Is a GRC really a licence to search?

FairCop has published an advice from a KC on the lawfulness of the National Police Chiefs’ Council policy that tells forces that officers who transition can search (including strip-search) members of the opposite sex. 

The policy (currently withdrawn for review) states that:

“once a transgender colleague has transitioned, they will search persons of the same gender as their own lived gender.”

The KC reaches the same conclusion as the Minister for Policing, Chris Philp MP. Both say that a male officer who self-identifies as a woman is not allowed to search women, but a male officer who has a gender-recognition certificate (GRC) is.

As we wrote (publicly) to the minister at the time, we think this is wrong. 

We think it should be obvious to police forces, the prison service, politicians and the judiciary that if it would be assault for a man to watch a woman undressing or to touch her body without her consent, then it remains assault even if that man has a government-issued gender-recognition certificate.

FairCop’s KC is not the only eminent lawyer who thinks a GRC is an access-all-areas pass. In 2021 Lord Wolfson of Tredegar KC, then Parliamentary Under Secretary of State for Justice, responded to a parliamentary question about searching policy in prisons. He said: 

“In accordance with the Gender Recognition Act (GRA) 2004, transgender people may apply for a Gender Recognition Certificate (GRC). Prisoners and staff members in receipt of a GRC have the legal right to be treated as their acquired gender in every respect.”

A new policy was being developed at the time, and Lord Wolfson said that HM Prison and Probation Service had consulted with the government’s legal department and its own equalities team. He promised that the new policy would be compliant with the Equality Act 2010, the Gender Recognition Act 2004 and the European Convention on Human Rights. But in the event the new guidance dodged the question about prison officers with GRCs – and HMPPS say it still has not worked out the answer.

Where did the KC go wrong?

The KC’s advice is useful insofar as it illustrates why judges, lawyers and government ministers are getting the law wrong, and why officials have got so stuck. 

It runs through the familiar background of the legal framework: 

  • The Equality Act 2010 (EqA) defines sex as male and female, and “gender reassignment” as relating to someone who is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. It makes direct and indirect discrimination and harassment unlawful in certain situations. 
  • The Gender Recognition Act 2004 (GRA) provides that if a person is awarded a GRC then “the person’s gender becomes for all purposes the acquired gender (so 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)”. Section 22 of the GRA prohibits anyone who has acquired information in an official capacity about a person’s GRC and/or their “gender before it becomes their acquired gender” from disclosing that information. 
  • The Police and Criminal Evidence Act 1984 (PACE) empowers the Secretary of State to issue codes of practice in relation to a number of matters. Concerning searching, the Secretary of State has issued such a code of practice, known as “Code C”. Code C sets out that “a search may only be carried out by an officer of the same sex as the detainee”. (In fact the requirement for same-sex searching is also in the primary legislation at Sections 54(9) and 55(7) as well as in Codes A, C, H and D.)

Then he says:

“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.”

This is his first mistake. 

A GRC does not require that a person “must be treated as their acquired gender” by other people. 

This was the pitfall that Employment Judge James Tayler fell into in the first-instance judgment in the Forstater case. He said (at paragraph 84): 

“I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned.” [Emphasis added]

This was found to be wrong in law and was a key reason why the judgment was overturned.

As Naomi Cunningham has written, in everyday interactions individuals have no legal duty to treat men and women in any particular way, and no particular duty to pretend that a man who has gained a GRC is a woman. There is simply nothing in the Gender Recognition Act or the Equality Act that could require us to do that: no definition of what it is to be “treated as a woman” and no mechanism of adjudication, sanctions or remedies for infringements. 

As Mr Justice Choudhury said in the Employment Appeal Tribunal judgment:

“Although section 9 of the GRA refers to a person becoming ‘for all purposes’ the acquired gender, it is clear from these references in decisions of the House of Lords and the Court of Appeal, that this means for all ‘legal purposes’.”

More precisely, a GRC changes a person’s sex for some legal purposes, notably pensions and marriage, but not for others, in particular parenthood, inheritance, succession and sex crimes. 

This could be the end of the advice right here.

Once you remember that a GRC doesn’t create any obligations on private individuals and focus on the reason for the law that requires same-sex searching – namely to protect the person being searched from humiliating and degrading treatment (and the searcher from both potential humiliation and allegations of impropriety) – the answer should be obvious. 

A woman or girl who is searched by a man dressed as a woman is likely to feel just as humiliated and degraded as a woman who is searched by any other man (and if she knows about autogynephilia, the experience may be even more frightening, humiliating and degrading). There is no legal obligation on her to pretend that she is not being searched by a man.

There is a legal obligation (and a human-rights obligation) on the police force, prison service or school that is searching her to protect her from this humiliation. 

The KC says, correctly, that a court would deal with this as a question of statutory construction. That is, it would need to decide the meaning of the term “of the same sex”, given the context and purpose of PACE.

But instead of focusing on the context and purpose of PACE, he then makes his second mistake, turning to look instead at the words “without unlawful discrimination” in the PACE code. This misleads him into thinking that the solution must lie in the Equality Act.

He then gives a quick review of some case law: A v West Yorkshire Police (which concerned searching by police, and was decided pre-GRA); the Fair Play For Women census case in Scotland; and the two For Women Scotland cases. 

His consideration of the For Women Scotland cases is superficial, given that he relies heavily on them for his conclusion. He describes them as concerning an “exception which allowed the Scottish Parliament to make particular provision for the inclusion of women” and sums up the FWS2 decision (at paragraph 49) as making clear that:

“whether a person is male or female for the purposes of the EqA is to be decided by reference to their biological sex, save where the individual has a GRC, in which case they are to be treated (for these purposes) as though their biological sex corresponded to their acquired gender.” 

He then plugs this back into PACE, saying that the same interpretation should be applied as in the Equality Act. He adds: “It would be surprising if the operation of an instrument expressly intended to comply with the EqA adopted different interpretations in relation to the same key terms.”

That leads him to conclude that the PACE rules on searching “are to be interpreted such that references to ‘sex’ are to biological sex, save where the individual has a GRC”. 

This sequence involves several missteps.

There was no reason to get distracted by the Equality Act. The question at issue concerns PACE, and its requirement that a detainee be searched by someone of the same sex.

The woman being searched has no obligations under the Equality Act towards the police officer searching her. She is neither his employer nor providing him with some sort of service. He cannot sue her for discrimination or harassment. 

So, like the GRA, the Equality Act imposes no obligations on her in this situation. The “without unlawful discrimination” rider in the PACE Code protects her; it is not there to place obligations on her. The obligations it creates are on the police force. 

Might a man with a GRC regard himself as discriminated against by his employer if he is not allowed to search women? For a discrimination case, there needs to be a detriment of some sort, not merely an “unjustified sense of grievance”. A man’s disappointment at being told he cannot search women is not a detriment. A detriment might be if a person couldn’t be employed as a police officer at all.

The context and purpose of PACE, enacted in 1984, was not to force women to subject themselves to being searched by transvestites or transsexuals. And the GRA in 2004 did not give men with a certificate the right to search women. 

Section 3 of the Human Rights Act requires that legislation is interpreted so far as it is possible to do so in a way that is compatible with the Convention rights. Several rights are engaged when a search is being carried out. For the woman being searched, Article 3 (the right not to be subject to humiliating and degrading treatment) and Article 8 (privacy) are engaged. The specific right that gave rise to the GRA was Article 8, which is also engaged for the police officer.

FairCop’s KC should have considered these rights, weighed infringements of them against each other and observed that the police officer’s qualified right to “respect for his private and family life, his home and his correspondence” does not outweigh the woman’s absolute right not to be subjected to humiliating and degrading treatment. 

Once that is clear, he could then turn to the detail of the For Women Scotland cases for aid in thinking about the problem of statutory construction.

The second of these cases (FWS2) concerns whether it was lawful for the Scottish government to enact a measure concerning women on public boards, where “woman” was defined as including someone who had acquired that status via a GRC. The ruling concluded that it was indeed lawful (note, however, that it may be appealed). 

That is a quite different situation to determining whether it is lawful to force a woman to be searched by a man because he has a certificate. 

Lady Haldane in FWS2, and following her Lady Dorrian, who upheld the judgment on appeal, did not rule that “sex” always means “sex as modified by a GRC” in every law, or even that it means “sex as modified by a GRC” consistently throughout the Equality Act. In order to reach their judgments they had to reason that in some situations sex would still be interpreted as biological sex.

Lady Haldane, in the first instance (Outer House) judgment and quoted in the appeal (Inner House) judgment at paragraph 18, said her conclusion that the default meaning of “sex” in the Equality Act includes GRC sex did not “give rise to any conflict with, legislation where it is clear that ‘sex’ means biological sex”. She gave as an example the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021, which she said can only be read fairly “to mean that a victim should have access to an examiner of the same biological sex as themselves”. She goes on to say: “There are no doubt many other such examples.”

Police searching is an obvious candidate for one of these “many other such examples”. It is surprising that FairCop’s KC did not even consider whether it might be in the same category. 

Lady Dorrian, in the Inner House judgment, similarly considers the interaction between section 9(1) of the GRA, which says a person’s sex changes for all [legal] purposes, and the sub-sections that follow, which provide exceptions. She says that this construction allows biological meaning to reassert itself wherever the terms of “subsequent legislation are such that they are incompatible with, and would be rendered meaningless or unworkable” by, the “for all purposes” provision.

She says this again at paragraph 44: 

“The decision of the UK Parliament to enact the GRA in the wide terms which it did necessarily, however, drives us away from a strict biological definition unless the context clearly and necessarily dictates otherwise.”

And she reiterates it at paragraph 62, in relation to whether a GRC excludes a “transman” from pregnancy and maternity protection: 

“Section 212 [which defines man and woman] does not include the words “except where the context otherwise requires” but these are implicit in any statutory definition. In our view this is a situation where the context manifestly “otherwise requires”: pregnancy is a matter of fact which hinges entirely on biology.”

Yet this legal opinion, produced by a KC, commissioned by a gender-critical organisation and focusing precisely on an issue where women’s rights are particularly strongly engaged, says that it is his strong view that holding a GRC allows a man to strip-search a woman. He concludes:

“Police forces are bound by the GRA. I do not identify any mechanism whereby a GRC could be ‘disapplied’ for these purposes” 

This is a troublingly incurious answer, and strangely detached from practical considerations. What happens when the male police officer with a certificate walks in and the female detainee says “that’s a man”? What happens if she refuses to cooperate? What if she asks a question about the officer’s sex? What happens if she says nothing and submits, but feels traumatised? What happens if she realises later that she has rights and sues the police force?

We know Stonewall’s answer to these questions, which is the same as James Tayler’s answer: she is a bigot and her rights can be ignored. 

And we know that both Stonewall and James Tayler are wrong. 

If your legal reasoning brings you to the conclusion that the human rights of a woman who is being searched can be simply set aside, then you have taken a wrong turn somewhere in your reasoning and need to try again. 

Why do judges, lawyers, politicians and officials keep getting this wrong? 

The legal pitfalls we describe here are increasingly clear and obvious. All you have to do is read the judgments in the Forstater case and the FPFW and FWS cases to know that a GRC is not magic, and other people have rights.

And yet the NPCC issued an unlawful policy and many police forces have adopted it. The Ministry of Justice has reached an impasse about searching policy for prisons. And even a KC instructed by FairCop has missed the point. Why is it so hard to see? 

One reason is because lawyers and lawmakers get hung up on words. They think a “transwoman”, and particularly one with a GRC, must in some sense be a woman, and that it would be cruel to disagree. In legal terms, Article 8 privacy protection looms larger than it should because they imagine a man who “passes” as a woman, even in close contact, such that information about that person’s sex is not knowable by ordinary means to colleagues or people they deal with in their job. 

They think about clever abstractions like “the application of a chromosomal, gonadal and genital definition”. They forget, or fool themselves into thinking they have forgotten, that we can tell a man from his shoulders, his chin, his gait, his brow, his neck, his voice, his hands. We don’t need to see him undressed, and we cannot switch off this perception. It is instinctual. You don’t have to read any case law.

They are smart people, but they are not smart enough on this topic because of the culture of fear and no debate. They haven’t talked enough about it, they haven’t read enough about it and they don’t allow themselves to think too hard about it. 

Time and time again, lawyers disregard women’s rights in order to avoid saying a categorical “no” to transgender males. They kid themselves that “no”’ can and will be said sensibly on a case-by-case basis by someone else (as Lord Falconer argued to the Women and Equalities Select Committee last year), or that someone else will be able to reassert the biological meaning of sex where the context requires it. They overlook how difficult this has been made and how brave you have to be to attempt it.

Smart people, insulated from the consequences of their decisions, carefully avoid pulling the thread marked “women’s human rights” because if you pull on that, who knows where the other end will be?

If a woman has the right to say that a man is not a woman (and the Forstater judgment established that she does), she might have the right not to be searched by any males. 

And if she has that right, maybe she also has the right to use a shower, sleep in a dormitory, join a women’s group, use a rape-crisis centre, go to the toilet or compete in sports without men who identify as women demanding access.

The whole edifice of what it means for a man to “live as a woman”, backed by state coercion and the vicious silencing of dissent, starts to crumble if you remember that women have rights.

The question of same-sex searching (and same-sex medical examination) has been passed around for long enough. It cuts across the police, prisons, NHS, border force and schools. It’s well past time that it was solved.

Kemi Badenoch’s department should publish a draft statutory instrument to clarify the Equality Act, PACE and other relevant laws, and to ensure that they are in line with the Human Rights Act and the Istanbul Convention. The Joint Committee on Human Rights should consider it as a matter of urgency.

Trans rights are human rights, and so are everyone else’s.