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Human rights tribunal sets trans strip-search policy

Complainant doesn't like questions police can ask

Transsexuals facing strip-searches by police can now request a male or female officer to perform it, states a landmark ruling by the Human Rights Tribunal Of Ontario.

Last month the tribunal reached a decision in the case Rosalyn Forrester filed against the Peel Region Police. But Forrester herself has suggested she’s not happy with the decision because of the questions it allows police officers to ask.

Forrester, a transsexual woman who has not undergone sex reassignment surgery, says she was strip-searched by male police officers, and a combination of male and female officers on several separate occasions between 1999 and 2001.

Each time Forrester says she asked for a female officer to perform the search but was denied each time.

According to the tribunal’s May 16 ruling, “A transsexual detainee must be offered one of three options for a strip-search, namely: male officer(s) only or female officer(s) only or a split search.”

The officer in charge has to authorize the search and has final say as to which officer or officers ultimately carries it out.

Peel police are also required to produce a training video to educate officers about transsexuals. The Ontario Human Rights Commission must approve the video before its release.

National lobby group Egale Canada applauded the decision.

“I think it’s a good step forward,” says executive director Gilles Marchildon. “Any legislation acknowledging trans people lays one more stone in the foundation. To me choice always empowers individuals.”

But the woman at the centre of the case does not share Egale’s enthusiasm. Forrester has stated she doesn’t like the list of questions put forward by the tribunal for police use to verify someone as transsexual.

“The ruling… leaves too many openings for the bigoted cops I know are out there still working to squirm through,” she stated in an e-mail she sent to an Egale listserv. She declined an interview with Xtra.

The questions were conceived by Cynthia Cousens, a retired police officer and a transsexual who testified as an expert witness for the commission at the tribunal hearing.

Some examples of permissible questions include: “Have you had sex reassignment surgery?” “Have you changed your identification documents to date?” “Have you registered a new male/female name?” and “How many people have you disclosed your intentions to?”

“I find myself wondering whose business it is whether one has come out to family, friends or work,” stated Forrester. “This is one of those questions that gives the cops leverage over a person not yet out to everyone. What are the cops going to do, call and confirm this?”

The tribunal says such questions are needed to ensure others such as crossdressers and transvestites are not falsely identifying themselves as transsexuals.

Amyn Hadibhai, counsel for the commission. says he argued against these questions, citing that there was no evidence they would be helpful.

Individual officers are not permitted to opt out of searches of transsexuals unless they have significant Human Rights Code or Charter Of Rights And Freedoms interests to protect, the tribunal ruled. For example, a female officer who had been the victim of male sexual violence would be able to opt out of searching a transsexual with male genitalia. Hadibhai says Peel Police were initially pushing a more general opt-out option.

“If someone was uncomfortable performing a strip-search of a trans person, [the force was advocating that] they didn’t have to if there was someone else there to do it,” says Hadibhai. “You have to have a pretty good reason, better than, ‘I don’t like or understand transsexual people.'”