High Court rules strip searches don’t have to be based on ‘biological sex’

On Friday, the High Court rejected a challenge by the anti-trans pressure group Sex Matters to police strip search guidance. Sex Matters had argued that such searches must always be based on “biological sex”. If they had succeeded, this would have required the forcible strip searching of trans women in detention by male police officers, whenever such a search might be required.

The strip search guidance was issued following last year’s Supreme Court judgment on the meaning of sex under the Equality Act 2010. Previous guidance had suggested that trans people with a gender recognition certificate should be treated as their acquired sex for the purpose of searches.

The power of police officers to conduct forcible strip searches comes from the Police and Criminal Evidence Act 1984 (known as PACE). The relevant provisions of the statute are sections 54, 54A, and 54B. These cover searches which involve removal of more than the outer layer of clothing, or exposing intimate parts – specifically the buttocks, genitals, or breasts.  Strip searches are distinct from “intimate searches”, which involve physical examination of an orifice other than the mouth, and which are covered by section 55 of PACE. Significantly, the legislation requires that strip searches conducted under these powers must be made by someone of the same sex as the detainee (s54(9), s54A(7), s54B(6)).

But the guidance provides a different option, saying that the police should follow the preferences of trans people who ask that a search is carried out by an officer of their lived gender. That is to say, when requested, a strip search of a trans woman should be conducted by a female police officer. But there’s a significant limitation – both the trans detainee and the police officer have to consent to the search.

The idea is relatively simple. The mandatory requirements concerning the respective sexes of the officer and the detainee only apply to searches conducted under the relevant provisions of PACE. If a police officer is using their statutory powers to conduct a search by force, then they have to follow these provisions. However, where a search is conducted by consent, there is no need to rely on these special police powers – it can operate outside of the provisions of the statute. The position would be the same as for ordinary people, who can ask each other to take their clothes off with consent.

Sex Matters objected to this approach. They argued that the guidance creates a “shadow regime” attempting to “contract out” of the PACE framework, as established by the legislature. Sex Matters argued that whilst the protections in PACE were important for those being detained, their purpose was also to protect police officers conducting potentially unpleasant searches of those in custody. 

But the judge concluded that nothing in the relevant provisions of PACE prevented officers from conducting consensual searches, outside of the statutory regime. Mr Justice Linden said that provided that consent was genuine, and the search was lawful in all other respects, he did not consider that the public interest required a refusal to recognise the consent of the person to be strip searched by a person of different “biological” sex. Indeed, he noted that “the effect of the ability to consent to a search by a person of the opposite biological sex is to mitigate the distress which the detained transgender person may feel, rather than to increase it”. 

Linden said he was “doubtful” about the argument that the provisions in PACE around the sex of officers conducting searches were “intended to protect police officers as well as detained persons” but said even if they were, the guidance allows officers to opt out of such searches, and to withdraw consent at any time. The guidance was, therefore, lawful.

However, perhaps the most interesting part of the judgment is what it did not decide. The parties had agreed between them that – after last year’s Supreme Court decision – that references to “sex” in PACE should be interpreted to mean “biological sex”. But Linden declined to decide this, noting that the Supreme Court’s decision was “specifically about the position under the Equality Act 2010”. He queried whether the position under PACE might be different – and left open the question whether a trans person with a gender recognition certificate would be considered their acquired sex, so a trans woman would be considered female, for the purposes of the statute.

This is an absolute breath of fresh air from the High Court. Since the Supreme Court decision last year, there has been a concerted attempt by anti-trans campaigners to widen the applicability of the judgment, insisting that a “biological” interpretation of the term “sex” should be applied to all manner of legislation beyond the Equality Act. Indeed, they appear to insist that this should be the default position, with only very narrow exceptions made relating to things like marriage. 

Despite the argument that “biological sex” should now be the default, the legal position remains that a Gender Recognition Certificate (GRC) changes a person’s sex “for all purposes”, unless an exception otherwise applies. It is true that, in determining that a GRC was irrelevant to a person’s sex under the Equality Act, the Supreme Court relied upon a broad interpretation of another provision – s9(3) of the Gender Recognition Act 2004 (GRA)  – holding that it was not necessary for the GRA to be expressly disapplied by subsequent legislation. Instead, “biological” definition of sex would also apply where “the terms, context and purpose” of any such legislation would make a different definition clearly incompatible, or render the legislation “incoherent or unworkable”. This broad approach to applying s9(3) has already been adopted by the courts beyond the context of the Equality Act – including, earlier this year, by the High Court in respect of the 1992 Workplace Regulations.

Anti-trans campaigners seem to contend, in effect, that this exception should become the default position in respect of all legislation, making GRCs obsolete outside of incredibly marginal circumstances. This would, bluntly put, amount to the effective stealth repeal of the GRA in every meaningful sense. And I am convinced that is their precise aim.

But the true default position is that the term “sex” in law does not mean “biological sex” unless the relevant legislation would otherwise be “incoherent or unworkable”. And this is not an assessment which can be made by the courts in a vacuum – appropriate weight has to be given to the need to protect trans people’s human rights, and the importance of legal gender recognition in that context. Given the purpose and construction of PACE, it does not seem at all clear that the default position – that a GRC is relevant to its definition of sex – should be disapplied. Indeed, I think that human rights considerations mean it should not be. It is good to see the continued relevance of the GRA respected by the High Court, despite the flawed arguments of the parties.

But even with this decision, some significant concerns remain. The guidance states that where no officer can be found to search trans detainees “within a reasonable time”, then a search can be completed by officers of the same “biological sex”. This means that under the current guidance a detained trans woman could still be forcibly strip searched by a male officer in some circumstances. The guidance also does not cover intimate searches – though PACE does not require that intimate searches are conducted by someone of the same sex, so long as it is conducted by a registered medical practitioner rather than an officer.

Another serious issue is that in order to avoid being strip searched by someone of the opposite gender, trans detainees must not only consent to who is doing the search, but the search itself. This is a necessary requirement of operating outside of the PACE regime. But this puts trans detainees in a very vulnerable position in relation to the exercise of a coercive state power. It also provides no protection for trans detainees who are unable to properly consent, because they for some reason lack the capacity to do so.

But all of these issues could be avoided by an alternative approach, initially postulated by Linden, but which neither of the parties took up as a solution. The approach is an elegant one, which does not rely on any particular definition of the term “sex” applying to PACE, or require searches to be conducted outside of the statutory regime. Instead, it relies on the fact that PACE, as drafted, is designed to afford rights and protections to those subjected to coercive state powers, and to place proper limits on the exercise of those state powers. The proposition is that, given the purpose and construction of the legislation, the stipulation that a search only be conducted by a person of the same “biological sex” as the detainee is a protection afforded to the detainee. And, it is a kind of protection which could be waived by the detainee in the appropriate circumstances. This means that detainees are entitled to a same “biological sex” search – but this entitlement is not one that they would have to take up. This would protect trans detainees.

Such an approach to the statute may in fact be required by the Human Rights Act 1998. Section 3  requires that, so far as possible, courts must interpret legislation compatibly with the European Convention on Human Rights. It is very difficult to see how a legal framework which required male officers to forcibly strip search those who have been living as women for decades – and indeed may have undergone extensive surgical interventions – could possibly be compatible. Such a framework would potentially violate not just the Article 8 rights of trans people – the right to respect for private life, which includes proper legal gender recognition. It might also potentially violate Article 3 – the prohibition on torture, and inhuman and degrading treatment – where violations have previously been found in relation to the nature and conduct of strip searches. The human rights of trans detainees must obviously be given very significant weight in such a context, and this should be reflected in any approach to interpreting the relevant provisions of PACE, and the legality of any strip search policy.

Sex Matters have already announced their intention to appeal the decision. The organisation has spent much of its campaigning efforts since last year’s Supreme Court decision insisting that their anti-trans construction of the law is the only one available. Or, as they put it “the law is clear – so get on with it”. But despite these slogans, the courts don’t seem wholly persuaded that everything is as simple as they claim. As I have long argued, the relevant law is – frankly – clear as mud. There remains vast legal uncertainty in numerous areas – I would never pretend otherwise. But, if Sex Matters really are right about the law, then it is, in my assessment, wholly incompatible with the European Convention on Human Rights.

The decision was one of two major losses in a single day for anti-trans campaigners. The High Court also refused permission in a challenge to trans youth healthcare. Backing the failed challenge, Sex Matters described the High Court’s refusal as “both devastating and inexplicable”. 

As was mentioned in the judgment, I attended the substantive High Court hearing in June on behalf of Good Law Project. We subsequently wrote to the judge noting our concern about the absence of any voice in proceedings defending the human rights of trans detainees – offering to intervene at a late stage. The High Court has suggested that we can make such an application if permission is granted to Sex Matters to appeal. We intend to do so.