A judicial review heard in the High Court on 16 June puts a sharp question before the courts: when a trans detainee and a police officer both give informed consent to a cross-sex strip search, is the guidance that permits it lawful? Judgment has been reserved, so we are waiting. But the case itself, and what it represents for trans people in custody, is already worth paying attention to.
The challenge is brought by Sex Matters against the National Police Chiefs' Council and the Chief Constable of the British Transport Police. Both defendants had issued guidance acknowledging a genuine practical problem: the same-sex search provisions in the Police and Criminal Evidence Act (PACE) create a real difficulty for trans detainees whose gender differs from their sex as recorded at birth. Their guidance addressed that by permitting cross-sex strip searches where both the detainee and the searching officer give informed consent. Sex Matters is asking the court to find that guidance unlawful.
Fiona Barton KC and Robert Talalay appeared for the defendants, the bodies that wrote and operate the guidance.
What strikes me about this case is where the consent sits. A trans woman in custody, already in one of the most vulnerable situations a person can find themselves in, has said yes to this search, on her own terms, knowing what it involves. A police officer has said yes too. The guidance exists precisely because the rigid application of same-sex search rules, designed without trans people in mind, would force trans detainees into searches that do not reflect who they are and that they find distressing and undignified. The guidance is a practical attempt to treat people as human beings rather than as administrative categories.
Sex Matters' argument, as I understand it, is that even where consent is given freely on both sides, the legal framework does not allow that consent to override or sit alongside a coercive power. That is a serious legal question, and the court is right to consider it carefully. But the human question underneath it is just as serious: what happens to trans people in custody if this guidance is struck down? They are searched in a way that denies who they are, by someone they did not consent to, under a rule written for a world that did not account for their existence. That is not a neutral outcome, it is harm.
Policing by consent is one of the foundational principles of British policing. It means the relationship between the police and the public rests on mutual agreement and trust, not only on coercive authority. The defendants' guidance is an expression of exactly that principle: finding a way to act with dignity and with consent rather than simply imposing a procedure on a vulnerable person because the law technically allows it. I find it difficult to see how a ruling that removes the space for that kind of consent-based approach would represent an improvement for anyone, including for the integrity of the policing model itself.
Trans people are detained just as anyone else is. When they are, they deserve the same basic dignity. A search that a person has asked for, in a form they can bear, conducted by someone who has also agreed, seems to me to be better, not worse, than the alternative. The question the court is being asked to answer is whether the law as written leaves room for that. I hope it does.
We will watch for the judgment. When it comes, it will matter, for the guidance, for the police services that issued it, and for trans people who find themselves in custody and need to know that the system has thought about them.
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Dr Helen Webberley is a gender specialist, medical educator, and founder of GenderGP. She writes about gender diversity, trans healthcare, and the lives at the centre of both.
