Policing and Protest: Your rights as an LGBTQ+ person of colour

Disclaimer: this article is for general information. It’s not intended to be used as legal advice. For information on how to get legal advice, please see our page here.

YOUR HUMAN RIGHTS AS AN LGBTQ+ PERSON OF COLOUR

Please note: some of the language used below is based on what the law says, for the purpose of providing legally accurate information. We recognise and apologise that this may misrepresent people’s experiences.

DO I HAVE A HUMAN RIGHT TO BE LGBTQ+?

YES! Your human rights are set out in the European Convention on Human Rights and given effect in the UK through the Human Rights Act (‘HRA’) 1998. These frameworks afford legal protection to your sexual orientation and gender identity. These rights are not affected in any way by Brexit.

WHAT DO THESE LAWS MEAN FOR ME?

Article 8 of the HRA 1998 protects your right to respect for your ‘private and family life.’ Article 14 protects your right not to be discriminated against.

Article 8 means that ‘public authorities’ (including the police) can’t interfere with your personal relationships and bodily autonomy, except where the interference is:

• in accordance with law (e.g. using powers under the Police and Criminal Evidence Act 1984);
• for a ‘legitimate aim’ (e.g. the prevention of crime/disorder, the protection of public health, or the rights of others); and
• proportionate (there are no other less restrictive measures available)

Article 14 means that ‘public authorities’ cannot discriminate against you (treat you less favourably), in the enjoyment of your other rights, on the basis of characteristics that include your race, sexual orientation and gender identity.

The HRA gives effect your these rights in the UK by:

• requiring ‘public authorities’ (including the police) to act in a way that is compatible with your rights; and
• allowing you to bring a claim in UK courts when your rights are violated.

CAN PEOPLE DISCRIMINATE AGAINST ME?

NO! The HRA 1998 protects you from discrimination in the enjoyment of your rights by ‘public authorities’ (including the police). The Equality Act 2010 protects you from discrimination both by public authorities and by private bodies, like your employer or a shop.

The Equality Act 2010 lists a number of ‘protected characteristics’ which include your race, sexual orientation and ‘gender reassignment’ [term used in the legislation]. Public bodies, goods and service providers and employers are not allowed to discriminate against you or harass you because of these characteristics. The Act also protects you if other people harass you or discriminate against you because they wrongly perceive you to be gay, lesbian, bi, trans or queer, or because you ‘associate’ with LGBTQ+ people.

The HRA 1998 similarly protects you from discrimination on the basis of your race, sexual orientation and gender identity, where it relates to one or more of your other rights.

What if I’m trans?

The Equality Act uses the term ‘gender reassignment’, and other outdated terminology/framing. However, it protects you from being discriminated against because you are trans. You don’t need any kind of medical treatment or a GRC to be protected. We use terms as they appear in the legislation, where relevant, for the purpose of legal accuracy.

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Your human rights as a LGBTQ+ POC 1
Your human rights as a LGBTQ+ POC 1

Being searched as a trans person of colour

In explaining the law relating to stop and search, we similarly use the terms found in the legislation or accompanying Codes of Practice, for the purpose of legal accuracy. We recognise and apologise that this may misrepresent people’s experiences. Non-binary people’s experience is also not adequately represented in this legal framework.

CAN I BE STOPPED AND SEARCHED JUST BECAUSE I’M A TRANS POC?

NO. You can only be stopped and searched because:

1. Police have reasonable grounds to suspect that you are carrying the following ‘prohibited’ items:

• • Illegal drugs
  • Stolen Property
  • A weapon
  • Illegal fireworks
  • Something that could be used to commit a crime

Or

2. When a ‘Section 60’ authorisation (which allows suspicion-less stop and searches) is in place – if it is, they have to tell you.

WHAT CAN I DO IF I’M BEING STOPPED AND SEARCHED?

If you are being stopped and searched you can:

• Film the search – you are legally allowed to film the police and can only be stopped from doing so if the photos/footage is likely to be useful to a person preparing/committing an act terrorism. It may be helpful to narrate the footage, in case it fails to capture important details.
• Record the police officer’s details – they must share their name, shoulder number and station with you.
• Get a record of the search within 3 months – you must be given a copy or (if impracticable) information on how to get a copy.

If you have been searched under Section 60, you can get a written statement of the search within one year.

CAN POLICE REMOVE MY CLOTHES?

Police can initially conduct a ‘pat down’ search (‘restricted to superficial examination of outer garments’), which can include placing their hands inside pockets of your outer clothing, feeling around your collar, socks, shoes, and headgear. You should tell them if you have something sharp in your pockets, like keys. They can search your hair, subject to restrictions e.g. relating to your gender and religious/culture practices (see below).

They can only require you – if necessary in the circumstances – to remove ‘outer clothing’ items (outer coat, jacket or gloves, headgear or footwear) in public.

CAN POLICE REMOVE MY HEAD COVERING?

Police officers can only ask you to remove religious articles of clothing if they have reason to believe that the article is being worn wholly or mainly for the purpose of disguising identity. Head coverings like a hijab must be removed in a private setting by an officer of the same ‘sex’ as you. If you’re non-binary, tell the officer the sex you prefer to be treated as. If you are intersex, you should be treated as the sex recorded in your birth certificate (as amended by a Gender Recognition Certification, if applicable to you), or you can ask to be treated as your ‘preferred gender’ (see below) if that is different.

WHAT DOES A STRIP SEARCH INVOLVE?

If the police have reasonable grounds to consider it necessary to remove more than your outer clothing, this is a strip search. You must be told the reason for the search. It must be done out of public view (e.g. in a police van or a nearby police station), unless you consent to it being in public.

Searches involving ‘exposure of intimate parts of the body’ must done done only at a nearby police station or other location out of public view (not in a police vehicle). They should not be a ‘routine extension of a less thorough search’, but based on necessity in the circumstances. Your dignity and privacy should be respected.

You should not be asked to remove all your clothes at once. You should be allowed to re-dress as quickly as possible. You should NOT be touched.

Police should not comment on your appearance or gender presentation, and you should be treated with dignity.

WHEN CAN THE POLICE STRIP SEARCH ME?

Only if police reasonably believe you are hiding an illegal item under your clothes, and it has been authorised by a senior police officer.

WHAT GENDER SHOULD THE OFFICER BE?

The law says strip searches should be carried out by police officers of the same ‘sex’ as you, and not in the presence of police officers of the ‘opposite sex’.

If you have a GRC, police must treat you in accordance with the gender specified on your GRC, but they shouldn’t ask you to provide them with one.

If you don’t have a GRC or don’t want to show it, or they are in ‘doubt’ as to which gender you should treated as, the police should ask you what gender you consider yourself to be. Your stated ‘preference’ should be recorded and you should be treated accordingly.

CAN POLICE MISGENDER ME?

If the police have any ‘grounds to doubt the preference’ you provide (e.g. because ‘documents and other information [undefined] make it clear’ that you ‘live predominantly’ as a difference gender to your stated preference), the Code of Practice states that you should be ‘treated according to what appears to be your predominant lifestyle [undefined]’, as opposed to your indicated preference. This allows for the possibility of being misgendered, as well as creating difficulties for those who are non-binary. Police must record that they have ignored your expressed preference, so get a copy of the record if this happens.

If you don’t provide a ‘preference’, the police are required to make ‘efforts’ [undefined] to ‘determine’ what gender they think you are and treat you accordingly.

If you are a trans man – or a non-binary person who menstruates, and express a preference to be treated as male – you should be asked in private by a custody officer of a gender of your choosing about menstrual products.

Just because the police can lawfully make this ‘determination’ in certain circumstances, it doesn’t make their determination right. Even if a police action is lawful it can still be a difficult or painful experience.

There is no shame in not disclosing that you are trans, or expressing a preference to be treated as a gender you are not. Always do what makes you feel safest.

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Being searched as a trans POC 1
Being searched as a trans POC 2
Being searched as a trans POC 3

The Code of Practice accompanying the legislation requires that “all stops and searches must be carried out with courtesy, consideration and respect” and “every reasonable effort must be made to minimise the embarassment that a person being searched may experience.”