Considerations for Searching a Trans Person

In Forrester v. Peel (Regional Municipality) Police Services Board et al, the Human Rights Tribunal of Ontario established guidelines for strip-searching trans detainees.  In the absence of existing policies, similar protocols may benefit the community and the police.

A trans detainee should be offered one of three options for a strip-search:

  • a) male officer(s) only,
  • b) female officer(s) only, or
  • c) a split search.

Where an officer has serious reason to doubt a detainee’s self-identification as trans, absent any objective criteria that would cause the officer to believe that this is true, the officer may ask the detainee prescribed questions, in private, to verify the detainee’s status.

The permitted questions are as follows:

  • (a) What name appears on your identity documents?
  • (b) What is your gender identity?
  • (c) Have you disclosed your gender identity to your friends and/or family?
  • (d) What steps are you taking to live full-time in a manner consistent with your gender identity? How can you demonstrate that you are living full-time in your gender identity?
  • (e) Have you sought or are you seeking medical or professional guidance from a qualified professional? If so, can you give the names(s) of these people and their professional designations?
  • (f) What medical steps, if any, have you taken to help your body match your gender identity?

If the detainee becomes a security risk, and the officer is apprehensive of an emergency, then whichever officers are present at the time are permitted to deal with this on an exceptional basis, and may take whatever steps necessary to protect themselves and the other detainees, and to maintain order, just as they would for any other detainee.  An exceptional circumstance must be documented by the Officer-in-Charge of the Division.

Considerations Regarding the Safe Lodging of a Trans Detainee

Because of their gender expression or presentation, trans detainees may be subject to abuse or harassment by other detainees in general population.  For this reason, some police facilities have responded by placing trans detainees in isolated cells, away from either the men’s or the women’s cell blocks.  As a general practice, this can be seen as a form of discrimination, or even negatively impact the detainee’s mental and physical health and increase the risk of self-harm, despite isolation being the safest option in some cases. Currently, Canada does not have legislation regulating police detention of trans individuals.  As such, the following may be considered:

  1. What facility would provide the safest environment for the trans detainee?  Is it safer to place them in a male facility or a female facility?  Which unit in a particular facility is safest?
  2. What is the detainee’s general appearance, i.e What gender does that detainee live and identify as?
  3. The last consideration is physiology, e.g. Has the detainee had genital surgery?

Some trans people have been prescribed hormones as a critical part of their physical transition.  Requests to continue this treatment should be accommodated in accordance with existing police policies.