to be read as authorising or permitting any constable who has acquired protected information in an 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.


Contact

Email: Alastair Crerar

Phone: 0300 244 4000 – Central Enquiry Unit

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG