Queensland University of Technology Law and Justice Journal
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Queensland University of Technology Law and Justice Journal |
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CATHERINE LITTLE, [*] PAULA STEPHENS[**] AND STEPHEN WHITTLE[***]
The praxis and politics of policing in relation to transgender people
raises two central issues, firstly, their employment rights
as applicants and/or
employees of the police service, and secondly, as members of the community being
policed and in receipt of the
services of the police. The main focus of this
paper is the employment status of transgender people in the police service in
England
and Wales (UK), which is currently in an anomalous position. There have
been very few cases in this area. The cases are, M v Chief Constable of West
Midlands Police[1] and A
v Chief Constable of West Yorkshire
Police,[2] both of which involved
the refusal of employment to a male to female transgender person, and the case
of Ashton v Chief Constable of West Mercia
Police[3] in which a male
to female transgender person claimed unfair dismissal following transfer to a
clerical post in the police service
after undergoing gender reassignment.
The first two cases involved transsexual (male to female) women who had
undergone gender reassignment and who then applied to become
police officers.
Both were initially offered training positions, but then the offers were
withdrawn. The police services involved
stated the reason for the withdrawal was
that the two women could not fulfil the full duties required of a police
officer, in particular
the searching of suspects. In the UK, searching by police
officers is regulated by the Police and Criminal Evidence Act (PACE)
1984. The regulations include provision for the sex of officers to be the
same as the sex of suspects in certain types of search (which
will be looked at
in detail further in this paper). The argument of the police services was quite
simple, they would have what appeared
to be normal police women on duty who
because of their legal status as men would not be able to perform searches. If
they searched
women the police service would be liable if a complaint was made,
and because of their appearance it would not be appropriate for
them to search
men. The case of Ashton v Chief Constable of West Mercia Police was more
complex, but in essence the police officer was moved to an entirely unsuitable
civilian role because the police service felt
she could not fulfil her duties as
an officer on exactly the same basis.
These cases pose some interesting
issues for the debates around gender diversity in policing and the need to
develop a theoretical
framework that goes beyond binary oppositions generated by
a lack of recognition of diversity. They also raise the question about
the
suitability of transgender people to participate in policing as police officers.
The argument used to exclude transgender people
from policing is that, should
they be employed, they would not be able to conduct lawful searches. Thus,
transgender people become
categorised as “other”, a “third
sex”, being neither male nor female for the purposes of conducting
searches.
The refusal to employ transgender people in the police
service, in the UK, falls within the ambit of general sex discrimination law,
details of which are outlined in this paper. This is very different from the
position in Australia where transgender discrimination
has distinct provisions
either of its own, or under sexual orientation law. These arguments justifying
the exclusion of transgender
people from policing are similar to those presented
in the resistance of the police to the incorporation of women and equal
opportunities.
The essence of discrimination against a transgender person is
summarised by a statement made in the case of M v Chief Constable of West
Midlands Police:[4]
As a legal male, although presenting as a female, searching a female, even by consent would not be genuine, because the person being searched would not know the applicant was a transsexual. If the fact had to be spelt out each time, the force would lose credibility in the community. Within the force, there would be a loss of effectiveness - another officer would always be involved in a search, wasting time and resources.[5]
This statement goes against the grain of current rhetoric on
equal opportunities and the management of diversity in policing in the
UK.
In Australia, the question of transsexual or transgender police officers
appears not to have arisen. The state police forces were
contacted and asked
whether they had any policy of employing trans police officers and whether they
did in fact employ any such officers.
Five forces replied, the Northern
Territory, Tasmania, South Australia, Queensland and Victoria. All said they had
no policy and
all said they did not currently employ any trans officers. All of
them said they would recruit on the basis of their equal opportunities
policies
and merit, and so would not automatically exclude trans people from the force.
Then again, the very fact that the matter
has not yet arisen may imply that
trans people do not feel comfortable applying to work in a force that does not
have a specific
policy of inclusion for trans officers. What is certain is that
Australian police forces are not truly representative of all members
of the
communities they work in. Yet, as states increasingly provide protective
legislation to transgender and transsexual people,
it is surely the case that it
will not be long before a trans person applies to a force.
This paper
addresses the approach to equal opportunities and diversity, in particular
gender diversity, by police forces in the UK.
It will show that police
“canteen culture” and the “common sense” approach to an
understanding of gender
excludes trans people now, as it did women in the past,
from serving as police officers. Then it will consider the legal changes
that
have taken place since the decision of the European Court of Justice (ECJ) in
P v S and Cornwall County
Council[6] which provided
anti-discrimination protection in employment to transsexual people, and
specifically the mechanisms which were then
put in place, in 1999, to exclude
transsexual people from becoming police officers. The paper then considers the
basis of the legal
challenges that are being made to this statutory provision,
which appear to directly contradict the ECJ’s decision, in particular
the
arguments that are being made in relation to the statutory powers relating to
searches, and the same-sex searching requirements
of the Police and Criminal
Evidence Act 1984. It will be shown that the exclusion of trans people from
policing because they could not fulfil all the duties of a police officer
are
based upon imaginary and therefore discriminatory notions. The statistics and
figures of the Home Office prove that police officers
are very rarely called
upon to perform intimate searches, and therefore trans police officers could
easily be accommodated within
operational mechanisms and organisation. The final
part of the paper looks specifically at recruitment policies, procedures and
practice
and shows that it would take only some small adjustment to make it much
more possible for members from minority groups to apply,
be seriously considered
and even appointed. It is hoped that the lessons learnt from the UK experience
will encourage forces in Australia
to consider how they could recruit trans
police officers, rather than how they could avoid doing so.
On the whole the police approach to equal opportunities in England and
Wales, has arisen and developed as a response to external pressures
rather than
from a genuine commitment to reform from within. Pressure in the form of
increasing and high profile sex and race discrimination
cases, led Her
Majesty’s Inspectorate of Constabulary (HMIC) to issue a
circular[7] instructing all police
force areas to introduce (where not already in existence) and implement an equal
opportunities policy and
internal grievance procedures. The circular
stated:
The effects of equal opportunities policies will be to secure for the organisation the best recruits from the widest available range of candidates; to ensure that the best use is made of the skills and abilities of all employees; and less directly, to reinforce the professionalism and image of the organisation itself.[8]
More
recently the approach to equal opportunities has been to develop and manage
diversity to ensure that the police service represents
the diverse communities
that it polices. The approach now is to do more than simply take measures to
further the advance of women,
ethnic minorities or any other
group.[9] Thus, the purpose of equal
opportunities is about the creation of fairness, where every member of the
police service, irrespective
of difference, can ‘flourish, develop and
give their
best’.[10]
Interest in
policing and equal opportunities has heightened in the UK since the murder of
the black teenager Stephen Lawrence and
the subsequent inquiry by Sir W
Macpherson into the police investigation of his
death.[11] This has primarily arisen
as a result of the public debates about police institutional racism and
organisational/occupational police
culture. The impact of the Macpherson Report
on developing the diversity approach to managing equal opportunities in policing
has
been considerable. Her Majesty’s Inspectorate of Constabulary for
England and Wales has driven the policing agenda to ensure
all force areas are
becoming more effective in dealing with cultural diversity within policing.
Though scholars of policing have
welcomed the Macpherson Report, one rather
negative effect of its publication is that resources have concentrated solely on
race
issues. A consequence of the dominance of the public debate on race and
policing has been to stifle, if not silence, the debate
around gender diversity
in policing.
Research on gender discrimination in the police service has been
dominated by studies on women’s experiences, concluding that
despite the
existence of anti-discrimination law and policy, discrimination is still
widespread.[12] The volume of
research on gay and lesbian officers has been rather more
limited[13] and virtually none
exists on the experiences of transgender officers.
It is hardly
surprising that studies on gender relations and gender discrimination, or more
specifically on women in policing, have
developed in the way they have. Policing
studies have been dominated by male discourse generated predominantly by male
academics
writing about policemen. Such discourse has not only failed to take
account of women’s experiences but has also failed to consider
men and
masculinities as problematic. Consequently, this has meant that feminist
academics have been marginalised in policing studies
and studies on women in
policing have developed almost as a sub-category of mainstream policing
studies.[14]
The earlier
literature on women and policing reflects a view that the role of women in
policing should be limited, or that they should
have a specific role to perform,
one that does not involve the use of force. Some of the studies on the
performance and physical
capability of policewomen questioned if policing was a
suitable job for women.[15] The
common sense, taken for granted assumption that women are not suitable for
police work is a theme that has dominated both the
literature on women in
policing, and police cultural norms.
In the world of policing, policemen
and policewomen are perceived as the antithesis of one another and must engage
in the activities
associated with their gender in order to maintain their
masculinity or femininity. The experiences of policewomen are often explained
in
the context of a ‘masculine police
culture’[16], a culture which
perpetuates the underlying gender constructions of man/woman, male/female,
feminine/masculine, and treats the definition
of these concepts as taken for
granted assumptions. Focus on these oppositional categories gives rise to the
assumption that these
categories are unified, that is, all men, and all women,
are alike and should behave in accordance with their gender role. The emphasis
being on natural, biological differences.
Police cultural oppositions
are based on gender dichotomies with aspects of police work being associated
with either female or male
characteristics. Hunt has suggested that binary
police cultural oppositions based on female/male dichotomies can be identified
thus:
| female | male |
| formal | informal |
| academy | street |
| Inside | outside |
| management | street cop |
| administration | crime fighting |
| social service | rescue activity |
| paperwork | crime fighting |
| formal rules | informal rules |
| legal money | clean and dirty money (corruption) |
| marital sex | illicit sex |
| domestic women | whore/dyke |
| emotional | instrumental |
| intellectual | physical |
| clean | dirty |
The construction of gender as based on difference, either biological or
socially constructed difference (role theory), poses a problem
in attempting to
locate gay, lesbian and transgender officers in the police service into a
theoretical framework. Their position
is better understood from the viewpoint of
gendered subjectivities and identities, which gives primacy to ways of thinking
and valuing.
Furthermore, the focus on ‘identity in the context of
masculinities/femininities emphasises how power works through constraining
feelings, thoughts and
actions’.[19] The cultural
values of policing and the acceptance of them by the individual officer (agency)
within the structural constraints of
policing allows for a better understanding
of diversity. Police officers, both male and female, negotiate strategies for
dealing
with the cultural norms and values of policing. For women officers this
can entail choosing to “become one of the boys”.
Although police
culture can be a controlling force officers can and do challenge that culture.
The very nature of undergoing gender
reassignment is in itself challenging to
police culture. The taking of a sex and/or race discrimination case is another
way of challenging
the cultural values inherent within policing.
The
sexuality of officers has been commented upon in studies of women in
policing[20] as a means of
illustrating the social control of women in a male-dominated organisation, and
as an aspect of male/female interaction
in the
workplace.[21] However, that social
control extends to all those, that is, gay, lesbian and transgender officers who
are identified as “other
to” male normative heterosexuality which is
at the centre of police cultural norms based on hegemonic masculinity. Thus, a
focus on gendered subjectivities and identities rather than gender-difference,
which is based on comparing men and women in terms
of biological and socially
constructed difference, is more helpful because it assists in acknowledging the
existence of gender diversity.
The current emphasis on binary oppositions of
gender suppresses/silences the voice(s) of gay, lesbian and transgender police
officers
by constructing them as other.
In 1999, after the decision of the European Court of Justice in P v S
and Cornwall County Council,[22]
in which it was held that a (male to female) transsexual woman had been
discriminated against contrary to the provisions of the European
Communities
Equal Treatment Directive, the UK Government passed the Sex Discrimination
(Gender Reassignment) Regulations 1999. The Regulations are intended to
prevent discrimination against transgender people, because of their gender
reassignment, both in
pay and treatment in employment and vocational training.
However, in some circumstances the Regulations make provisions, (notably
s 7(2)
b) whereby it may not be unlawful to discriminate on grounds of gender
reassignment, in particular where the job may involve
conducting intimate
searches pursuant to statutory powers (eg the Police and Criminal Evidence
Act 1984).
Supposed to end discrimination in the workplace, in effect
the Regulations, as regards transgender people who may wish to join Police
Services, formalised discrimination in a way that directly contradicts the clear
instruction of the European Court of Justice (ECJ)
in P v S and Cornwall
County Council. The regulations have, in effect, resulted in a loss of many
of the rights which had been won by transgender people through the
decision of
the ECJ.
Advocate-General Tesauro pointed out, in his opinion to the ECJ,
that for the purposes of the Equal Treatment Directive, sex is important
as a
social convention. Discrimination is frequently to do with the social roles of
women rather than their physical characteristics.
Similarly discrimination
suffered by transgender people is linked to moral judgements, which have nothing
to do with their abilities
in the sphere of
employment.[23] The Advocate-General
continued that as the Court has a duty to ensure that the general principles of
Community Law are upheld, and
as these include a respect for certain fundamental
rights, one of which is the elimination of discrimination based on sex as
expressed
in the directive, then the directive must be held to cover changes
from one sex to another as much as it covers whether a person
is discriminated
against because they are a man or
woman.[24]
The Regulations contain, in ss 4 and 5, several new insertions amending s
7 of the SDA (ss 7B(2)(a), (b), (c) and (d)) and s 19 of
the SDA which introduce
new ‘Genuine Occupation Qualifications’ (GOQ’s) relating to
transgender people. Despite
Advocate-General Tesauro’s clear and express
dismissal of the treatment of transgender people as belonging to a “third
sex” these new GOQ’s, without a doubt, intimate that transgender
people are neither male nor female for a period of time
or permanently in those
circumstances where they have to perform intimate physical searches, or seek
employment in a private home.
The decision of the ECJ made it quite clear that
transgender people are not to be regarded as belonging to a third
sex.[25] The exclusion of
transgender people from all “sex-specific” tasks is fundamentally in
breach of EC non-discrimination
legislation as it is, ipso facto, incompatible
with the overall purpose of the Equal Treatment Directive, and the comparative
approach
adopted by the ECJ.
The Sex Discrimination (Gender
Reassignment) Regulations 1999 by the inserted s 7B(2)(a) creates a GOQ
where
(a) the job involves the holder of the job being liable to be called upon to perform intimate physical searches pursuant to statutory powers.
Presumably this is intended to allow police services
not to employ or continue the employment of transgender people. The ambit of
this and s 7B(2)(b) is very broad allowing employers to exclude transgender
people whether before, during or after completion of
gender reassignment
treatment. Further s 7B(2)(b) in effect allows discrimination, by an emanation
of the state, which was specifically
barred by the decision in P v S and
Cornwall County Council.
This section is clearly contrary to EC law
as it stands. It seeks to bar transgender employees from carrying out physical
searches
on either sex, hence treating transgender officers as belonging
to a third sex, a point the Advocate-General to the ECJ was clear to make clear;
transgender people are not a third sex.
No justification of such sex
discrimination on grounds of transgender could be invoked pursuant to Article
2.2 of the Equal Treatment
Directive, as neither being a man nor being a woman
constitutes a GOQ for employment in a profession carrying out intimate searches.
For example in the police services, both men and women become police officers
and they carry out searches. In excluding transgender people from any
employment requiring the carrying out of such searches, the Regulations seek to
justify the
initial discrimination against transgender employees by relying on
the fact of the discrimination itself. In order to justify sex
discrimination
under Article 2.2 of the Equal Treatment Directive, which allows exceptions to
equal treatment in certain circumstances,
however, an objective factor
independent from the discrimination has to be relied upon (other than the
non-recognition of a transgender
person’s change of legal status). Even
presupposing that a justification could be adduced for barring transgender
people from
performing intimate physical searches this would not justify the
exclusion of transgender employees from a sector of employment
(“job”)
altogether (rather than solely from tasks of a sex specific
nature). The mandatory nature of the principle of equal treatment in
EC law
requires strict adherence to the principle of proportionality to ensure that
‘derogations remain within the limits of
what is appropriate for achieving
the aim in view’.[26]
As the case of Johnston v Chief Constable of the RUC established
(this was an early case involving the employment of women as police officers in
Northern Ireland), such reconciliation
may require, inter alia, the
re-allocation of tasks and would not allow the taking into account of financial
or organisational concerns
as material factors. Crucially to the inserted s
7B(2)(a) of the SDA, ‘the article 2(2) exception can only be invoked in
relation
to particular duties not general
activities’.[27]
The
operational requirements of policing, including searching pose some interesting
issues for transgender officers, particularly
s 55 searches under the Police
and Criminal Evidence Act 1984. The question of an officer’s duties is
both one of operational requirements and those which are contained in the
contractual
employment arrangements between an officer and the police service.
Where there are no standard practices, the details are matters
for police
managers to decide according to their resources and objectives allowing for
local practice and history of the particular
service and the nature of the
locality policed.
The duties of the police are very diverse, and it is
clear that not all police constables perform, or are expected to perform,
exactly
the same duties or all possible duties. Police services are made up of
different types of people in order to relate in different
ways, and to different
issues, in the community. Different officers have different strengths. The idea
that they should be homogenic
is not now considered to be desirable – note
the concern about racism in the police and the need to attract recruits who can
reflect different backgrounds and life experiences within, and to, the police,
to ensure cultural diversity. It is also increasingly
recognised within the
police service itself and generally that the public interest requires the same
approach to be adopted in relation
to sexual orientation. Our police services
are in general and increasingly required to be dynamic institutions adapting and
responding
to changing legislative, operational, social and cultural realities.
Police powers however are different from police duties, in that whereas
a duty might be considered part of the contractual obligations
of a police
officer, a power enables an officer to fulfil those duties. There are three
relevant police powers in relation to searching:
The power to stop and
search under the Police and Criminal Evidence Act 1984 (PACE) s1. Code A
para 3.5 which requires that any search involving more than the removal of outer
clothing must be by an officer
of the same sex and must not without consent be
in the presence of an officer of the opposite sex; searches of a detained person
at a police station as part of the “logging in” process under PACE s
54 must not involve an intimate search but must
be conducted by a constable of
the same sex ; and, under PACE s 55 persons of the opposite sex may not carry
out intimate searches.
There is also a requirement in Code A para 3.1
that ‘every reasonable effort must be made to reduce to a minimum
the embarrassment that a person being searched may experience’.
It
is these police powers which have been used in effect to attempt the avoidance
of employing transsexual police officers, using
the “same sex”
requirements to problematise the issue.
Similar provisions apply in
Australia, however they often have a “get-out” clause. For example,
the Australian Capital
Territory in s 54 of the Crimes (Forensic Procedures)
Act 2000 only requires that intimate searches or searches involving the
removal of clothing be conducted by an officer of the same sex as
the suspect,
‘if practicable’.
These provisions govern the powers to stop and search by patrolling
police officers and arise only where an officer has reasonable
grounds for
suspecting the person is in possession of certain identified prohibited
articles. It is the Code and not the Act that
specifies the precise manner in
which the search is to be carried out. Section 67, ss 10 and 11 provide that a
breach of
the code requirement does not, of itself, amount to a crime or civil
offence. Such breach may be used, however, to show that any
of the well
established criminal or civil offences relating to the individual rights over
his person and property have been infringed,
for example assault or
trespass.
Article 3.5 of the Code restricts searches in public to
‘superficial examination of outer clothing’. Any officer of either
sex carries out such a search on suspects. More thorough searches involving
removal of the ‘outer jacket, gloves, headgear
or footwear’ should
be conducted out of the ‘public view, for example in the police van or at
the station’. Again
any officer of either sex can carry out such a search
on suspects. Such searches, ie non-sex specific searches, constitute the
overwhelming
majority of searches carried out by patrolling officers.
It
is only where the officer considers it necessary to remove more than an outer
coat, jacket, gloves or footwear that there is a
requirement that the officer be
of the same sex and may not be in the presence of anyone of the opposite sex
without consent. This
again should be conducted out of public view the example
being given of the police van or the police station.
Section 54 searches are made as part of the “logging in” when
a person is detained at a police station. They must be made
at the police
station and a constable of the same sex must conduct them.
PACE s 55 searches are the only searches that could truly be described as
intimate searches, ie those involving the searching of intimate
areas of the
body. These searches must be carried out by a person of the same sex. However, a
‘suitably qualified person other
than a police officer’ must carry
out intimate searches unless an officer of the rank of superintendent or above
authorises
otherwise. A suitably qualified person is a registered doctor or
nurse, and such a person must carry out all searches for drugs.
It is only in
the case of harmful articles (ie dangerous weapons) that a constable may carry
out the search, and then only if it
is not practicable for a suitably qualified
person to perform the search. Para 3.1 of the Code states that ‘every
reasonable
effort must be made to reduce to a minimum the embarrassment that a
person being searched may experience’.
The available Home Office
statistics[28] from 1996, show that
during that year there were 814,500 searches of persons or vehicles using police
powers under s1 of PACE. The
statistics do not record the gender of those who
were searched, nor of the officers who searched suspects. Neither are the
statistics
broken down into the categories of superficial searches, which may be
performed by any officer, or more thorough searches, including
the removal of
outer clothing which are required under PACE to be performed by someone of the
same sex as the suspect.
Thus with around 125,000 “front
line” police officers, who are primarily police constables, we can say
that on average
each officer would perform an average of 6.5 searches per annum
under PACE s 1. However, very few of these would be “sex specific”
searches and even where sex specific searches are called for, as these must take
place out of the public view, they will take place
in a police van or station
where there are likely to be several officers available to perform the search.
As regards the gender of police officers, 14.6% of officers are
women.[29] However if we extrapolate
from the prison population figures, it must sensibly be considered the case that
the majority of suspects
are undoubtedly male. In 1997 there were 46,370
sentenced males in England and Wales as compared to 2,080 sentenced
females.[30] This means that only
4.3% of those in prison were female. If a similar proportion of those searched
in 1996 were female then of
the 814,500 searches under PACE s 1, only around
35,000 of those searches would be of women. This means that there is a general
disproportion
of same gender officers to suspects, and we must assume that
provisions already exist in the day-to-day management of a police service
to
ensure that appropriate officers are available if more thorough s 1 searches are
required.
According to the Home Office
statistics,[31] from 1996, there
were 14,447 s 1 searches carried out in the West Yorkshire region. The West
Yorkshire police service had a total
police workforce of 5,142 as of March
31st 1996.[32] Of these
4,754 were of the rank of sergeant or constable, which are those officers most
likely to be involved in PACE s 1 searches.
As such, in West Yorkshire, each
front line officer averages 3 PACE s 1 searches per annum.
708 officers
of that rank were women, 14.8% of the service. If we estimate that of the 14,447
s 1 searches, only 621 were likely to
be of women, then in fact each female
officer is not likely to reach an average of 1 search per annum. Taken further,
if the number
of s 1 searches which require a same sex officer are a much
smaller number than the total number of s 1 searches, then a police service
such
as the West Yorkshire Police service must already be making day to day
operational adjustments to ensure that an officer of
the same gender is
available. There is already likely to be a requirement for proportionally (and
numerically) more of the thorough
type of search of male suspects, than there
are proportionally male officers available.
It is therefore apparent that
in many circumstances where a more thorough PACE s 1 search is required, that
because a disproportionate
number of suspects are male (as opposed to the
proportion of police officers who are male), female officers are disqualified
from
undertaking these searches, and hence other arrangements must be made.
Generally as these searches have to be undertaken out of the
public view, there
are several police officers present either in a police van or at a police
station, and these arrangements are
quite easily made.
A study by Tom Bucke and David
Brown[33] showed that only 3% of
detained suspects were strip-searched, the majority being searched in a
non-intrusive manner. In only 3% of
these cases according to Bucke and Brown,
was a nurse or doctor present. However, it would be the case that all of these
searches
would take place in a police station, under PACE s 54.
Given
that searches under s 54 take place in the police station, there are likely to
be several officers available who could carry
out the search. Again there would
be a higher proportion of men detained and searched under s 54, as opposed to a
smaller proportion
of male officers available and visa versa for women and
female police officers.
Intimate searches are governed by PACE s 55. These are searches involving
a physical search of body orifices. They may only be carried
out if there are
reasonable grounds to believe a suspect may have concealed on him or her
something which could be used to cause
physical injury, or in the case of
suspected couriers or dealers only, a Class A drug. All PACE s 55 searches must
be carried out
in a specified institution. A ‘suitably qualified person
other than a police officer’ must carry out intimate searches
unless an
officer of the rank of superintendent or above authorises otherwise. A suitably
qualified person is a registered doctor
or nurse, and such a person must carry
out all searches for drugs. In the case of harmful articles, a constable
(authorised by an
officer of the rank of superintendent or above) may carry out
the search, if it is not practicable for a suitably qualified person
to perform
the search.
According to the Home Office, in
1996,[34] only 132 PACE s 55
intimate searches were carried out, throughout England and Wales, of which only
four were carried out by a police
officer alone. Another 30 were performed in
the presence of a suitably qualified person. This means that 98 (74%) were
carried out
by a doctor or nurse rather than a police officer. The statistics
for the West Yorkshire Police Service region in 1996 record only
five such
searches being carried out in, and only one of these was carried out by a police
constable. These figures are consistent
with the Bucke and Brown study mentioned
above.[35]
The day to day
operational implications for a police service which employs a transgender person
as an officer, such as they relate
to the requirements of PACE and its Codes,
are minimal. Police services already have to make operational allowances for the
disproportionate
ratio of male and female officers to suspects. It is highly
likely that many female police officers will rarely, if ever, have the
experience of being called upon to search suspects when the sex of the officer
is relevant to the search which is taking place. Searches
are a limited part of
a constable’s duties, and the requirements for strip or intimate searches
are such that they can be easily
accommodated to operational
requirements.
The conclusion must be that there is a possible
“Francovich” action,[36]
whereby an individual can sue the state for damages if government has not met
its obligations under European Community law, and the
individual has suffered
loss as a consequence. This could be brought by a serving police officer who is
dismissed, or a transgender
person who is not appointed to serve because of this
section.
The only solution would be to remove s 7B(2)(a) completely from
the regulations. However, in the meantime, until decided upon by the
ECJ, for
the protection of transgender people who do serve in police services or similar
professions there could be included in any
supplementary guide to the
Regulations a statement such as:
Where a transsexual person might incur a civil or criminal liability for assault, if they perform a search of an intimate nature, which statutory powers require to be performed by a person of the same sex as that of the person being searched, then it is the transsexual person’s responsibility to bring the possible legal anomaly of their status to their employer. If they do not do so, then the employer will incur no vicarious liability as regards any intimate search that the employee carries out.
As said earlier, in
Australia, the “searching” provisions provide much more flexibility
than those contained in PACE,
so there appears no reason whatsoever not to
employ suitably qualified transsexual and transgender people to be serving
police officers.
However, before Australians could hope to see real diversity
within their police, they must first encourage and enable people from
minority
groups such as the transgender community to apply. Applications can only turn
into real jobs if there is then sufficient
flexibility in the recruitment
process to ensure that arbitrary and irrelevant features of the individual are
not a bar. The next
section of this paper looks at the recruitment literature
and criteria of London’s Metropolitan Police Force and how this could
be
altered, without altering its substance, to encourage the application and
appointment of transsexual people.
In order to maintain law and order the police must acquire the consent of
the public.[37] In pursuit of this,
the service requires the trust and confidence of the community in which it
operates. Section 8 of the Police Act 1996 requires police authorities
annually to set out what consultation has taken place between each force and its
local community. Thus,
the service has a legal requirement obligating it to
interact with the diverse people it
serves.[38]
Unless dialogue
translates into the context of employment policy, so that transgender people and
others are able to police their communities
as Constables in the service, the
social perspectives and understanding of transgender people (and other diverse
people) will never
be fully
realised.[39] Although in a racial
context, the views of Inspector Paul Wilson giving evidence to the Stephen
Lawrence Inquiry are just as applicable
to transgender people. He pointed to the
fact that:
" ...predominantly white officers only meet members of the black community in confrontational situations, (consequently) ...they tend to stereotype black people in general. This can lead to all sorts of negative views and assumptions about black people."[40]
Thus,
dialogue alone will not shift police attitudes to transgender people. It is an
employment issue, without which negative stereotyping
and institutional
transphobia will continue to thrive. As Her Majesty's Inspectorate points
out:
" ... there is a direct and vital link between performance and the way an organisation obtains the best people and develops the knowledge, skills and attitudes of those newcomers and of existing staff."[41]
In seeking to examine the barriers that exist to the recruitment of
transgender people, one of the authors of this paper was asked
to advise the
Metropolitan Police Service. The report was to comment on the limitations of the
“searching” exception,
and advise on how dual, triple and multiple
discrimination impacted on the MPS's ability to attract new
recruits.[42] Hence it was
considered that any policy that discriminated against transgender people was
also a barrier to the recruitment of male,
female, ethnic, gay and lesbian
officers also.[43]
In
recounting one example, it was observed that, while applicants to the service
were told there were no set qualifications needed
to become a police
officer,[44] they were nevertheless
asked to provide a list of all qualifications or examinations taken, or due to
be taken.[45]
Since many
qualifications are gender specific and require dates in order to be verified,
this requirement may not simply facilitate
age or sex discrimination against
transgender people, but also disproportionately affect all minority people who,
through decades
of social and economic exclusion, may have been afforded the
least opportunity of access to education and work related training.
The advice, in this respect, was that application forms should focus on
achievements rather than qualifications. These would not
only be less reliant
on historical gender markers and chronological details, but additionally, would
embrace a broader area of experience
more relevant to members of those diverse
groups the service sought to
represent.[46]
Generally, on examination of a range of recruitment literature, it was
apparent that no common standard existed for appointment to
the office of
Constable. Candidates were selected according to the range of criteria
determined individually by forces, services
or constabularies. Thus it was
possible, (for example), for transgender people to serve in the West Mercia
Constabulary,[47] whilst a ban
existed on recruitment in West
Yorkshire.[48] The prospect of
appointment was therefore a lottery, devised not by matching personal skills,
attributes and abilities to the requirements
of the job, but by the differing
criteria of a particular force in a postcode area. This has been further
highlighted by recent newspaper
reporting in the UK regarding the employment of
a male to female transgender person by the North Yorkshire Police. Sergeant
Nicola
Lamb appeared at a press conference with the Chief Constable of North
Yorkshire who announced the existence, in his force, of two
transgender police
officers.[49] However, whilst North
Yorkshire Police is ‘celebrating gender diversity’ in its force, its
neighbouring force West Yorkshire
is currently appealing at an Employment Appeal
Tribunal, the decision in A v Chief Constable West Yorkshire
Police.[50]
Similarly,
the report to the MPS considered the application process extremely bureaucratic,
inflexible and disadvantageous to a service
that sought to represent the diverse
community. Information sought by the application process was duplicated on
numerous occasions,
making forms and the medical questionnaires superfluous,
time consuming and difficult to complete. It is believed such a process
served
only to de-motivate those under-represented from making application.
[51] This issue is one that was
recognised by Her Majesty's Inspectorate of Constabulary, who pointed out that
‘Officers who had
recently joined the MPS, and were still in their
probationary period found recruitment to be a slow bureaucratic
process’.[52]
It was
equally apparent that some aspects of the application forms and medical
questionnaires were unlawfully serving as a barrier
to the recruitment of
diverse groups. The medical criteria applied, specifically sought to expand the
definition of “disability”
apparently facilitating indirect
discrimination. The MPS thus tended to indirectly favour young, physically fit
applicants possessing
a minimum time frame of legal responsibility and life
experience.[53] Arguably, the
service therefore attempted to construct the society it sought to reflect rather
than the society that actually exists.
This was despite HMIC's belief
that:
Positive and sensitive policing has a particular role in the quality of life of all communities. It is not, however, the sole determinant of quality of life. The police service serves society: it does not construct it.[54]
It is
considered that the police service should assess (in terms of its 21st century
‘intelligence-led and technology-based’
fair and responsive
policing role) whether it is ineffectual to exclude any group of people from
serving, whether of ethnic background, disabled, gay,
lesbian, trans, - or those
who self- identify with a combination of those labels. As Her Majesty's
Inspectorate pointed out in the
preface of its publication 'Developing Diversity
in the Police Service':
In today's diverse society, policing calls for a
wider range of skills and abilities than ever before. All police forces need to
use
and develop their existing staff - police officers, civilian colleagues and
special constables alike - and to attract and nurture
talent from within the
communities they serve. Striving for real equality of opportunity within the
Service will make efficient use
of our human resources and demonstrate our
commitment to fair and responsive
policing.[55]
The employment of transgender people in the police service is important
for two reasons, firstly, their employment rights are recognised
in law, and
secondly, if there is supposed to be a police service, which represents the
diverse community it serves, then it is essential
to have transgender police
officers. This paper has attempted to address the complexities that arise in the
context of policing for
trans people who either apply to the police service for
employment, or who have been dismissed as a consequence of their gender
reassignment.
Many of the problems faced by trans people in the field of
employment generally, are gradually being addressed through use of the
ECJ and
ECHR, and are becoming incorporated into national law in the UK. The problem
will remain for policing as long as the legal
status of trans people, as fixed
by their biologically determined sex recorded at birth, continues to be the
argument used to prevent
trans people acting as police officers. The legal sex
of a person is rigidly defined in law as biological sex, and this also poses
problems for trans people in other aspects of their lives. The ECHR in the cases
of Goodwin & I v United Kingdom
Government,[56] has just held,
as this paper is being completed, that the refusal to change the birth
certificates of transsexual people is a breach
of Article 12 of the European
Convention on Human Rights. However, should there be a change in the law, which
allows for the alteration
of the birth certificate to record the sex of a person
following gender reassignment, the problems for policing may not immediately
vanish.
One of the problems that is likely to remain in policing for
transgender officers relates to the continuing existence of a police
organisational culture in which those who cannot ascribe to the white
hetero-normative culture will remain part of the “out-group”.
Changing the culture of the police organisation is as difficult as changing the
law to recognise the new status of a trans person.
In order that trans people
can be accepted into policing it is necessary for the police service to
demonstrate a commitment to their
employment. As this paper demonstrates there
seems to be an inequitable situation in relation to the recruitment of trans
people
into the police service, that is, the post-code lottery. What appears to
be the situation is that some police force areas are more
committed to the
recruitment of trans people than others and where they are it seems it is
possible to overcome the problems in relation
to searches.
The average
number of intimate body searches conducted by police officers on routine duty is
in reality, a very small part of their
overall role. There are many aspects of
the police role that require general “people” skills rather than
anything else.
The argument that policing is an unsuitable job for a woman,
based on the need for physical strength, is now a dead argument. There
are still
existing barriers to women’s progression in policing but these are linked
to police culture rather than the argument
that women are somehow biologically
incapable of doing the job. In order that trans people be accepted into policing
there needs
to be a change to police organizational culture and this will only
occur if there is a commitment to change at the senior level.
The
starting point for instigating change that will allow for the recruitment of
trans officers is a clear statement in the equal
opportunities policy of each
police service area. This alone is not enough, as this paper has highlighted,
there are some of the
barriers to the recruitment of trans officers operating in
the recruitment process. A reassessment of the qualities required to be
a police
officer and a focus on achievements of applicants would be a step forward in the
recruitment of trans officers. If there
is a genuine commitment to developing
diversity in the police service, and providing a police service that can police
a diverse community,
then the issues raised by this paper need to be
addressed.
[*] Principal Lecturer, The School
of Law, Manchester Metropolitan University,
c.little@mmu.ac.uk
.
[**] Research Assistant,
Manchester Metropolitan
University.
[***] Reader in Law,
The School of Law, Manchester Metropolitan University
s.t.whittle@ntlworld.com.
[1]
(1996) (IT Case No. 08964/96)
(unreported).
[2] (1999) (IT Case
No. 1802020/98) (unreported).
[3]
(1999) (IT Case No. 2901131/98)
(unreported).
[4] (1996) (IT Case
No. 08964/96) (unreported).
[5]
Ibid 9, 10.
[6] P v S and
Cornwall County Council ECJ [1996] IRLR
347.
[7] Home Office Circular No
87/1989 ‘Equal Opportunities in the Police
Service’.
[8] Ibid para
2.
[9] Her Majesty’s
Inspectorate of Constabulary, Developing Diversity in the Police Service:
Equal Opportunities Thematic Inspection Report
(1995).
[10] Ibid 9,
10.
[11] Sir W Macpherson,
Report on the Inquiry into the Stephen Lawrence Murder (London: Home
Office, 1999).
[12] S Jones,
Policewomen and Equality: Formal Policy v Informal Practice (London:
Macmillan Press Ltd, 1986); F Heidensohn, Women in Control? The Role of Women
in Law Enforcement (Oxford: Clarendon Press, 1992); J Brown, ‘Aspects
of Discriminatory Treatment of Women Police Officers Serving in Forces in
England & Wales’ British Journal of Criminology (Spring 1998)
Vol 38 No 2; J Brown & F Heidensohn, Gender and Policing: Comparative
Perspectives (London: Macmillan Press Ltd,
2000).
[13] M Burke, Coming
Out of the Blue (London: Cassell,
1993).
[14] F Heidensohn,
Women in Control? The Role of Women in Law Enforcement (Oxford:
Clarendon Press, 1992)..
[15] D
J Bell ‘Policewomen: Myths and Reality’ (1982) Vol 10 No 1
Journal of Police Science & Administration; J Balkin ‘Why
Policemen Don’t Like Policewomen’ (1988) Vol 16 No 1 Journal of
Police Science & Administration.
[16] D Smith and J Gray,
Police and People of London: the PSI Report (Aldershot: Gower, 1985); M
Young, An Inside Job (Oxford: Clarendon Press,
1991).
[17] J Hunt, ‘The
Logic of Sexism Among Police’ (1990) Vol 1(2) Women and Criminal
Justice 11.
[18] N Fielding,
‘Cop Canteen Culture’ in T Newburn and E A Stanko (eds), Just
Boys Doing Business? Men, Masculinities and Crime (London: Routledge,
1994).
[19] M Alvesson and Y D
Billing, Understanding Gender and Organisations (London: Sage
Publications, 1997) 97.
[20] J
Hunt, ‘The Logic of Sexism Among Police’ (1990) Vol 1(2) Women
and Criminal Justice 11; M Young, An Inside Job (Oxford: Clarendon
Press, 1991); P Levine, ‘Walking the Streets in a Way No Decent Woman
Should: Women Police in World War
One’ (March 1994) Journal of Modern
History 66.
[21] S E Martin,
Breaking And Entering: Policewomen on Patrol (Berkley: University of
California Press Ltd, 1980) 208.
[22] Above n 6.
[23] Advocate-General’s Opinion in P v S and Cornwall County
Council ECJ [1996] IRLR 347, para
20.
[24] Ibid para
14.
[25] Ibid para
25.
[26] Johnston v Chief
Constable of the RUC, Case 222/84 [1987] ECR 1651, para
38.
[27] Ibid.
[28] Home Office
Research and Statistics Directorate Home Office Statistical Bulletin, Iss
27/97, (4 December 1997).
[29] Home Office, Police: Serving the Community, (1997)
4.
[30] P White, The Prison
Population in 1997: A Statistical Review, Home Office Research and
Statistics Directorate, Research Findings No
76.
[31] Above n
26.
[32] West Yorkshire Police,
‘Strength and Workforce Distribution’,
11/05/98.
[33] T Bucke and D
Brown, In Police Custody: Police Powers and Suspects Rights under the Revised
PACE codes of Practice Home Office Research and Statistics Directorate, Home
Office Study 174, 7.
[34] Above
n 26, Table 7.
[35] Above n 31,
9.
[36] Francovich v Italian
Government ECR I-5357 [1993] 2 CMLR
66.
[37] Her Majesty’s
Inspectorate of Constabulary, ‘Policing London 'winning consent'’,
(2000) London: Home Office.
[38]
Home Office, ‘Winning the race - embracing diversity’, (2001)
London: Home Office Communication
Directorate.
[39] Her
Majesty’s Inspectorate of Constabulary, ‘Police integrity’
(1999) London: Home Office.
[40] Sir William McPherson, ‘The Stephen Lawrence Inquiry’ (1999)
London: The Stationery Office.
[41] Her Majesty’s Inspectorate of Constabulary, ‘Developing
diversity in the police service’ (1995) London: Home
Office.
[42] P Stephens,
‘Report to the Metropolitan Police Service Gender Project - assessing the
impact of the MPS application form on
gender diversity in the service’
(2001) (unpublished).
[43] Ibid
1.2.2.
[44] Metropolitan Police
Service (2000), ‘Application pack - Application form Guidance Notes’
London: Metropolitan Police
Service, s
2.
[45] Metropolitan Police
Service, ‘Application for appointment as Police Constable’ (2000)
London: Metropolitan Police Service,
s
2.
[46] Above n 39,
2.3.2.3.
[47] See West Mercia
Constabulary, ‘Managing diversity policy statement’ (2001)
<http://www.westmercia.police.uk/local.htm>
.
[48] See A v West Yorkshire Police (1999) (Case No. 1802020/98)
(unreported).
[49] The
Guardian, 21 July 2001.
[50] Above n 44.
[51] Above n
40, 2.1.4 .
[52] Her
Majesty’s Inspectorate of Constabulary, ‘Policing London 'winning
consent'’ (2000) London: Home Office
5.15.
[53] Above n 40,
2.1.4.
[54] Her Majesty’s
Inspectorate of Constabulary, ‘Winning the race - embracing
diversity’ (2001) London: Home Office
Communication Directorate
1.7.
[55] Her Majesty’s
Inspectorate of Constabulary, ‘Developing diversity in the Police
Service’ (1995) London: Home Office,
Preface.
[56] Christine
Goodwin v UK Government, application No. 28957/95 (1995) ECHR; I v UK
Government, application No. 25608/94 (1994) ECHR.
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