Our argument is that both NPCC’s and BTP’s guidance is unlawful because it permits a detainee to be strip-searched by an officer of the opposite sex on the basis that both the detainee and officer “consent” to this. The Police and Criminal Evidence Act 1984 (PACE), the primary legislation setting out police powers in England and Wales, specifies that any search that goes beyond the removal of outerwear must be carried out by someone of the same sex.

The story so far

In late 2024 Sex Matters brought its first judicial review against BTP. That case related to guidance permitting officers with gender-recognition certificates (GRCs) to search detainees of the opposite (biological) sex, on the basis that a GRC changed a person’s sex for the purposes of PACE. That action was stayed (paused) by the High Court pending the decision of the Supreme Court in For Women Scotland v The Scottish Ministers (FWS) – although FWS concerned whether a GRC changed a person’s sex specifically for the purposes of the Equality Act specifically, it was expected that the reasoning in the judgment might shed light on whether it should or shouldn’t be understood as changing a person’s sex in PACE. After the judgment was handed down BTP withdrew its guidance. Our claim was therefore withdrawn by consent and BTP was ordered to make a contribution to our costs. 

BTP then issued new guidance, as did the NPCC, which is an umbrella body that produces guidance and model policies for all police forces. These guidance documents still allowed for opposite-sex searching, albeit with different parameters. This time GRCs played no part in decision-making; instead trans-identifying detainees could request that they be searched by someone of the opposite sex. If such an officer could be found who was willing to carry out the search, it would proceed on the basis that both parties consented to it. If no officer could be found the detainee would be kept under continuous watch or be searched per PACE by someone of the same sex. We applied to take a fresh legal challenge, and in January of this year we were granted permission. 

“Searching will be completed in line with biological sex however there will be times where a consensual search is agreed, and both the officer and the detainee give consent to the search.” 

NPCC Interim guidance – Searching by transgender officers and employees of the police and the searching of transgender detainees

“… a detained person may consent to be searched outside the statutory requirement that the sex of the person searching is of the same biological sex as the person being searched, i.e. where the detained person indicates a preference to be searched by an officer of a biological sex in contradiction of the requirements of statutory powers. The person must be capable of giving consent and consent should not be sought if the person is deemed unfit through drink or drugs or does not have the relevant mental capacity to decide this.”

BTP interim guidance – Transgender and Non-Binary Search Guidance 

We think that both documents breach Section 54 (Searches of detained persons) of PACE. 

PACE aims to balance police forces’ need to investigate and prevent crime with citizens’ rights and freedoms. Section 54 of PACE gives police the legal power to search someone who is arrested. That power is usually exercised during detention at a police station, but in some circumstances searches take place elsewhere. 

Sub-section (9) of PACE states that: 

“The constable carrying out a search shall be of the same sex as the person searched”.

We argue that this is unequivocal and provides the only basis for lawful searching. We disagree that there is any power at common law for a police officer to search a detainee by consent. 

Why this case matters

Searches under PACE are lawful if they fall within the permitted parameters; consent is not at issue. This protects officers as well as detainees. We think permitting opposite-sex searches outside PACE puts officers (of both sexes) in legal jeopardy if they search someone who later claims their consent was not valid. 

We also think opposite-sex searching harms women, both those conducting such searches and those subjected to them. Under this guidance, male police officers are able to carry out strip-searches of women with a trans identity. That such women must “consent” is not a meaningful safeguard: we do not accept that consent can meaningfully be given by a person who is detained. Women in contact with the police are on average extremely vulnerable. A high proportion have been in care, suffer from mental-health or addiction problems, or have experienced domestic or sexual abuse or trauma. 

The growing cohort of trans-identifying girls and young women are also known to suffer disproportionately from mental-health issues. If one is detained she may request to be searched by a man because that is “gender affirming”, only to find the search traumatising and later come to view what happened as a violation. That she has “consented” does not remove the risk of serious harms, as is clear from the recent shocking case of a mentally ill trans-identifying woman who was held in a male psychiatric ward because that aligned with her “gender identity”, only to be raped within an hour. 

In a witness statement provided in support of our claim, Maya Forstater, Sex Matters’ chief executive, writes:

“Taken together, the extreme vulnerability of female detainees, the recognised greater trauma done to women by being strip searched and the existence of this new cohort of young trans-identifying women mean it is necessary to consider the impact of the revised policies on female detainees who identify as trans. The officers we spoke to expressed fears that such women might request to be searched by male officers because they feel that to do otherwise would be to invalidate their trans identities.”

The guidance hands male detainees who have an erotic interest in cross-dressing, or who get a sexual thrill from exposing themselves in front of women or simply enjoy humiliating and intimidating women, an easy way to do so inside the custody suite. In her witness statement, Maya quotes serving police officers who explain how the possibility of being searched by a female officer will inevitably be exploited by some male detainees.

“The officers we interviewed emphasised that some members of the public are routinely deeply sexist and unpleasant towards female officers and staff members. The female officers said that it is extremely common for men to make sexualised remarks and insults, to suggest that they must be lesbians, to make rape threats, to pretend to believe that a female officer is a stripper performing in police uniform, to say they would like to be handcuffed or frisked by the officer, to say that she ‘needs a good shag’ or to make lewd suggestions that she is having sex with her male colleagues. This happens more to younger (and therefore on average less experienced) female officers.

“They emphasised that especially when it comes to searching, detention or custody situations, the people they interact with are not typical of their demographic among the general public. One said: ‘they’re far more likely to be violent against our officers, [seek to] humiliate our officers. They dislike police and they will do anything they can to harm us.’ All said that they expected that a policy that gave any man requiring a strip search the opportunity to ask for it to be performed by a female officer would be rapidly and widely misused for criminal and sexual purposes.”

The burden of opposite-sex searching will fall disproportionately on female officers because of the demographics of both police forces and those detained by police. Female officers are in a minority in all police forces, and men make up the great majority of detainees in general, and almost all of those detained for violent or sexual crimes. 

The NPCC’s guidance states that female officers will not have to search trans-identifying men if they do not want to, and that if they refuse they will suffer no career detriment. But as Catherine Larkman, a retired senior police officer and the national policing lead for the Women’s Rights Network, explains in another witness statement, such safeguards are completely insufficient.

“A detainee requiring [a strip search] cannot be housed in a cell safely, without the search first taking place and any items that they may use to harm themselves or others, or any evidential items, being located and removed. The teams that carry out these searches are often not large. A female officer or staff member who feels uncomfortable at searching a male detainee, would be unlikely to refuse to carry out a search. She would likely hide her discomfort and unease and carry out the search, in order to avoid inconvenience to her colleagues, or being seen as a troublemaker. She may also be very conscious that, if she refused, another female colleague would then be asked to carry out the search instead of her.

“The disciplined nature of the police service and the prevailing culture within, is also a factor in an unlikely refusal to search. Policing is a public service role, and officers and staff are subject to a discipline code and standards of professional behaviour, including a requirement to treat others fairly and without discrimination. Officers and staff are conscious of the necessity not to breach these standards. They are also conscious of the demands on their own colleagues and the pressure to work effectively as part of a team. Standing out as the weak link on a team where risk and discomfort are to be expected, is not desirable. A refusal to carry out a search in an environment, where time, efficiency and safety are of the essence would be felt adversely.”

The question for the court

At the heart of this hearing is a simple question: are consensual opposite-sex strip-searches in breach of the same-sex statutory duty imposed by s.54(9) of PACE or is there an additional common-law power to search by consent?

If the court agrees with Sex Matters that opposite-sex strip-searches cannot be permitted by consent, then we request that the court declare that the guidance is unlawful. Our aim in bringing the case is to require that NPCC, BTP and by extension all police forces in Britain ensure their searching guidance complies with PACE.

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Following the For Women Scotland judgment, the British Transport Police (BTP) has told us that it has now withdrawn its searching policy, which we had challenged. 

Where it previously contended that a male officer with a GRC “is female” the BTP now admits that for the purpose of the law on searching, a GRC does not change a person’s sex. In legal terms, it says section 9(3) of the Gender Recognition Act applies to the Police and Criminal Evidence Act 1984. 

Yet on 3rd May it was reported that Merseyside, Northumbria, Surrey and Sussex police forces still had policies that allowed trans officers to conduct strip-searches on detainees of the opposite sex.

So we sent them all letters before action. This week they all responded saying they are withdrawing their policies.

• Merseyside Police now says that it has withdrawn its policy and that Annex L will be disapplied. 
• Northumbria Police says it has withdrawn its policy and has adopted new guidance from the NPCC.
• Surrey Police and Sussex Police both say that they have withdrawn their policy and will be publishing a new policy by 30th June. Similar to BTP, they recognise that Section 9(1) of the Gender Recognition Act does not impact upon the definition of sex in Part V PACE. 
• The Metropolitan Police says it has withdrawn its policy and that as of 22nd May 2025 it has adopted new guidance from the NPCC.

While all these police forces are now saying that they are dropping their policies of allowing police officers with GRCs to search people of the opposite sex, they still want to provide the option of “gender identity” based searches for trans-identifying detainees “by consent”. This means that if a male detainee says they are trans the police force will try to find a female officer willing to do the search. 

We shouldn’t have to hold individual police forces to account one by one for them to fall into line and meet their basic obligations to respect the law. We have written to the Home Secretary and asked her to take action. 

Part of the problem is that since 2012 the government’s own statutory guidance has told police forces the wrong thing. This code of practice (Annex L of Code C) remains in force and the Home Office has said nothing about updating it. It still says that a GRC changes a person’s sex for the purposes of searching and says that in any case a detainee should be searched according to the gender they prefer. 

While the old unlawful policies are being scrapped, the National Police Chiefs’ Council has been scrambling to find a new loophole to bring gender self-ID back. Its new guidance on “Searching by Transgender officers and employees of the Police and the Searching of Transgender detainees” recognises that strip-searches and searches in custody carried out under PACE must be carried out by officers of the same sex as those being searched. But it says that detainees can request to be searched “by an officer of their gender” if these searches are carried out with written consent. PACE does not provide for such “consensual searches”, nor does it recognise “gender”. We think this remains unlawful.

As part of our initial claim against BTP we submitted evidence from interviews with female officers who emphasised that in the male-dominated and hierarchical environment of policing it would be difficult for them to refuse a request to strip-search a “trans woman”, despite the humiliation and degradation they would feel in searching such a man. 

They feared that a female officer who does not agree to carry out such a search would be perceived as “transphobic”, weak or unprofessional and would be put under pressure. Given that so many police forces have been and remain members of Stonewall, and that until recently all police chiefs endorsed the idea of gender self-ID and promoted a misinterpretion of the Equality Act, this seems a reasonable fear. 

The Police Federation has also expressed serious concerns regarding the legality of the guidance and the practical implications for its members, who will be responsible for implementing this guidance. The Police Federation says that it believes that the only lawful option following the Supreme Court decision is to exempt transsexual officers from searching either biological sex and that this should be the default situation for all transsexual officers.

We are calling on the Home Secretary to: 

• write to all police forces and ask them urgently to confirm that they have withdrawn their unlawful policies and will comply with PACE, based on an ordinary understanding of biological sex
• urgently withdraw Annex L of PACE Code C and replace it with clear, simple sex-based guidance which ensures that transgender people are treated with respect in line with their actual sex
• tell the NPCC to bring its new guidance into line with PACE and to direct officers to undertake strip-searches only of individuals of the same sex, based on their good-faith judgment. 

What would a good searching policy look like? 

Strip-searching is a significant invasion of privacy for anyone. It engages Article 8: the right to respect for private and family life. It must be carried out in a way that is lawful, necessary and proportionate (that is, justified in order to protect national security or public safety, prevent crime or protect the rights and freedoms of other people). 

The Equality Act requires that everyone should be able to be lawfully searched under PACE. A lawful search is one done under PACE, not one that tries to get around the law. 

This means that police forces and officers need clear guidance that they should only undertake same-sex searches (beyond outer garments); that they should treat transgender people with respect and that they should follow an established protocol if they are not sure what sex someone is, or if there is some dispute about this.

When establishing whether a person to be searched is male or female we suggest the following approach which is designed to ensure clarity, maintain dignity and secure co-operation:

A proposed approach for a revised Annex L

(a) The search procedure should be explained, including that the detainee will be searched by a person of the same sex.

(b) If there is any doubt what sex the person is, they should be asked to confirm their sex. 

(c) A person should be treated as the sex they say they are unless and until there is reasonable evidence to think otherwise.

(d) If the person is unwilling to confirm what sex they are they should be treated in good faith as being the sex which they appear to be unless and until there is reasonable evidence to think otherwise.

(e) If there are any doubts about which sex an individual is, each officer responsible for the search, procedure or requirement should where possible be advised before the search or procedure starts of any doubts as to the person’s sex 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.

(f) If at any time there is doubt as to whether the person is the sex that they say they are, or have been assumed to be, the search should be paused if safe to do so and the situation reassessed.

All such searches must be carried out with courtesy, consideration and respect for the person concerned, including those who may identify as transsexual, transgender or transvestite. However, this cannot include disregarding or wrongly recording their sex. 

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Melanie Newman v The Commissioner of Police of the Metropolis

The event featured outside speakers Eva Echo, Shea Coffey, Stephanie Robinson and Saba Ali, and organiser and Metropolitan Police employee Kit Moore.

Newman found Eva Echo’s talk in particular shocking, upsetting and highly politicised. According to her notes, Echo referred to those who raise concerns about single-sex spaces and women’s sports as “motivated by hate”,  showing “cult-like behaviour” and having “twisted, warped views”.

During a later talk one of the speakers mentioned women’s-rights campaigner “Posie Parker“ (Kellie-Jay Keen). Newman says the audience hissed in response.

After the event Newman visited Echo’s social media and noticed derogatory comments about gender-critical women.

Newman made a complaint about the event and raised a grievance but was told that the Met Police would not take up the issue because Echo was not an employee.

The Women’s Rights Network also complained to Metropolitan Police Commissioner, Sir Mark Rowley. 

It received a response saying that the speakers were “independent members of the public” and that the event was intended for those who hold “alternate views about trans/non binary issues” rather than those with gender-critical views. 

The response said that if colleagues were unhappy with the event or the behaviour of individuals attending, “there are well-established routes for them to raise concerns themselves and we would encourage them to do so”. 

The tribunal is scheduled for a five-day hearing from 10th March. It continues at Croydon Employment Tribunal.

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At the end of last week Sex Matters sent a pre-action letter to the British Transport Police (BTP) challenging its new Transgender Search policy. The pre-action letter (which also names the National Police Chiefs’ Council as an interested party) is the first step towards taking the BTP to court for a judicial review of the policy. 

The Police and Criminal Evidence Act 1984 (PACE) provides that when a person is being searched the officer carrying out a search “shall be of the same sex as the person searched”. The BTP policy interprets “same sex” as relating to paperwork not to reality.

As the recent Baird Inquiry emphasised: 

“The impact of strip searches can be severe. They are a profound invasion of people’s privacy and bodily autonomy. They are often experienced as humiliating and degrading.” 

This is particularly true for women. Being searched by a trans-identifying man is likely to be no less traumatic than being searched by any other man, and this is not changed by a gender-recognition certificate (GRC). 

The National Police Chiefs’ Council (NPCC) has withdrawn the guidance it produced that said that officers could search based on their “lived gender”, and the BTP policy steps back from endorsing self-ID – but it still says that male officers with GRCs can strip-search women. We say this policy is unlawful. Our pre-action letter sets out four grounds on which we plan to challenge it:

• The policy violates human rights. Article 3 of the European Convention on Human Rights is the absolute prohibition of people being subjected to inhuman or degrading treatment or punishment. It is clear that it would be a violation of Article 3 for a male officer to carry out a strip-search on a woman. This remains the case if that male has a government-issued GRC, and whether or not the woman knows about the certificate. The practice of not telling women the sex of an officer, or lying to her that the officer is female, is also a violation of Article 8 (privacy) and Article 10 (in relation to freedom to receive information). 
• The policy amounts to indirect discrimination and harassment against women because it places women at risk of fear, humiliation, indignity and harassment. It puts women at a particular disadvantage compared to men not only because women are more vulnerable and subject to greater taboos about physical modesty, but also because men pose a greater risk of sexual assault, voyeurism and exposure, and it is well known in the medical literature that a proportion of cross-dressing and trans-identifying men are exhibiting a sexual paraphilia. 
• The policy frustrates the purpose of legislation. The requirement in s54(9) PACE for the constable carrying out a search to be of the same sex as the person searched must be understood as a reference to actual sex, unmodified by a GRC; BTP’s failure to treat s54(9) PACE as requiring strip-searches to be carried out by a person of the same biological sex is therefore an error of law or ultra vires – beyond its authority. Similarly, PACE requires that all matters relating to persons in detention be recorded in the custody records. Failing to record and communicate the actual sex of individual officers undertaking searches means that this basic requirement is not being met. 
• The equality impact assessment is inadequate. No consideration has been given to the impact of the BTP Guidance on the protected characteristic of sex, when it is clear that women will be significantly more impacted by this policy than men. Nor is adequate attention paid to the protected characteristic of belief.

We call for the BTP to: 

• withdraw the policy and issue an interim policy that confirms detainees will only be searched under statutory powers by an officer or staff of the same biological sex (and not sex modified by a GRC) 
• agree to prepare a fresh policy, on searching trans-identifying individuals who ask to be searched by an officer of the opposite sex. This policy must take into account the impact on officers who may be under pressure to undertake these searches.

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