Becerra, 070617 CAAGO, AGO 17-302

Case DateJuly 06, 2017
CourtCalifornia
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 40301 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...

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