Scotland: Police searches to be based on biological sex

Police Scotland has introduced temporary guidance for searching transgender individuals following a pivotal UK Supreme Court decision on defining a woman. The new five-page document outlines that searches will be based on biological sex and applies to searches conducted by trans officers and staff.

According to this guidance, officers will perform searches on someone of the same biological sex. However, if a person requests to be searched by an officer matching their lived gender, the police will strive to meet this request when feasible, according to ‘BBC’.

In April, a judge declared that, under equalities law, sex is binary, meaning it legally pertains to either a biological man or a biological woman.

Assistant Chief Constable Catriona Paton explained that the guidance aims to provide clarity regarding a “complex and important area” of policing. As the UK’s second largest force after the Met, Police Scotland emphasises its commitment to aligning with its duties under the Equality Act and Human Rights Act.

The guidance emphasises that officers and staff must be confident in the legality of their search procedures. All searches, whether in custody or elsewhere, must be based on biological sex. The document also covers scenarios where individuals whose lived gender differs from their biological sex request to be searched by someone of their lived gender. In such cases, police will attempt to ensure an appropriate officer conducts the search if “operationally viable.”

Written consent must be obtained from the authorising officer, the person being searched, and any officers involved. Following the Supreme Court ruling, British Transport Police stated that trans women arrested on railways would be strip-searched by male officers. BTP also confirmed that same-sex searches in custody will be based on the detainee’s biological birth sex, as per their updated guidance for public bodies.

Assistant Chief Constable Paton noted the complexity and significance of this aspect of policing, emphasising the importance of fulfilling legal duties while ensuring searches are conducted lawfully. She acknowledged the public's sensitivity to this issue, particularly within the transgender community and among those with gender-critical views. The priority, she noted, is to ensure decisions align with service values of “integrity, fairness, respect and upholding human rights.”

The interim guidance will be reviewed as Police Scotland awaits revised national guidance. Last week, women’s rights activists set a deadline for the Scottish government to comply with the Supreme Court’s definition of biological sex. The government responded by acknowledging the court’s judgment and awaited guidance from the Equality and Human Rights Commission.

The police guidance was developed with input from the force’s legal team, independent human rights advisor Jane Gordon, and partners including businesses, staff associations, trade unions, and the Scottish government. Police Scotland stated that its broader review of sex and gender issues is ongoing, with more updates forthcoming.

A Scottish government spokesperson stated, “It is for Police Scotland to decide their operational processes, including their guidance for officers, and ensure they are in line with legal obligations.” The Scottish government affirmed acceptance of the Supreme Court ruling and the obligation of public bodies to comply with the law. BBC Scotland News has reached out to the Scottish Police Federation for their comments.