Is Gender Recognition an “access all areas” pass?

The Gender Recognition Act 2004 was passed with little public scrutiny or consideration for women’s rights.

A critical question concerns the provision in Section 9 that a gender recognition certificate changes a person’s sex for all purposes. Is this an “access all areas“ pass? 

When the Act was passing through the house of Lords in 2004, Baroness O’Cathain raised questions and warned of unintended consequences:

“My Lords, I return to this issue of Clause 9 and its blanket assertion that a person who gets a gender recognition certificate changes sex in law ‘for all purposes’. It is notable that the Government chose to call this the Gender Recognition Bill, ‘gender’ being a political term favoured by sociologists who like to think of one’s sex as a fluid concept and something which can be changed. ‘Gender’ is the word used to write most of this Bill.

However, in Clause 9 where it really counts, the word used is ‘sex’. In law it is a person’s sex that is said to change. In Committee we have had all the arguments about how ludicrous it is to suggest a person can change sex, but the Government are determined to legislate for it. However, it is not yet clear why it is that a person’s sex must be changed in law for all purposes. I fear that if we leave this clause in, the law of unintended consequences will occur in spades.”

Lord Campbell of Alloway agreed:

“I have never seen a statute quite in this form before. The Bill says ‘becomes for all purposes’, and it is not limited to the purposes of the Act. I do not understand what all the purposes are if they are other than the purposes of the Act. If they are other than the purposes of the Act, why are they dealt with in the statute? I hope that I am not being tiresome, but I feel that this is a curious way in which to legislate.”

Lord Filkin, the Minister who was proposing the bill, waved this away breezily:

“Clause 9 allows for relative simplicity in the Bill itself. It contains a general proposition about the effects of the issue of a full gender recognition certificate and hence avoids the need to spell out each and every instance in law for which gender is relevant. Why does that matter? It matters because, pretty obviously, we have been legislating for hundreds of years with reference to gender. There are literally thousands and thousands of references to gender in legislation.”

In presenting the Bill to parliament Lord Filkin had mentioned examples such as marriage and entitlement to benefits and pensions. What he didn’t say was that “for all purposes” would mean a person born male would have the right to watch women undress, and to search their bodies. Did this all come under the sweeping provision for the “relative simplicity” of the Bill? 

“Assigned as male at birth she had lived as a man for many years – but Skye is, in fact, female” – Police Federation

2021: Revising the policy on searching prisoners

On March 8 2021 Lord Hunt of Kings Heath tabled a question to ask Her Majesty’s Government:

“what plans they have to revise the current policy that women prisoners have the right to be searched only by officers of female sex assigned at birth, as outlined in Procedures for searching people: PSI 07/2016, published on 26 July 2016, as part of their review of those procedures.”

Lord Wolfson of Tredegar, for the Ministry of Justice, responded in writing saying that the policy (which concerns England and Wales) is under review and a revised version is intended to be published later this year.

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.

He states that in reviewing the policy, the Prison and Probation Service has consulted with the Government’s Legal Department and HMPPS Equalities Team. 

“The new policy will be compliant with the Equality Act 2010, Gender Recognition Act 2004 and the European Convention of Human Rights.”

What about the human rights of female prisoners, visitors and staff? 

We believe that proposed approach of treating male officers with a GRC as if they were really female, in relation to searching female prisoners, is not consistent with the European Convention on Human Rights, nor is it compliant with (or required by) the Equality Act 2010. 

Article 3 of the European Convention on Human Rights provides that 

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 of the Convention provides:

“Everyone has the right to respect for his private…life…

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

These articles have been applied to the situation of people being searched as prisoners and as visitors.

Article 17 of the International Covenant on Civil and Political Rights guarantees the right to privacy. The Human Rights Committee, in its General Comment 16 on Article 17 stated that: 

“[s]o far as personal and body search is concerned, effective measures should ensure that such searches are carried out in a manner consistent with the dignity of the person who is being searched. Persons being subjected to body search by State officials, or medical personnel acting at the request of the State, should only be examined by persons of the same sex.” 

In accordance with this, rule 19 of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) states that 

“male members of staff should never be involved in the personal searches of women prisoners including pat down and frisk searches. All searches of women should be carried out by women.”

In relation to strip searches, it emphasises that:

“Special sensitivity should be demonstrated in the case of women, however, because they are likely to feel the humiliation of undergoing intimate searches. The experience may be extremely distressing and traumatising if they have been victims of sexual abuse in the past.”

In line with these international human rights standards, the current policy is that 

“Female prisoners, visitors and staff must only be searched by female staff.” 

The current policy on searching considers in some detail the situation whether a transgender prisoner has, or does not have, a Gender Recognition Certificate and has, or has not, undergone hormonal and/or surgical procedures or treatment. It states that procedures must be sensitive both to the needs of prisoners and staff, and must remain proportionate and lawful. An individual voluntary agreement should be put in place for each such prisoner.

It does not yet consider these questions in relation to the sex of transgender staff undertaking searches. 

It is clearly humiliating for a woman to be forced to be searched by someone male. And this humiliation is not lessened by hairstyle, clothing or makeup, hormone treatment, pronouns, a feminine demeanour, a government certificate or a have-they-have-they-not guessing game about male genitals. 

If the proposed policy is adopted the prisoner or visitor will be forced to be examined by someone she thinks, or knows, to be male, or simply not given a straight answer to the question of whether she can be guaranteed to be searched by a female officer. She will be viewed as a bigot for even asking. And anyone else who tries to protect her from this treatment, or who challenges the policy, will be called a bigot, TERF, transphobe, and their livelihood will be put at risk. 

This is degrading treatment.

Is it unintended? 

Is this proposed policy a self-imposed overreach (the Ministry of Justice and the Government Legal Department are both Stonewall Champions)? Or could they be right that this degrading treatment of female prisoners (and visitors and staff) is what the GRA 2004 requires

Can the government really give a man a certificate for for £5 which gives entitlement to watch a woman undress, or run hands up her inner thighs? Could the legislators who designed the Gender Recognition Act have foreseen that this would be the result of their actions? Is it what they intended?

It is clear that this was what the lobbyists wanted. In 1999, in the case of Fortnum v Suffolk County Council, a transwoman challenged whether a woman with learning difficulties could say no to receiving intimate personal care from a transsexual, instead of a female carer as requested. The Trans Rights lobby group Press for Change supported this case, and said: 

“This case once again highlights the invidious position in which trans people and others are placed by the continued failure of the UK government to allow transsexual people full legal recognition in their new gender and, in particular, by the refusal to correct their birth certificates.”

And the legislators should have been able to foresee this situation, because the same year that the GRA was going through parliament a case came to House of Lords (as the then supreme court) concerning precisely this issue, in relation to the searching of suspects by police. 

The case of A v. Chief Constable of West Yorkshire Police concerned a post-operative transsexual who sought to become a police officer.

The Chief Constable of West Yorkshire had rejected an application by “A” to become a constable on the ground that A could not perform the full searching duties. The Chief Constable faced these constraints:

  1. Under English domestic law (before the GRA) A remained a man and therefore could not lawfully search women pursuant to section 54 of the Police and Criminal Evidence Act 1984. 
  2. As an “apparent woman”, A could not in practice search men pursuant to section 54. 
  3. It is necessary that a constable should be capable of searching either men or women.
  4. The Chief Constable could not excuse A from all searching duty without alerting colleagues that A was transsexual, which he believed would be deeply unacceptable. 

Although a transsexual could be excluded from a job that was reserved only for a woman, the job of police constable was open to both men and women.

Lord Bingham of Cornhill cut this gordian knot by pronouncing that “the same sex” in section 54(9) of the 1984 Police and Criminal Evidence Act; “woman”, “man” and “men” should be read 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”.

Lord Bingham said: 

“No one of that gender searched by such a person could reasonably object to the search.”

But there was no evidence to support the declaration that no women could reasonably object to being searched by such a person (and no consideration of how this test “indistinguishability” would be applied. As highlighted by the arguments around the Scottish Forensic Medicine Bill over whether a woman who has been raped can ask for a female doctor, based on sex, many women do in fact reasonably object. 

The case of A v West Yorkshire Police was being considered after Christine Goodwin’s win in the European Court of Human Rights, and at the same time as the The Gender Recognition Bill was going through Parliament. In the judgment, Baroness Hale noted the intervention of the Secretary of State for Trade and Industry (Patricia Hewitt at the time), that: 

“In the light of the Gender Recognition Bill, currently before Parliament, there is no policy objection to regarding Ms A as female for all purposes, including intimate searches. Nor would it be inconsistent with the wider ranging provisions in the Bill for us to hold that European Community law required that it be anticipated in this respect.”

Lady Hale remarked:

“Once recognised, the reassigned gender is valid for all legal purposes unless specific exception is made. It will no longer be a genuine occupational qualification that the job may entail the carrying out even of intimate searches. In policy terms, therefore, the view has been taken that trans people properly belong to the gender in which they live.”

So yes, shockingly, it seems that Lady Hale anticipated that a Gender Recognition Certificate would be an access-all-areas pass. It would not stop outside your clothing, or in the case of a doctor, at the entrance of your vagina. 

This aspect of it, as far as we can find, was never discussed in Parliament, never put to the women of the country and never publicised.  

As Naomi Cunningham has written, women as customers or service users have the option to walk away, declining care or service from a transwoman in a situation such as a bra fitting:

“A woman receiving treatment as a patient or services as a client or consumer is not doing anything that is controlled by the Equality Act 2010, so no question arises whether in insisting on being attended to by a woman she is “discriminating,” or whether there is a valid exemption that excuses her conduct: this is simply a matter of her boundaries, her dignity, her preference, and her consent.⁠ No means no.”

The same is not true for a woman in prison or police custody, or sectioned under the Mental Health Act, or for an elderly and otherwise vulnerable woman in a care situation. Her conduct is constrained. She cannot say no. And it is through violating these women’s boundaries that gender identity law and policy has often advanced. 

We don’t agree that forcing women to be searched by males with a Gender Recognition Certificate is consistent with the Equality Act 2010, Gender Recognition Act 2004 and the European Convention of Human Rights.

While no express exception was made to take same-sex searching under the Police and Criminal Evidence Act 1984 (PACE) beyond the reach of s.9 of the GRA, that doesn’t mean that a GRC gives a trans-identifying police officer with a GRC a legal entitlement to conduct same-sex searches of suspects of the opposite biological sex, it just means that  such a search could not be said to be contrary to PACE. 

A policy of excusing officers with the protected characteristic of gender reassignment from searching duties could still be lawful; and given the gravity of the risks inherent in permitting officers with GRCs to conduct same-sex searches in their acquired sex, such a policy would seem to be easy to justify. Any argument that an officer had been subjected to a detriment for the purposes of the Equality Act in being so excused would be unattractive in the extreme.

What now? 

If HMPPS adopts a policy that forces female prisoners to be searched by biological males in possession of gender recognition certification (something that would be in practice degrading treatment, if not assault) it is likely to be judicially reviewed. 

Robert Buckland
Robert Buckland QC MP

The Secretary of State for Justice, Robert Buckland QC MP, should be in no doubt, having seen the Fair Play for Women v ONS case, that women can raise the money and organise the representation to bring such a case. 

The government could head off a judicial review by adopting a policy that reflects this. 

Better still, the government could use for the provisions in the GRA to allow amendment of other legislation to deal with “difficulties or complexities”, to bring PACE and other relevant legislation on searching of prisoners in line with women’s human rights. The upcoming Police and Crime Bill is an opportunity to make amendments to make clear that sex matters when it comes searching.  Or the Secretary of State could use the safeguard offered by Section 23 of the GRA to make amendments to the legislation by order. 

All too often policies and laws replacing sex with gender identity have been made without public scrutiny, often violating the boundaries of the most vulnerable women. Doing this is no longer an option. If the government wants to declare that it issues certificates that allow men who identify as women to undertake examination of women’s bodies, it must justify this in public, ideally in Parliament through legislative debate, and failing that in open court. 

If Stonewall want to make the case that this is what “acceptance without exception” requires,  then their arguments in the public square are welcome.

It must not be left to the most vulnerable women in prison, and the prison officers trying to protect them to try to negotiate or endure this state-imposed humiliation and assault.