Over the last two years a fierce debate has erupted about how sex and gender identity should be defined in law and policy, or what it means to be a man or a woman.
The main point of tension is between a view of transgender rights as based on a person’s beliefs about their gender identity and women’s rights as based on their biological sex.
From a trans rights perspective the key line of argument is that a person who identifies with a gender that differs to their sex should be treated in line with the gender with which they identify, with access to female or male single-sex spaces and services respectively (although there are other views within the trans population). The fundamental argument underpinning the sex-based rights perspective is that the physical, economic and social consequences of being born female are so significant that women require specific protections in law and policy for reasons of safety, privacy and dignity, including single-sex services and spaces.
At the time of writing these issues are playing out across a range of policy fields, including education, health and criminal justice. Focusing on policing, this blog looks at how beliefs about gender identity have permeated some police force policies, and what this might mean for female officers and staff. It also considers how police forces are responding to these issues in a public capacity, the implications for public trust and confidence, and how forces might best negotiate this difficult territory and find the middle ground.
Policies and procedures
Over the last decade, police forces have introduced a range of policies that prioritise gender identity over biological sex. Some forces, including the Metropolitan Police Service (MPS record a person’s self-defined gender identity instead of their sex (see here for the data and equalities implications). A further six forces recently disclosed that if someone is arrested for or convicted of rape, the official record will state the gender they chose to identify themselves as. A detainee’s self-identified gender also takes precedence in some search policies.
The publication of the National Police Chief’s Council (NPCC) Trans Guidance for the Policing Sector, developed in conjunction with Stonewall, sets the tone for this shift. Drawing on a particular set of beliefs, the guidance understands gender identity to be innate and that a person’s sex is ‘assigned at birth’, instead of observed and recorded. The glossary further describes those whose gender identity does not match their assigned sex as ‘cis’. (Cisgender’ is used to refer to a person who is believed to have a sense of gender identity which aligns with their biological sex. The term is contested and rejected by those who critique the underpinning assumption of innate gender identity).
The NPCC guidance is intended to apply to all those under the broadly drawn ‘trans umbrella’, regardless of whether they have transitioned or intend to transition. Extending beyond the legally protected characteristic of ‘gender reassignment’ under the Equality Act 2010, this includes (but is not limited to) those who describe themselves as: ‘transgender, transsexual, gender-queer (GQ), gender-ﬂuid, non-binary, gendervariant, cross- dresser, genderless, agender, non-gendered, third gender, two-spirit, bi-gender, trans man, trans woman, trans masculine, trans feminine and neutrois.’
The guidance states: ‘Individuals will likely use the facilities that align with their gender identity. At different points in their journey, they may however choose to use gender neutral facilities or the accessible facilities if gender neutral ones are unavailable.’
There is however no mention of the conflicts that this may raise, or the expectations placed on other groups. The report does not, for instance, acknowledge that some female officers and staff might be uncomfortable or feel vulnerable with male-bodied people using the same facilities and spaces (and vice-versa), or that some people might be reluctant to express their concerns about such arrangements, given the possibility of being seen as transphobic or bigoted. Nor does it mention that those with the protected characteristic of faith may require single-sex spaces. There is also nothing to suggest that consideration has been given to the possibility that weakening safeguards in this way might be open to abuse by some individuals, irrespective of gender identity.
Self-identified gender also takes precedence in search policies. The MPS advises: ‘A detainee should be searched according to the gender they present as… If the detainee presents as a female, they should be searched by a female officer. If there is any doubt over the gender of the detainee, they should be asked which gender they wish to be treated as.’ How this sits with the privacy and dignity of female officers is not clear. Police Scotland custody guidelines recognise that officers may be uncomfortable searching a trans person of the opposite sex, and state that in such circumstances the Custody Supervisor should be informed, although what happens next is not specified. This also presupposes that officers will feel sufficiently confident to raise any concerns they may have. Given the heated climate around the gender identity debate, how some forces have framed these issues (see below) as well as the rank structure, this seems questionable at best.
While badged as inclusive, it is arguable that such policies have let down female officers and staff, whose interests have been left behind. In a male-dominated profession, where equality between the sexes is still a long way off, this feels like a serious shortcoming.
How the police – and media – react
Societal reaction theory argues that the way in which agencies, including the police and the media, react (or overreact) to events can frame public debate and amplify behaviours. As Stan Cohen’s (1968) seminal study of mods and rockers showed, media responses in particular can instigate moral panics and increase divisions and tensions between different groups.
Taking no more than a brief overview, it seems reasonable to suggest that similar dynamics are playing out in some police force responses to incidents related to the gender identity debate. In one recent case, a police force put out a call for witnesses following a spate of stickering in a town centre. Stating that the stickers contained ‘transphobic comments’, the force investigated the incidents as public order offences. Reiterating the ‘transphobic’ label, local press reports stated that the stickers variously stated the dictionary definition of a woman as an ‘adult human female’ or that ‘women do not have penises’ (the context here is the debate on how sex should be defined in law and policy). Instead of de-escalating the situation, the police reaction and media response amplified it, resulting in national media coverage and a social media backlash. In another case, a man was contacted by an officer after retweeting a limerick that was recorded as a transgender ‘hate incident’ (the officer also cited a list of thirty ‘potentially offensive tweets’, but did not identify these). As well as prompting national media coverage, the police response led to a campaign against the criminalisation of free speech. As a result, a judicial review has now been granted to challenge the National College of Policing’s guidance on ‘hate incidents’ against transgender people.
Fairness and trust
How then should police forces respond to these complex and sensitive issues? Within recent years, ideas about fairness and trust have gained increasing traction within policing. A substantial body of evidence based on procedural justice theory shows that when people perceive the police to be fair, neutral and respectful that they are significantly more likely to comply with the law and to cooperate with officers, for instance to report crimes or act as witnesses. Fair treatment generates trust and a sense of shared values and underpins the legitimacy of the police.
Applying these principles to the gender identity debate, how police forces respond to these issues is likely to have ramifications for public trust in policing. If police forces are perceived to be aligning with or advocating for a particular position, they risk losing public trust – especially given the current direction in some forces, that of women who do not subscribe to a belief in innate gender identity. It follows that police forces need to be neutral, steer clear of politicised or contested language, and work to defuse situations that involve groups with conflicting views. For the same reason, managers need to be aware that campaignswhich may feel inclusive to some groups may feel exclusionary to others.
Fairness and trust principles also apply within organisations, for example to the actions of senior managers and workplace policies. Organisations that are perceived to operate in a fair, open and consistent way are likely to engender a sense of shared organisational identity and to increase staff commitment.
This means that managers need to balance carefully the rights and interests of different groups within the workplace. Properly adhering to existing equality legislation should ensure that officers and staff, whether trans or not, do not face discrimination. Under the Public Sector Equality Duty (PSED) police forces are legally required to assess how their policies impact on all nine protected characteristics. The PSED also requires forces to foster good relationships between those with different protected characteristics.
Clearly, organisations should be trans inclusive and non-discriminatory. This does not, however, mean that forces must replace single-sex facilities and policies (as based on physical sex) with those based on self-defined gender identity. There may also be a risk of indirect discrimination if facilities that involve undressing are not provided in a way that allows female officers and staff to have privacy from males (and vice versa).
In practice, balancing rights within the workplace may mean providing additional unisex or single occupancy facilities for transitioning or non-binary staff, while retaining single-sex facilities. The Equality Act 2010 allows organisations to provide single-sex services if it is a proportionate means of achieving a legitimate aim, such as privacy and safety. A person with the characteristic of gender reassignment might be excluded from the facilities of the sex they identify with, even where they have changed their legal sex by means of a Gender Recognition Certificate, again where it is a proportionate means of serving a legitimate aim. Policies also need to be clear-cut. Line managers should not be placed in the awkward position of making individual assessments for trans officers or staff.
Finding the middle ground
Finding ways to talk about the gender identity debate is not easy. Some forces are struggling to say or do the right thing in what feels like a semantic minefield, at times with explosive results.
As suggested above, the introduction of policies based on beliefs about gender identity is not unique to policing. Many organisations have introduced policies that replace sex with gender identity, instead of balancing the two, often without wider consultation or proper scrutiny. Nonetheless, the unique status of the police as state officials with powers of arrest lends a significance to how the law is interpreted that cannot be overstated.
With no indication that the gender identity debate is cooling down, police forces need to tread more carefully, both publicly and within the workplace. Senior managers, who are predominantly male, need to be aware that many women are scared about voicing their concerns about the erosion of single-sex spaces and services, for fear of being labelled transphobic. This fear is evident across a range of professional sectors, including my own (academia), and there is no reason why this should not extend to policing. It should also be noted that women have been threatened (myself and colleagues included), assaulted and, in some sectors, lost their jobs for speaking out on this issue (see here and here).
To find the middle ground, police forces need to adhere to the Public Sector Equality Duty and make proper use of institutional safeguards such as Equality Impact Assessments. In practice, this will involve consulting on policies much more widely, that is, beyond LGBT representatives, to include representatives from all affected groups. Put another way, managers need to recognise that both sex and gender identity may be relevant to people’s lives, and to factor both into policy-making decisions. In this way, it should be possible to balance fairly the interests of everyone, in the least discriminatory way possible.
First published by Policing Insight (subscription)
Images via Wikimedia Commons CC SA 2.5/CC BY-SA 2.0 (pride)