Discrimination / Police / What if I'm arrested?

Your rights as a trans/non-binary person if you’re arrested

Please note: some of the language used below is based on what the law says. We apologise if you find some of this language upsetting.

I’m trans. Can the police discriminate against me?

No. Your trans identity, your sex and your sexuality are protected by the Human Rights Act 1998 (HRA) and the Equality Act 2010.

Your gender and sexuality are important aspects of your fundamental human right to respect for your private and family life under Article 8 HRA. Public bodies, including the police, cannot discriminate against you because of it.

Additionally, the Equality Act protects people with certain ‘protected characteristics’ from harassment or discrimination. One of these protected characteristics is ‘sex’. Another is ‘gender reassignment’ which relates to your trans identity.

“Gender reassignment” is the wording used in the legislation but is understood as covering anyone who is trans. The Equality and Human Right Commission (EHRC) has agreed that the term “gender reassignment” is outdated and misleading, and has suggested that employers and service providers should use the word “trans”.

To be protected from gender reassignment discrimination, you do not need to have undergone any specific treatment or surgery to change from your birth sex to your affirmed gender. You can be at any stage in the transition process, and you do not need to have a Gender Recognition Certificate.

This means that the police can’t discriminate against you because you’re trans. However, there are certain things you need to know if you are arrested.

I’m non-binary – does this apply to me as well?

The legal position for non-binary people is less clear, as non-binary identities have been recognised in some areas of law but not in others.

In the context of arrest, unfortunately non-binary people are not recognised in the Police and Criminal Evidence Act 1984 (PACE), which contains the rules and guidance for police conduct. However, some court judgments have recognised non-binary people as being protected by the ‘gender reassignment’ characteristic. If you are non-binary and identify as trans, you may be protected from discrimination in relation to your trans identity.

You are also protected if you are discriminated against because someone believes you are trans, even if you do not identify as trans. This is known as ‘discrimination by perception’ and is unlawful.

I’m cis but gender-non-conforming – am I protected?

Yes, you are.

If you’re cisgender, but present in a gender non-conforming way, for example if you’re butch or a stud, you are protected from discrimination in two ways:

You are protected from discrimination on the basis of your “sex” which is a protected characteristic. For example, if the police harass you or discriminate against you because you do not fit within a stereotype of how people of a particular sex generally present themselves, this would be a form of sexual harassment or sex discrimination.

You are also protected from discrimination on the grounds of gender reassignment if the police mistakenly believe you are trans and harass or discriminate against you because of this. This is ‘discrimination by perception’ and is unlawful.

Will the police respect my gender in custody?

If your gender is clear to the police, then there should be no issue with your gender being respected. However, the law gives the power to police to take certain steps if they doubt your gender.

  1. What if I have a Gender Recognition Certificate? The police are not allowed to ask if you have a Gender Reassignment Certificate, and you do not need to have one for the police to respect your gender. However, if you choose to show a GRC, they must respect it, and treat you as the sex listed on your GRC.
  2. What if I state my preference? If the police are unsure of your gender they should ask you what gender you would prefer to be treated as. You can also offer this information voluntarily. If you state your gender and the police officers have no reason not to believe you (see below) then they should make a record of your gender on the custody report, and ask you to confirm this by signing it. They should then treat you as your stated gender for the rest of the detention. Unfortunately, if you are non-binary, this isn’t recognised in PACE, so you should state the sex you would prefer to be treated as.
  3. What if I state my preference but the police officers don’t believe me? If the police officers believe they have “grounds” to doubt your stated gender, then they can choose to treat you as the gender they believe you predominantly live as. “Grounds” to doubt your stated gender can include your ID or other “information” which suggests you predominantly live as another gender. If the police do this, they should record that they are ignoring your stated preference and the reasons why. This record can be important for any complaint or legal challenge you might want to make later.
  4. What if I don’t want to give a preference? If you don’t express a preference, then the police have to make efforts to determine which gender you “predominantly live” as, and treat you as that gender.
  5. What about any other circumstances? If none of the above apply, you will be treated as what “reasonably appears” to have been your sex registered at birth

Clearly these rules leave a lot of discretion to individual officers, and could be abused at the time. If this happens to you, get a copy of the custody record from the police to show what has happened if you want to make a complaint afterwards.

Why do I need to identify my gender in police custody?

There are certain stages during the custody process which have to take account of your gender. Therefore, these stages will be different for you depending on your gender identity.

These stages include:

As an adult:

When you first arrive in custody, the custody officer should ask (or you can tell them) whether you wish to speak in private with a member of the custody staff about any matter concerning your personal needs relating to health (including invisible disabilities), hygiene and welfare while in custody. This meeting can be with a staff member of a gender of your choosing, if you so request.

If you are a woman you should be asked in private whether you are likely to require any menstrual products while in custody. If you are a transgender man you should be asked in private whether you want to have such a conversation. Again, this meeting can be with a staff member of a gender of your choosing.  If you are not asked, or if you initially decline, you can request this private conversation at any point. These products are provided for free. If you already have any menstrual products with you, the custody officer can let you keep these with you. You can also have friends or family bring in menstrual products for you.

Once you are in custody the custody officer will ascertain what property you have with you and, in particular, anything which could be used for a harmful or unlawful purpose. They are permitted to search, or authorise a search, to the extent that they consider necessary. If you willingly empty your pockets, then further searching should not be considered necessary. However, if the custody officer does decide that a search is necessary, any strip or intimate search must be carried out by someone of the ‘same sex’. Police will treat you as the gender established by following the steps above. Such a search (as with any intimate search or strip search) must be carried out with one other person in the room, and out of sight of officers of a different sex.

Police officers can only ask you remove religious articles of clothing if they have reason to believe that the article is being worn wholly or mainly for the purpose of disguising identity. When you are asked to take it off yourself, this must be done out of public view, in the presence of an officer of the same sex as the gender they have established you to be (see above) and out of sight of anyone of a different sex. There don’t seem to be any specific requirements if the police decide that force is required.

Once in custody, the police have the power to carry out examinations to establish whether you have any identifying marks which might identify you as the person involved in the commission of an offence or otherwise. They can then take photographs of identifying marks they find. This must be done by someone of the same sex as the gender the police have established you to be (see above).

In any other circumstances in which the removal of clothing is likely to cause embarrassment (e.g. giving samples) then it must not be done in the presence of anyone of a different sex from the gender the police have established you to be (see above), unless they are a medical practitioner.

There are some additional elements for a young person:

Anyone under 18 who identifies as a woman should be in the care of a woman. This woman should enquire and provide information about the young person’s personal needs regarding health, hygiene, welfare and menstrual products.

Any intimate searches must be carried out by an officer of the same sex as the gender the police have established you to be (see above) and out of sight of anyone of a different sex. In addition, an appropriate adult should be present. This adult should also be of the same sex, unless you request otherwise. You can also request that there be no appropriate adult present, but must make this request in the presence of the appropriate adult and they must agree. A record of such a decision must be made and signed by the appropriate adult.

Will I have to give information about my gender in public?

There is nothing which specifically requires officers to ask about your gender in private. However, steps of identification are required to maintain your dignity, minimise embarrassment and secure your co-operation.

Because of this, you may be able to bring a claim under the Equality Act 2010 against an officer who embarrasses you by asking questions about your gender publicly (intentionally or not). This depends on the specific situation, and you should get legal advice to help assess your case.

Do I have to answer police questions?

There are not many questions you must answer.

If the police misidentify your gender, you may wish to correct them as otherwise they will treat you as the gender they have decided on. Unfortunately, if police don’t believe you, they can make an assessment of what gender they believe you predominantly live as. You may wish to provide them with evidence of your gender if you wish to convince them.

Otherwise, you do not have to give your name or personal information while you are in custody without charge. We would recommend waiting until you can talk to a solicitor, and then asking their advice as to whether you should give your details. Prior to this you can answer “no comment” to any question (with the exception of if you are stopped under specific suspicion of antisocial behaviour).

Can I tell the police about my medication or any invisible disabilities?

As soon as practicable after your arrival at the police station you must be given an opportunity to speak privately with a member of the custody staff (who you can request to be of a gender you prefer) about any personal needs that might affect you while in custody. You can also request this yourself. For young or vulnerable people this must be with an appropriate adult.

Can I talk to my solicitor in private?

Yes. You have the right to consult privately with a solicitor in person or on the phone.

Consulting with your solicitor is only private if you are consulting with them regarding your interview. If you are not consulting with them about your interview, a police officer may be present.

Your solicitor should keep your case matters confidential, and should inform you if they have to share any information with the police.

Can I talk to friends during my arrest or time in custody?

No. The arrest and detention process is intended to keep you isolated.

You have the right to have one person notified that you are in custody, but this person won’t be able to stay with you, and you may not be able to talk to them yourself.

If you’re under 18, you should have an appropriate adult with you during any interaction with an officer. This adult can be a family member or older friend, or assigned to you.

What are the PACE Codes?

The Police and Criminal Evidence Act 1984 Codes of Practice, known as the PACE Codes, are legal guidance for what the police should and shouldn’t do. It’s a good idea to read these so you know what the police should and shouldn’t do. You have a right to the Codes when you are in custody (and should be told that you can see a copy).

The section which relates to specifically to the position of transgender people is Code C, Annex L.

Can I get a record of what has happened in custody?

Your solicitor (and/or appropriate adult) must be given access to your custody record as soon as practicable after they arrive at the station, and any time on request.

You, your solicitor, or your appropriate adult can request a copy of your custody record and/or have sight of the original custody record from the moment you leave custody until 12 months after release.

I’m worried about correspondence being sent to my home address – what should I do?

If you do not want correspondence from the police coming to your home, you can try to give your solicitor’s address as your correspondence address. However, you must not give it as your home address.

Unfortunately, whether the police will agree to do this depends on your specific circumstances including what the charge is, what the penalty is, and the discretion of the officers. Nevertheless, it is worth raising with your solicitor, especially if you have good reason to avoid correspondence being sent home.

What are my rights on this?

Find out more about your rights and how the Human Rights Act protects them

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