R (Sex Matters) v National Police Chiefs’ Council (1) Chief Constable of British Transport Police (2 [2026] EWHC 1954 (Admin)
Where it is necessary to strip search a detainee, the Police and Criminal Evidence Act 1984 (‘PACE’) requires the detainee and officer to be of the same sex. Following the Supreme Court’s decision in For Women Scotland v Scottish Ministers, the legislative definition of ‘sex’ in the Equality Act (and arguably other legislation) is that of biological sex. What of a situation where a detainee does not recognise their biological sex?
Such was the question that the National Police Chiefs’ Council (NPCC) sought to grapple with their guidance document issued in May 2025, which British Transport Police incorporated into their own guidance document dated 30 June 2025 which the High Count (Linden J) has now confirmed to be lawful.
The guidance provides that where a transgender or non-binary detainee asks to be searched by an officer matching their acquired legal sex rather than their biological sex, forces should take reasonable steps to accommodate that request where:
A statutory power to undertake that strip search exists.
The detainee has provided their express written consent.
The searching constable has provided their express written consent.
A senior officer has authorised a different sex search.
Sex Matters challenged the guidance on the grounds that PACE provides a complete statutory framework for strip searches in police custody, and that any searches not undertaken in accordance with that guidance was unlawful.
The NPCC and BTP opposed the challenge, making four core propositions that were each accepted by the court.
At common law, a search carried out without lawful authority or consent constitutes a prima facie trespass or assault. However, genuine consent is a defence to civil battery or criminal assault.
Provided they have legal capacity, a person in custody remains capable of consenting to a search. Whether that consent is free and genuine in a custody setting is a question of fact to be determined on a case-by-case basis. The fact of the detainee being in custody does not prevent them from being able to consent, as recognised elsewhere in PACE.
A police constable on duty retains the same rights and freedoms as ordinary citizens, unless expressly stated otherwise in statute. This includes the ability to participate in consensual arrangements with other persons with legal capacity.
Section 53 PACE abolished any common law power for constables to search an individual under compulsion. It did not, however, extinguish the ability for constables to search an individual with their consent. Where Parliament intends to remove principles of common law consent, it must expressly state so in statute.
Practical Implications
Many forces have already adopted guidance consistent with NPCC’s guidance and will be relieved to have now received court guidance affirming its legality and that they may continue relying upon it. Whilst searches involving transgender or non-binary individuals may be rare, both officers and transgender/non-binary detainees rightly expect clarity on their powers, rights and options in these difficult circumstances.
Forces should be clear that this guidance can only apply with the free and informed consent of both the detainee and, importantly, the officer. An officer cannot be compelled to undertake a search of a person of the opposite biological sex and they must not face disciplinary action or career detriment should they refuse.
It is also important to remember that the guidance does not overturn other existing obligations around management of detainees and/or compliance with all other aspects of Codes A and C where a strip search is undertaken. Custody officers continue to be required to undertake appropriate risk assessments of detainees brought into custody and, where a detainee is considered high risk, a request to be searched by somebody of the opposite legal sex may rightly be refused by both the custody and proposed searching officer. The default position of searching in accordance with s54-54B then applies.
Next steps
Sex Matters has already indicated that it intends to appeal the judgment. Should an appeal be heard, the judgment also indicates the potential intervention of those suggesting that a Gender Recognition Certificate is effective in changing a person’s legal sex with PACE which, contrary to current guidance, would mean searches under compulsion being undertaken in accordance with legal rather than biological sex Forces should accordingly continue to monitor developments in this case over the coming months.
Weightmans acted for the Chief Constable of British Transport Police in this matter, and have had involvement in some of the leading cases affecting the police and public bodies following For Women Scotland v Scottish Ministers [2023] CSIH 37. For those interested in the area, our most recent insight as part of the Gender Reassignment and Sex Discrimination series considering the updated EHRC code and our past catalogue can be accessed here.
If you'd like guidance on any aspects surrounding handling strip searchers of transgender and non-binary detainees, please contact our expert emergency service solicitors.
