When California's jail strip-search rule says the person conducting or watching a strip search must be the 'same sex' as the inmate being searched, does that include the inmate's gender identity and expression?

Plain-English summary

San Francisco Sheriff Vicki Hennessy asked the AG a question that comes up at intake desks across California: when state law says a strip search of a prearraignment detainee must be conducted by, and witnessed only by, someone of the "same sex" as the detainee, does "sex" mean assigned-at-birth sex, or does it mean the detainee's gender identity?

AG Xavier Becerra answered that "sex" in Penal Code section 4030, subdivision (k), means gender, including gender identity and gender expression. The reasoning is straightforward as a matter of California statutory text. The Penal Code itself, at section 422.57, defines "gender" as "sex" and includes "gender identity and gender expression," and section 422.56(c) defines "gender expression" as "a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." That definition applies throughout the Penal Code "unless an explicit provision of law or the context clearly requires a different meaning." The AG found no contrary provision or context in section 4030.

The AG also looked at the legislative history and found additional support. When the Legislature amended section 4030 in 2015 (AB 303) and 2016, committee analyses repeatedly described the rule as a "same-gender" requirement, not a "same-sex" requirement based on biological sex. The "Office of Senate Floor Analysis" said the bill "maintains the existing practice of permitting strip searches of inmates prior to them entering the general population and simply specifies that all persons within view of the search must also be of the same gender." Multiple committee analyses used "gender" interchangeably with "sex." That consistent legislative usage tells the AG that the Legislature itself read "sex" in section 4030(k) as gender.

The operational consequence: a transgender woman in jail intake should be strip-searched by, and watched by, female officers. A transgender man should be strip-searched by, and watched by, male officers. The cross-reference for body scanners, also added to subdivision (k), follows the same rule. The exception for "physicians or licensed medical personnel" continues to apply.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Penal Code section 4030 has been amended several times since 2017. Anyone applying this analysis to current jail or lockup operations should pull current statute, current Title 15 corrections regulations, and any later guidance from the AG, the Board of State and Community Corrections, or the courts.

Common questions

Q: What kinds of detainees does Penal Code section 4030 apply to?
A: Prearraignment detainees, including specified minors, arrested for an infraction or misdemeanor. Pre-conviction, post-arrest detainees in lockup before they have been arraigned in court. The statute also covers strip searches, visual or physical body cavity searches, and body scans (added in 2016).

Q: Why was there any ambiguity at all?
A: The statute uses the word "sex" without defining it. The Penal Code's general definitional rules (sections 422.56 and 422.57) define "gender" to mean "sex" and include "gender identity and gender expression," but those definitions live in the hate-crimes chapter. The Sheriff wanted formal AG guidance that the Penal Code's general definitions apply to section 4030's text, not just to hate-crimes provisions. The AG confirmed they do.

Q: Who decides what gender a detainee identifies as?
A: The opinion does not directly address the intake-procedure question. As a practical matter, jail intake officers ask. Most California sheriff's policies developed since this opinion respect detainee self-identification for purposes of search assignment. Specific procedures vary by agency.

Q: Does the rule allow a detainee to request a search by an officer of a particular gender outside the same-gender rule?
A: Section 4030(k) is a floor: searches "shall be" by same-gender personnel. The opinion does not analyze waivers. As a practical matter, most agencies treat the same-gender rule as a protection that the detainee can invoke but not waive against the agency's policy.

Q: What about medical personnel?
A: Section 4030(k) explicitly excepts "physicians or licensed medical personnel" from the same-gender requirement. A medical professional may conduct or witness the search regardless of gender.

Q: Did the AG address how to handle nonbinary or intersex detainees?
A: No. The opinion limits itself to confirming that "sex" includes gender identity and expression. Practical handling of nonbinary or intersex detainees is left to agency policy.

Q: Does this opinion apply to post-conviction inmates in state prison?
A: The opinion is limited to Penal Code section 4030, which governs prearraignment detainees in jail or lockup. Post-conviction state prisoners are governed by Penal Code section 2600 et seq. and CDCR regulations, which have their own gender-identity policies. Read this opinion narrowly to its statute.

Background and statutory framework

Penal Code section 4030 was enacted in 1984 (Stats. 1984, ch. 35, § 2) to regulate strip searches of misdemeanor and infraction prearraignment detainees, in response to litigation and policy concerns about overuse of body searches in jail intake. The statute lays out when such searches are allowed, what kinds of searches are permitted (strip, visual body cavity, physical body cavity, body scan), what authorizations are required (a higher-ranking supervisor for body cavity searches), and the same-gender witness rule in subdivision (k).

The statute was amended in 2015 (AB 303, Stats. 2015, ch. 464) to clarify that "persons present" during the search includes anyone within view of it, and again in 2016 (Stats. 2016, ch. 162) to address body scanners that produce visual displays of the searched person's body. The 2015 and 2016 amendments expanded subdivision (k) but left the "same sex" language intact.

The Penal Code's general definition of "gender" sits at section 422.57: "'Gender' means sex, and includes a person's gender identity and gender expression." Section 422.56(c) defines "gender expression" as "a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." Both provisions sit in chapter 11.6 (Civil Rights), but section 422.57 expressly applies "unless an explicit provision of law or the context clearly requires a different meaning."

The AG noted that this same gender = sex equation appears throughout the California codes: Civil Code section 51, subdivision (e)(5) (Unruh Civil Rights Act); Education Code sections 210.7 and 66260.7 (school nondiscrimination); Government Code section 12926, subdivision (r)(2) (FEHA); Insurance Code section 10140, subdivision (h); and Penal Code section 422.56, subdivision (c). The AG read this consistent usage as legislative intent that gender includes identity and expression.

The legislative history of AB 303 (2015) was the most direct evidence of intent for section 4030 specifically. Multiple committee analyses describing the bill called it a "same-gender" search rule, used "gender" instead of "sex" throughout, and explained the protection in gender terms.

Citations and references

Statutes:

• Penal Code section 4030 (strip search and body scan rules for prearraignment detainees)
• Penal Code section 4030, subdivision (b) (covered detainees)
• Penal Code section 4030, subdivision (k) (same-gender rule for personnel conducting or witnessing search)
• Penal Code section 7, subdivision (16) (general Penal Code definitions)
• Penal Code section 422.56, subdivision (c) (definition of "gender expression")
• Penal Code section 422.57 (definition of "gender" as sex including gender identity and gender expression)
• Civil Code section 51, subdivision (e)(5) (Unruh Civil Rights Act gender definition)
• Education Code sections 210.7, 66260.7 (school nondiscrimination definitions)
• Government Code section 12926, subdivision (r)(2) (FEHA)
• Insurance Code section 10140, subdivision (h)

Cases:

• Wilcox v. Birtwhistle, 21 Cal.4th 973 (1999) (look first to ordinary meaning of statutory words)
• Southland Mechanical Constructors Corp. v. Nixen, 119 Cal.App.3d 417 (1981) (committee reports presumed to evidence legislative intent)

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/17-302_0.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General

OPINION
of
XAVIER BECERRA
Attorney General
CATHERINE BIDART
Deputy Attorney General

No. 17-302
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 governs strip searches, body cavity searches, and body scans conducted on prearraignment detainees, including specified minors, arrested for an infraction or misdemeanor. 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.

To ascertain the Legislature's intent, we first look to the ordinary meaning of the words of the statute. Although section 4030 and case law do not define the term, we find that the word "sex" is consistently defined throughout the codes to mean "gender," and "gender" is consistently defined to mean "sex" and includes "gender identity and gender expression."

The Penal Code itself defines "gender" as "sex," including "gender identity and gender expression;" "gender expression" means "a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." This definition applies throughout the Penal Code "unless an explicit provision of law or the context clearly requires a different meaning." We find no contrary provision or context here.

In addition, the legislative history of section 4030 strongly supports a conclusion that "sex" means "gender." Section 4030 has been amended twice since its enactment in 1984. Legislative committee analyses of the first bill that amended the statute reveal an intent that "sex" means "gender." The bill language, like the statute, sets forth a same-sex search requirement, but the analyses invariably describe it as a "same-gender" search requirement: a person who conducts, is present, or within sight of the search must be the same gender as the person searched. As the committee analyses consistently interpret the term "sex" to mean "gender," we believe the intent for "sex" to mean "gender" is clear. And again, in the Penal Code, "gender" means "sex" and includes "gender identity and gender expression," unless clearly indicated otherwise.

Accordingly, we conclude that "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.