Police strip-searching: Sex Matters’ judicial review

On Tuesday 16th June Sex Matters will be in the High Court for a judicial-review hearing. Our claim is against the National Police Chiefs’ Council (NPCC) and the chief constable of British Transport Police (BTP), and concerns guidance both have issued regarding strip searches performed on trans-identifying detainees. The secretary of state for the Home Office is named as an interested party. 

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 Our claim was therefore withdrawn by consent and BTP was ordered to make a contribution to our costs.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.