By Gemma Fraser
Head of content
Police and other public bodies need “clear and unequivocal” guidance following the Supreme Court gender ruling to avoid the risk of legal challenges and damages claims against them, the Conservatives have insisted.
The landmark ruling that the legal definition of a woman is based on biological sex will have far-reaching implications – but it has also raised numerous questions over practicalities.
In policing, this centres around procedures such as stop-and-search and whether the practice of female officers searching biological males identifying as females will be halted.
It is understood rank-and-file officers are concerned over the current legal position following the judgment.
Scottish Conservative justice spokesperson Liam Kerr told 1919: “Scotland’s police, courts and prisons – like the whole of the public sector – are crying out for clear and unequivocal guidance from the SNP government on gender policy in light of the Supreme Court ruling. But they’re not getting it.
“These public institutions implemented the SNP’s self-ID mantra to the letter, which shamefully resulted in a double rapist being housed in a women’s prison.
“On a practical level, our police need updated guidance on who can and can’t carry out intimate searches of suspects and our prisons must be instructed that no male-bodied offenders can be housed in women’s prisons from now on.
“SNP ministers have put our public bodies at risk of legal challenges and damages claims, so their current dithering in response to the Supreme Court ruling is all the more shameful.
“The last thing our overwhelmed justice system needs now is even more confusion. The protection and rights of all women coming into contact with the system is paramount.”
The Scottish Government had argued that transgender people with a gender recognition certificate (GRC) are entitled to sex-based protections, while campaign group For Women Scotland argued they only apply to people who are born female.
The Scottish Government has accepted the judgment from the UK’s highest court and is amending guidance on the public boards legislation to take account of the ruling.
However, following an interim update from the Equality and Human Rights Commission (EHRC) – the enforcer and regulator of the Equality Act – the government said it is awaiting the publication of its new code of practice before it can issue guidance to public bodies.
“On a practical level, our police need updated guidance on who can and can’t carry out intimate searches of suspects”
Scottish Conservative MSP Liam Kerr
Alba Party leader and former Scottish justice secretary Kenny MacAskill welcomed the Supreme Court’s “common sense judgment that was long overdue”.
But he stressed that Police Scotland and the Scottish Police Authority (SPA) need to act quickly to end the current practice of female officers conducting body searches of biological men who self-identify as women.
“Officers have to carry out stop and searches, but it is preposterous to expect a female police officer to carry out a body search of an obviously male person self-identifying as female,” he said.
“Some of the lunacies are being dealt with and I would hope that long overdue common sense will prevail, but the leadership team and the SPA should be getting their finger out.
“The Supreme Court should be the clarion call for an end to the idiocy.”
The organisations which make up Scotland’s justice sector are now considering the ruling and making recommendations accordingly.
The EHRC released interim guidance on April 25 because “many people have questions about the judgement and what it means for them”.
It includes rules on facilities in places including hospitals, shops, and restaurants where “trans women (biological men) should not be permitted to use the women’s facilities”.
An updated code of practice will be provided by the end of June for ministerial approval.
The Commission said: “The code will support service providers, public bodies and associations to understand their duties under the Equality Act and put them into practice.
“We are currently reviewing sections of the draft code of practice which need updating.
“We will shortly undertake a public consultation to understand how the practical implications of this judgment may be best reflected in the updated guidance.
“The Supreme Court made the legal position clear, so we will not be seeking views on those legal aspects.
“The consultation will be launched in mid-May and last for two weeks. We will be seeking views from affected stakeholders.”
In response to the update, Scottish Green co-leader Patrick Harvie said: “This guidance is harsh, authoritarian and cruel.
“It is the polar opposite of what an equality and human rights body should be doing, and it’s deeply troubling to see the rights of some of the most marginalised people in our society being rolled back so easily.”
“It is preposterous to expect a female police officer to carry out a body search of an obviously male person self-identifying as female”
Alba Party leader Kenny MacAskill
The British Transport Police issued interim guidance to its officers following the Supreme Court ruling advising them that any same sex searches in custody are to be undertaken “in accordance with the biological birth sex of the detainee”.
However, Police Scotland is still considering its position.
Assistant Chief Constable Catriona Paton said: “Our ongoing review is considering the terminology and recording practices we use to collect and record sex and gender data and recommend improvements.
“This important work will consider [April’s] Supreme Court judgement as well as revised national guidance.
“We are also reviewing our guidance, policies and procedures within our organisation, to ensure that they are aligned to our values, comply with equality, human rights and data protection laws and meet our operational requirements.”
The Crown Office and Procurator Fiscal Service told 1919 there will be a public consultation providing an opportunity for organisations and individuals to share their views.
A spokesperson added: “The Crown Office and Procurator Fiscal Service is committed to the fair and effective prosecution of crime and to treating everyone with respect and dignity.
“We will consider the judgment of the Supreme Court in our ongoing review of prosecution policy in relation to transgender accused and the provision of services to victims and witnesses who identify as non-binary and transgender.”
The Scottish Courts and Tribunals Service said it would “take time to study the ruling from the Supreme Court and any implications it might have”.
A Scottish Police Authority spokesperson said it had noted both the judgement and the EHRC’s interim guidance, adding: “We expect both the judgement and the developing guidance to inform Police Scotland’s ongoing review.”
Meanwhile, the Scottish Prison Service said it is “considering any potential impact” the judgement may have.
The Scottish Government said that following the publication of the EHRC’s interim update, ministers have written to the commission “to ask them to confirm that they agree that no public body, service provider or other association should issue specific guidance before the EHRC Code of Practice and guidance is finalised”.
A spokesperson said: “As the EHRC is the enforcer and regulator of the Equality Act, we expect all organisations to consider its revised code of practice and guidance when to ensure there is a consistent and clear understanding of the correct application of the law for all involved in this complex area.
“The Scottish Government has already begun work on implementation. We have established a short life working group to ensure support and consistency across government.
“This work will position us towards a state of readiness to take all necessary steps when the EHRC’s Code of Practice and updated guidance are published.”