XAVIER BECERRA Attorney General
CATHERINE BIDART Deputy Attorney General
AGO 17-302
No. 17-302
California Attorney General Opinion
Office of the Attorney General State of California
July 6, 2017
THE
HONORABLE VICKI L. HENNESSY, Sheriff of the City and County
of San Francisco, has requested an opinion on the following
question:
Penal
Code section 4030, subdivision (k), specifies that any person
(other than medical staff) who conducts, or is present at, or
is within sight of, a strip search, body cavity search, or
body scan of specified prearraignment detainees must be the
"same sex" as the person searched. Does the term
"sex," as used in this provision, refer to the
searched person's gender, including the person's
gender identity and gender expression?
CONCLUSION
"Sex"
as used in Penal Code section 4030, subdivision (k) refers to
the searched person's gender, including the person's
gender identity and gender expression.
ANALYSIS
Penal
Code section 4030
1 governs strip searches, body cavity
searches, and body scans conducted on prearraignment
detainees, including specified minors, arrested for an
infraction or misdemeanor.
2 Subdivision (k) of the statute provides
that any person (other than medical staff) who conducts, is
present at, or is within sight of, the search, must be the
"same sex" as the person being searched. We have
been asked whether the term "sex," as used in
subdivision (k), refers to the gender of the person searched,
including the person's gender identity and gender
expression. For the reasons that follow, we conclude that it
does.
Subdivision
(k) states:
(1) A person conducting or otherwise present or within sight
of the inmate during a strip search or visual or physical
body cavity search shall be of the same sex as the person
being searched, except for physicians or licensed medical
personnel.
(2) A person within sight of the visual display of a body
scanner depicting the body during a scan shall be of the same
sex as the person being scanned, except for physicians or
licensed medical personnel.3
To...