Police Scotland accused of 'bizarre' transgender body search rules

For Women Scotland say the interim guidance does not follow the law - and have questioned advice which says a transgender "detainee" can ask to have half their body searched by a male officer, and the other half by a female officer.

Chief Constable Jo Farrell admits the new guidance may have "potential unintended consequences" but the force needs to meet its duty under the Equality Act and the Human Rights Act.

The guidance has been published to ensure Police Scotland is abiding by the Supreme Court judgement, which came down in favour of For Women Scotland when it took the Scottish Government to court.

In a landmark decision judges ruled that 'woman' refers to biological sex under equality laws, excluding transgender women from the definition.

As a result public sector organisations across Scotland are reviewing their policies around single sex spaces, the collection of data and how and when transgender people should be treated as their biological sex, or as their lived gender.

The Scottish Parliament has already said that toilet facilities should be used based solely on biological sex, though it is also increasing the number of gender neutral loos.

The Scottish Government has yet to make any changes in its policies - or in the guidance it gives to other organisations, such as schools and hospitals. It has established a "short life working group" to prepare for new advice from the Equality and Human Rights Commission, based on the Supreme Court ruling, which is due to be published later this year.

It has been accused of dragging its feet by women's rights campaigners. Asked today if that was the case, First Minister John Swinney told LBC it was "doing what was required".

However Police Scotland said it was not waiting for the EHRC and was already conducting an audit of single sex spaces in its estate.

And it has published the new search guidance which states that officers who carry out bodily searches of a person who has been detained , and which involves the removal of more than a jacket, gloves, headgear or footwear, must be done "on the basis of biological sex".

But it also states that a transgender person can still request to be searched by an officer of their "lived gender" - but that written consent would be needed from all involved.

Reacting to the guidance, Susan Smith of For Women Scotland told LBC: "It's rather a bizarre new policy which seems to suggest searches will be done on the basis of biological sex - except when they aren't. I don't really see how written consent can over-ride the law.

"If there is a need for a search then we're worried that female officers may feel coerced to search someone who is clearly male. That's a situation which is unacceptable."

She said it could also mean "a future Isla Bryson [the transgender double rapist] could still ask for a female officer to conduct a search - and if the initial offence was for something like shoplifting, then she might feel violated later if it transpired he was also a rapist."

And she described as "creepy" the section of guidance which states "a transgender detainee can ask for a separate area search. This means that one half of their body will be searched by one biological sex Officer and the other half of their body will be searched by a different biological sex Officer."

She said: "They aren't some creature of myth, half male and half female. It is disturbing and distressing that police are pandering to these extreme delusions."

The guidance was discussed at the police watchdog body, the Scottish Police Authority, with Chief Constable Jo Farrell quizzed about how it had been prepared.

She said: "This is a complex area, and the guidance is not without potential unintended consequences. 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, and we must protect officers and staff from potential challenges, which could include criminal allegations.

"In practical terms... searches will only be carried out by officers or staff of the same biological sex. There is one important exemption, when an individual whose lived gender differs from their biological sex requests to be searched by an officer of their lived gender, efforts will be made to ensure an appropriate officer conducts the search, if operationally viable to do so.

"In these circumstances, written consent is required from the authorizing officer, the person to be searched, and the officer or officers conducting the search."

She added: "The interim guidance requires our transgender officers and staff to search in line with their biological sex. We recognise transgender colleagues may wish to exempt themselves from these types of searches on this basis, to avoid having to disclose their gender identity. Our operational practice permits officers to be excused from searches for a variety of reasons.

"The officer will state that they wish to be excused from searching with no further justification required, and there will be no career detriment,"

Police Scotland is the UK's second large police force after London's Metropolitan Police and previously came under fire for claiming that rapists can self-identify as females and be recorded that way, despite rape legally only being committed by men.

Dr Kath Murray of MBM Policy - which has challenged the force over its recording of rape - said the new guidance was "a fudge that continues to put female officers under pressure to search men".

She added: "Police Scotland rely on "consent" - but this is meaningless in such a hierarchical organisation. That it doesn't see, or care, that the policy puts female officers at a disadvantage, especially juniors, is a terrible reflection on Police Scotland."

And she said that while Police Scotland had committed to ongoing communication with transgender officers, there was no similar commitment to liaise with female officers and staff.

The Scottish Police Federation, which represents rank and file officers, said there was a "need for clear, lawful guidance" from Police Scotland, and that if female officers felt coerced, they should raise it with the SPF.

Spokesman David Threadgold told LBC: Should any of my colleagues feel that they are being coerced or pressured into carrying out such activity of someone who is not of their biological sex, then they should come to the federation with those concerns or to their supervisors, and we will deal with them very robustly indeed.

"There may be scenarios where you know two different officers, or indeed three different officers to be present, at least, to carry out one single search and that may not be possible. In that case, the interim guidance is clear that the search will be undertaken by someone of the same biological sex.

"Police Scotland are trying to comply with the Supreme Court and make it operationally feasible and viable for my colleagues to undertake. Do I think that every single person in the future who is searched will be entirely happy about it? No, I do not, but I do take some confidence from the fact that this guidance now exists and that my colleagues can refer to it when they are undertaking what is a very difficult part of our occupation."