Searching transgender prisoners
A male who has a GRC stating that he is legally a woman will be ‘treated as woman’ whilst he is in prison. You can read about the implications this has for data collection and statistics on the When males are recorded as women page. This also means that he will be searched according to the protocols for searching female prisoners.
Searching protocols for prisons in England and Wales are set out in the National Offender Management Service National Security Framework 3.1 Security of the Person, Ref PSI 07/2016.
There are two different types of search on prisoners: rub-down searches and full-searches. The type of search that concerns us here is full-search.
Full-searches are what would colloquially be known as ‘strip searches’. Full-searches are undertaken by two prison officers. At no time may the person being searched be completely naked: first the top half is searched, clothing is returned, then then bottom half. There are significant differences in full-searching for men and for women.
Searching men & women
There are important differences in the searching protocols for male prisoners and for female prisoners:
1. Who does the searching
2. What happens during the search
3. When the search is required
Who does the searching?
Male prisoners are searched by men. Females are searched by women. Searching takes place out of sight of the opposite sex. The reasons for this are self-evident.
There are significant differences for men and for women.
For men, there is only one level of full-search, which involves removal of all clothing, first top half, then bottom half. For women, there are two levels of full-search. Level 1 involves removal of clothing apart from underwear. Level 2 involves removal of all clothing, including underwear. The default full-search for women is Level 1. A Level 2 search may only be undertaken if there is intelligence or suspicion that she has concealed an item in her underwear, or if an illicit item was discovered during a Level 1 search.
Provision of clothing during search:
A woman who is being full-searched is provided with a pre-searched dressing gown to wear after the top half of her body has been searched for both Level 1 and Level 2 searches. Men don’t get a dressing gown.
Genital and anal inspection:
Occasionally for men, but never for women, genital and/or anal inspection may be included. This can only be carried out if there is intelligence or suspicion that he has concealed an item in these areas of his body. Men may be asked to bend over and/or squat. Officers may use mirrors to assist. He may be asked to lift or move his genitals and/or pull back his foreskin.
A woman must never be asked to squat or bend over and no genital or anal inspection is allowed.
When is searching required?
Different searching arrangements exist depending on the circumstances of the search and the type of prison e.g. high security, closed, open. In some cases, searching is mandated. In others, searching depends on individual risk assessment of that prisoner and the situation.
Sometimes there is a difference in the searching requirements for male and for female prisoners, even though all other circumstances, such as security level of the prison and situation, remain the same. Where there is a difference, males are subjected to a higher level of searching than females.
These differences in the searching requirements for male and for female prisoners are not discriminatory against men, nor are they prejudicial in favour of women. Differences reflect the fact that male prisoners, as a group, represent a higher degree of risk than female prisoners, as a group. Clearly, no prisoner should be subjected to needless and intrusive searching and there are existing organisations campaigning for prison reform.
Searching ‘transgender’ prisoners
The searching protocols for ‘transgender’ prisoners are covered in Annex H of the document, Searching of Transsexual Prisoners. The protocols differ according to whether the prisoner does or does not have a GRC.
Males with a GRC
A male with a a GRC has the right to be full-searched according to the searching protocols for female prisoners.
It is important to make it absolutely clear that there is no requirement for any medical or surgical treatment before a GRC can be granted. What this means is that a male who has a GRC and whose body is intact and unaltered has the right to be strip searched according to the female searching protocols. Annex H confirms this:
the right to be searched according to the protocols for the ‘acquired gender’ exists irrespective of their bodily characteristics (including genitalia)
This means that males with a GRC have the right to:
1. Be searching according to when it is mandated for female prisoners
2. Be full-searched by female prison officers
3. Never be subject to genital or anal inspection regardless of risk or suspicion
What does this mean for female prison officers?
This provision in Annex H means that female prison officers can be compelled to search a male prisoner, up to and including visually inspecting his naked body, penis and testicles.
Annex H acknowledges and anticipates that “some staff may not feel comfortable with searching individuals who are still undergoing surgery and have genitalia of the opposite sex.” However, female prison officers who object should be provided with “adequate support and training to assist [them] in undertaking this task.” This may include allocating additional officers to the search if there is cause for concern over the safety of officers. However, these officers must still be female because the search must take place out of the sight of male officers.
It cannot be stated often enough: Female prison officers can be compelled to search a male prisoner, including visually inspecting his naked body, penis and testicles.
What does this mean for prison security?
The differences in searching protocols for men and for women have been formulated based on the risk that male and female prisoners pose. Female prisoners, as a group, pose a much lower risk than male prisoners. It is for this reason that, where there is a difference in searching protocols, they are subjected to what can broadly be described as a lower level of searching. It is not simply because they have female bodies. It is because of the level of risk that they pose.
Conversely, male prisoners, as a group, pose a much higher risk than female prisoners. It is for this reason that, where there is a difference in searching protocols, they are subjected to a higher level of searching. It is not simply because they have male bodies.
What of males who ‘transition’? What is their level of risk? It is accepted that males who ‘transition’ either prior to imprisonment or whilst they are in prison have an offending profile that is at least equivalent to males who do not ‘transition’. There is evidence to suggest that the incidence of the most violent crimes, including murder and attempted murder, rape and attempted rape, as well as the incidence of child sexual offences is in fact higher in the group of males who ‘transition’ compared to males who do not. You can read more about this at https://fairplayforwomen.com/transgender-prisoners/.
In the section, Who are the males in women's prisons? we looked at the males who are known to have been held in the female estate. To recap: crimes these males have committed are overwhelmingly violent offences, sexual offences and child sexual offences. This supports a pattern of offending for males who have ‘transitioned’ and a level of risk that is consistent with the male prison population and that does not reflect the level of risk posed by female prisoners. Allowing this group of males to be searched according to female protocols does not reflect the level of risk that they pose.
Prisoners who do not hold a GRC
In England and Wales, males who have no GRC and who have had no surgery must be full-searched according to the usual procedures in place for men. However, the situation is different in Scotland which operates according to the principle of self-ID: if a male consistently says and ‘shows’ that he is a woman, then he is one and will be treated as such by the Scottish Prison Service. No GRC is required, neither is any ‘reassignment surgery’. This is stated in the Scottish Prison Service Guidelines for transgender prisoners.
The Scottish policy framework allowed Andrew Burns AKA Tiffany Scott to be successful in his demands to be strip searched by female prison officers. Andrew Burns/Tiffany Scott is an exceptionally violent and dangerous criminal who has a history of particularly vicious assaults on prison staff. He remains in the male estate. He ‘transitioned’ in 2016. Despite his violent nature, despite having no GRC, no surgery, no hormone treatment and being known as a “a full-time menace [who] makes it his daily business to be as difficult as possible” female prison officers were ordered to perform full-searches on him. A prison source stated, “This week, he insisted on being strip-searched by female warders instead of male. The women gritted their teeth and did what they were told on the first day. But on the next shift, they refused point blank. Nobody blames them. Burns is creepy and quite clearly a man so there’s no reason why professional warders should have to go along with this fantasy.” (Jane Hamilton, Mirror, 1 April 2016).
It is worth stating again: Female prison officers can be compelled to search a male prisoner, including visually inspecting his naked body, penis and testicles.
In England and Wales, prisoners who have no GRC but who have had ‘reassignment’ surgery are not prevented from being searched by staff of the legally opposite sex, provided it is decided that this is the appropriate approach and the prisoner enters into a voluntary compact to permit this. This means that a male who has no GRC, but who has had ‘reassignment’ surgery can be full-searched by female prison officers. A male who has had ‘reassignment’ surgery but has no GRC cannot be asked to squat as part of a search. Annex H emphasises the importance of taking a sensitive approach towards the wishes and needs of the prisoner. The needs and wishes of prison staff are not mentioned.
Female prisoner are not the only women who are affected when males are held in women’s prisons. Strip searches are supposed to be same sex only. Yet female prison officers can be compelled to strip search a male prisoner, including visually inspecting his naked body, penis and testicles. At Keep Prisons Single Sex, we believe this is unacceptable.