Indocile Bodies: Gender Identity and Strip Searches in Canadian Criminal Law

This article examines what happens when non-normative genders and sexualities collide with the complicated world of criminal procedure. Grounded in a close reading of Forrester v. Peel (Regional Municipality) Police Services Board, a recent decision
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  Indocile Bodies: Gender Identity and Strip Searches inCanadian Criminal Law * Kyle KirkupIntroduction What happens when non-normative genders and sexualities collide with thecomplicated world of criminal procedure? What might the criminal justicesystem’s treatment of trans persons reveal about our deep-seated anxietiesabout bodies, genders, and sexualities? How might strip searches represent a larger series of coercive mechanisms used to dissuade members of societyfrom breaking from traditionally accepted “norms”? And what strategiesmight we use to resist these constrictive systems of power? To answer thesequestions, I ground my analysis in a close reading of a 2006 Canadiancase, Forrester v. Peel (Regional Municipality) Police Services Board  . 1 In this case, Rosalyn Forrester brought an Ontario Human Rights Code(OHRC) 2 complaint against the Peel Police Services Board, alleging repeated acts of discrimination in services on the basis of sex. Forrester was a preopera-tive male-to-female (MTF) trans woman who claimed she had been ques-tioned, mocked, incarcerated, and inappropriately strip-searched following aseries of arrests. While Forrester repeatedly requested that female officers perform these searches, her requests were denied. During two searches,male officers performed the strip searches alone. On one other occasion,male and female officers performed a “split search.” During the “split search,” male officers examined Forrester’s “male” lower body whilefemale officers inspected her “female” upper body.Drawing on insights gleaned from Forrester  , I argue that strip searchesexist as part of a larger system of power, a system in which bodies,genders, and sexualities outside the socially constructed “norm” are routinelysubjected to discipline and punishment. Trans bodies are targeted not merely because they are perceived as different but also because of what that differ-ence symbolizes: a failure of the regimes that regulate bodies into a sharp,essentialist gender binary. As such, trans bodies become a key site for  * The author thanks Graham Mayeda and Elizabeth Sheehy for their comments on earlier drafts of this article. He also thanks Mariana Valverde and the three anonymousreviewers who provided thoughtful suggestions for revision. Finally, he thanks Jerald Sabin for his support throughout this project. 1 [2006] H.R.T.O. 13 [  Forrester  ]. 2 R.S.O. 1990, c. H.19. Canadian Journal of Law and Society / Revue Canadienne Droit et Socie´ te´  , 2009,Volume 24, no. 1, pp. 107–125  simultaneous observation, normalization, and examination not only by the police but also by society at large. The Law of Strip Searches in Canada Golden (2001) 3 is the Supreme Court of Canada’s leading case on stripsearches and, as such, provides a useful starting point for my analysis. IanVincent Golden was arrested after the police believed they had observed him crushing crack cocaine between his fingers. After detaining him, a police officer conducted a “pat-down” search of Golden’s body, whichfound no weapons or narcotics. At this point, the officer conducted a visualinspection of Golden’s underwear and buttocks in a stairwell leading to a basement where public washrooms were located. The officer then undid Golden’s pants, at which point he noticed a clear plastic package coveringa white substance protruding from Golden’s buttocks. Officers then forced Golden to bend over a table with his pants and underwear pulled down.Encountering difficulty when they attempted to pull the package from his but-tocks, the officers eventually retrieved a pair of used rubber dishwashinggloves, which one of them wore while dislodging the package. The officerswere finally able to remove the package, which contained 10.1 grams of crack cocaine. Golden was then charged with possession of a narcotic for the purpose of trafficking and with police assault. He was again strip-searched at the police station as a “security measure.” 4 The majority of the Court held that the warrantless strip search imposed on Golden was conducted in anunreasonable manner and, thus, infringed his s. 8 Charter rights. 5 The majoritytherefore excluded the evidence obtained as a result of the strip search under s. 24 of the Charter. 6 The standard now is that a strip search can be performed only if the police or other government officials have reasons for the search beyond the “reasonable grounds” that led to the person’s detainment.In its analysis, the Court defined the term “strip search” as “the removal or rearrangement of some or all of the clothing of a person so as to permit avisual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female), or undergarments.” 7 While the Court’s defi-nition excluded a trans person who, for example, might self-identify as female but not have breasts, the Court recognized that strip searches may be particu-larly intrusive for women and minorities. Iacobucci and Arbour JJ., represent-ing the majority of the Court, stated, “Women and minorities in particular mayhave a real fear of strip searches and may experience such a search as equiv-alent to a sexual assault.” 8 While the Court recognized the particularly intru-sive nature of strip searches for historically marginalized groups, trans 3  R. v. Golden , 2001 SCC 83, [2001] 3 S.C.R. 679, (2002) 207 D.L.R. (4th) 18 [ Golden ]. 4 Ibid. at paras. 27–36. 5 Ibid. at paras. 49–117. 6 Ibid. at paras. 118–19. 7 Ibid. at para. 47. 8 Ibid. at para. 90. 108 Kyle Kirkup  individuals are never mentioned. Forrester  , it seems, works to fill the gap left  by Golden .Rosalyn Forrester filed an OHRC complaint against the Peel PoliceServices Board in 2003 because of strip searches she had undergone in1999. The strip searches of Forrester occurred in the pre- Golden era, when police often strip-searched arrestees as a “security measure.” 9 As noted above, in some instances Forrester’s strip searches were conducted exclusively by male police officers, while in another instance, a “split search” was con-ducted during which male officers examined Forrester’s still intact peniswhile female officers inspected her breasts, which were developing as aresult of hormone-therapy treatments. Forrester claimed that she “repeatedlyrequested female officers to perform these searches, but that her requestswere denied.” 10 In 2002, after the Golden decision was released, the Peel Police ServicesBoard enacted a policy to advise officers that strip searches were prohibited absent reasonable and probable grounds. The board also enacted a policyentitled “Strip Searching Transsexuals,” which stated, Officers have encountered individuals who have been in the process of changing their outward sexual organs from male to female. Sometimesthese individuals have received breast augmentation or hormone treat-ments to increase their breast size. If there is reasonable grounds to stripsearch these individuals, a female officer should search the top half of the individual and a male officer should search the genital area of theindividual, as the case may be. Each individual set of circumstancesshould be viewed independently. Common sense should dictate, witha view of maintaining the individuals [  sic ] privacy and person [  sic ]integrity. 11 The policy stated that officers should question the person about to be searched in order to determine his or her gender status; when in doubt, the officer-in-charge would make the final decision on the detained person’s “degree of gender alteration.” 12 At the beginning of the hearing, the Peel Police Services Board argued that its 2002 policy on “split searches” was “sufficient to meet its obligationsunder the Code , and argued that it was more than what other police forces doto accommodate transsexuals who are being strip-searched.” 13 Just prior toclosing submissions, however, counsel for the board explained that “her client had had an epiphany of sorts” and “admitted liability under the Code , stating that it had unintentionally discriminated against Ms.Forrester.” 14 Counsel for the Police Services Board explained to the OntarioHuman Rights Commission that it had settled with Forrester with respect to 9  Forrester  at para. 3. 10 Ibid. at para. 1. 11 Ibid. at para. 4. 12 Ibid. at para. 5. 13 Ibid. at para. 6. 14 Ibid. at para. 16. Gender Identity and Strip Searches in Canadian Criminal Law 109  remedies. Therefore, the commission decided to “strive to issue a decision that is hopefully inspirational to other police forces across Ontario which may lack  policies on searching transsexual persons.” 15 The commission narrowed the complicated series of events into fivecentral questions. Four of these questions relate to procedural aspects of trans strip searches, while the last deals with the development and implemen-tation of education programs for police officers: (i) Should the Respondent be required, as it has voluntarily proposed,to give a male or female transsexual a choice of being searched by amale or female officer or given a split search?(ii) If there is any dispute between the officer and the detainee about whether or not the detainee is transsexual, should the detainee have toanswer some prescribed questions in order to validate his or her com-mitment to transitioning and to eliminate potential false claims?(iii) If there is a dispute between the officer and the detainee about the validity of the detainee’s self-disclosure as a transsexual, whoshould make the final decision prior to the search, the Officer-in-Charge, or the detainee?(iv) If an officer is of the same sex as the transsexual detainee, and the officer feels uncomfortable performing the search, can that officer “opt out” without sanction if another officer of the same sexis available to perform the strip-search without delay?(v) Should the proposed education and training for new officers on performing strip-searches on transsexuals be extended to include allexisting officers? If so, how? 16 A full treatment of these complicated legal issues and their connection tocriminal procedure in Canada goes beyond the scope of my analysis.However, a few brief comments on each of these five issues may be helpful here. (i) Choice of male officer(s), female officer(s), or “split search”  First, the Human Rights Commission rejected the policy of performing “split searches” in cases of individuals with a so-called male lower half and femaleupper half (or vice versa). Rather, the commission stated that Peel would haveto revise its policy such that transsexual detainees would be offered threeoptions with respect to who would perform the strip search: male officer(s)only, female officer(s) only, or a “split search.” 17 The commission recognized the extent to which Forrester was psychologically injured by the male-onlyand “split searches” when she self-identified as a woman. (ii) Dispute between officer and detainee regarding transsexual status The Human Rights Commission stated that before a strip search is conducted,“an officer must explain the process, take notes prior to conducting the search 15 Ibid. at para. 22. 16 Ibid. at para. 24. 17 Ibid. 110 Kyle Kirkup  including the choice made by a transsexual detainee, and notify his or her Officer-in-Charge who will authorize the strip-search.” 18 To gain access tothe three options, then, the detainee must first be identified  as transsexual.The respondent in Forrester  recognized that it would often be “possible torecognize or accept a transsexual on self-identification, particularly if doingso will secure the detainee’s cooperation.” 19 However, the parties disagreed about how best to proceed in cases in which police officers doubted the detai-nee’s self-identification. The commission ordered that, when an officer has“serious reason to doubt a detainee’s self-identification as a transsexual,”the officer be permitted to ask the detainee several questions in private to“verify the detainee’s status.” 20 (iii) The final “gender determination”  The Human Rights Commission expressed confidence that, having asked theself-identified transsexual person several questions, the police officer willhave a good sense of the detainee’s gender status and stated that if, after asking the questions, the officer “continues to have serious reason to doubt the detainee’s self-identification, the officer shall defer to the Officer-in-Charge of the Division for a final determination.” 21 The commission accepted evidence given on behalf of the Peel Police Services Board that police officersoften find large and dangerous weapons on the bodies of detainees.Apparently, the police worried that detainees might begin to falsely identifythemselves as trans in order to have female police officers conduct their strip searches; for this reason, it was important for the police to have thefinal word regarding the “gender determination.” The commission accepted the claim that officer safety would be compromised if the police did not have the final word. 22 This claim is problematic, however, for three reasons.First, the commission’s finding does not accord with the statement of Iacobucci and Arbour JJ. in Golden that a “‘frisk’ or ‘pat-down’ search at the point of arrest will generally suffice for the purposes of determining if the accused has secreted weapons on his person.” 23 Second, the commissionseems to have shown unnecessary deference to the police board’s invocationof officer safety without acknowledging the concerns raised by Forrester.Third, the decision implies a lack of confidence in the ability of female police officers to disarm detainees, should the need arise, without the assist-ance of male officers. 18 Ibid. at para. 476. 19 Ibid. at para. 431. 20 Ibid. at para. 476. Unfortunately, the Human Rights Commission’s opinion is silent as towhat sorts of cues might lead police officers to seriously doubt the detainee’s self-identification. 21 Ibid. 22 Ibid. at paras. 440–42. 23 Golden at para. 94. Gender Identity and Strip Searches in Canadian Criminal Law 111
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