assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/592547/pace-code-c-2017.pdf
(current code, inserted
"Certain provisions of this and other PACE Codes 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. See Note L1.
- All searches and procedures must be carried out with courtesy, consideration and respect for the person concerned. Police officers should show particular sensitivity when dealing with transgender individuals (including transsexual persons) and transvestite persons (see Notes L2, L3 and L4).
(a) Consideration
- 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.
- When establishing whether the person concerned should be treated as being male or female for the purposes of these searches and procedures, the following approach which is designed to minimise embarrassment and secure the person’s co-operation should be followed:
(a) The person must not be asked whether they have a GRC (see paragraph 8);
(b) If there is no doubt as to as to whether the person concerned should be treated as being male or female, they should be dealt with as being of that sex.
(c) If at any time (including during the search or carrying out the procedure) there is doubt as to whether the person should be treated, or continue to be treated, as being male or female:
(i) the person should be asked what gender they consider themselves to be. If they express a preference to be dealt with as a particular gender, they should be asked to indicate and confirm their preference by signing the custody record or, if a custody record has not been opened, the search record or the officer’s notebook. Subject to (ii) below, the person should be treated according to their preference;
(ii) if there are grounds to doubt that the preference in (i) accurately reflects the person’s predominant lifestyle, for example, if they ask to be treated as a woman but documents and other information make it clear that they live predominantly as a man, or vice versa, they should be treated according to what appears to be their predominant lifestyle and not their stated preference;
(iii) If the person is unwilling to express a preference as in (i) above, efforts should be made to determine their predominant lifestyle and they should be treated as such. For example, if they appear to live predominantly as a woman, they should be treated as being female; or
(iv) if none of the above apply, the person should be dealt with according to what reasonably appears to have been their sex as registered at birth.
- Once a decision has been made about which gender an individual is to be treated as, each officer responsible for the search or procedure should where possible be advised before the search or procedure starts of any doubts as to the person's gender and the person informed that the doubts have been disclosed. This is important so as to maintain the dignity of the person and any officers concerned.
(b) Documentation
- The person’s gender as established under paragraph 4(c)(i) to (iv) above must be recorded in the person’s custody record or, if a custody record has not been opened, on the search record or in the officer’s notebook.
- Where the person elects which gender they consider themselves to be under paragraph 4(b)(i) but, following 4(b)(ii) is not treated in accordance with their preference, the reason must be recorded in the search record, in the officer’s notebook or, if applicable, in the person’s custody record.
(c) Disclosure of information
- 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 police officer 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
L1 Provisions to which paragraph 1 applies include:
In Code C; paragraph 4.1 and Annex A paragraphs 5, 6, and 11 (searches, strip and intimate searches of detainees under sections 54 and 55 of PACE);
In Code A; paragraphs 2.8 and 3.6 and Note 4;
In Code D; paragraph 5.5 and Note 5F (searches, examinations and photographing of detainees under section 54A of PACE) and paragraph 6.9 (taking samples);
In Code H; paragraph 4.1 and Annex A paragraphs 6, 7 and 12 (searches, strip and intimate searches under sections 54 and 55 of PACE of persons arrested under section 41 of the Terrorism Act 2000)
L2 While there is no agreed definition of transgender (or trans), it is generally used as an umbrella term to describe people whose gender identity (self-identification as being a woman, man, neither or both) differs from the sex they were registered as at birth. The term includes, but is not limited to, transsexual people.
L3 Transsexual means a person who is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of gender reassignment, which is a protected characteristic under the Equality Act 2010 (see paragraph 1.0), by changing physiological or other attributes of their sex. This includes aspects of gender such as dress and title. It would apply to a woman making the transition to being a man and a man making the transition to being a woman, as well as to a person who has only just started out on the process of gender reassignment and to a person who has completed the process.
Both would share the characteristic of gender reassignment with each having the characteristics of one sex, but with certain characteristics of the other sex.
L4 Transvestite means a person of one gender who dresses in the clothes of a person of the opposite gender. However, a transvestite does not live permanently in the gender opposite to their birth sex.
L5 Chief officers are responsible for providing corresponding operational guidance and instructions for the deployment of transgender officers 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. The guidance and instructions must comply with the Equality Act 2010 and should therefore complement the approach in this Annex. "
This wording was inserted in 2012, and has not changed. www.pinknews.co.uk/2012/07/23/new-search-rules-for-trans-police-officers-and-suspects-drawn-up/
Note that this:
"At the same time, this guidance was potentially at odds with a House of Lords ruling from the previous year (A v West Yorkshire Police (2004)), which held that no-one of a particular gender could reasonably object to being searched by a “transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender”"
is rather selectively quoted on the part of Penis news, omitting a rather crucial word
Here is the actual judgment
www.bailii.org/uk/cases/UKHL/2004/21.html
"In my opinion, effect can be given to the clear thrust of EU law only by reading "the same sex" as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search."
Elsewhere the judgment notes "Every reasonable effort must be made to reduce to the minimum the embarrassment that a person being searched may experience, it was plain that Ms A, who appeared in every respect to be a woman [I'll take their word for it], could not, even if legally a man [at 1998 law], be permitted to search a man."
The issue of course is that whereas in 2004 it was a 'post-operative' 'passing' transsexual, in 2018 you can get a GRC while still being very obviously male - the Emily Howard concept is now seen as horribly offensive, and you must accept the claims of someone to be a woman even if they plainly are not. So embarrassment is not exactly minimised.