Gender based clothing issues and breach of the peace (Scotland)
Throwaway account for obvious reasons. This is unfortunately not a hypothetical question, the following events happened last month in Scotland to one of my relatives but they only disclosed it to me this week. I have their permission to post this here, I’ll try and keep it as short as I can but this is their story as they told it to me. Just to warn you right away I’ve marked this post NSFW because it touches on some potentially sensitive topics i.e. gender issues and allegations of inappropriate behaviour.
TLDR: is it a breach of the peace or a sexual offence for a non-binary person (born male) to wear a female swimming costume in a council pool if another swimmer complains?
My relative is in their early 20s and has been struggling with gender and body issues since childhood; they were born male but feel somewhere between non-binary and female. We’ve always been close as we grew up around each other, I’m the only family member they’ve told about their feelings and I have been trying to help them as best I can. They have always previously presented as male but are becoming more confident at presenting in public as non-binary and earlier this year started occasionally presenting as female.
They visit a council leisure centre for a lane swimming session; they have been swimming at the leisure centre on and off for a for a few years but have always previously presented as male there. On this occasion they’re wearing male clothes to and from the centre but decide that today they’re going to wear a female one piece swimsuit when in the pool because they want to feel more comfortable than going bare chested. They see this as a big step towards accepting their gender identity.
The changing area is shared gender and is made up entirely of private cubicles. It’s not very busy but there are a few other customers about. My relative goes into a cubicle, gets changed, puts their stuff in a locker, takes a shower and enters the pool. They are swimming lengths when a lifeguard attracts their attention and asks them to come to the side of the pool. The lifeguard says that a woman has complained about what they are wearing and asks why they are choosing to wear a female swimsuit “
as a man”. They immediately become embarrassed and self conscious, and struggle to come up with a coherent answer because these are difficult and deeply rooted issues which are hard to discuss with strangers. The lifeguard then asks them to get out of the pool, sit on the benches and wait for the duty manager. My relative does this but now feels even more self conscious as other swimmers are staring at them.
The duty manager arrives a couple of minutes later and she asks the same question as the lifeguard. My relative replies that they are finding it hard to talk about but they have gender issues that they’re trying to come to terms with and they identify as non-binary. The manager asks if they are being treated by a doctor for being transgender and they answer no. The manager asks if they told the reception staff that they were transgender when they paid and they reply that they didn’t know they were supposed to do that.
The duty manager then tells them that they “
get a lot of perverts” at the pool and says that unless they can supply some evidence of being genuinely transgender then the police would be called. My relative sees the clear implication of this statement is that the manager thinks they’re one of the perverts. Because of this they get a bit upset and agitated so they tell the manager that they‘d prefer to just leave and they walk away to get changed.
By the time they’re finished getting changed and are on the way out, two police officers are waiting at the reception desk and the duty manager points out my relative to them. The officers take them to one side of the entrance (still in public view and earshot), tell them that they’ve been called to a potential breach of the peace because of their behaviour and ask them to confirm they were wearing a female swimsuit in the pool. One officer asks them to explain why they are now dressed as a man but were wearing a female swimming costume earlier.
The officer says that a woman has complained that her young children could see their gentials through the suit, and that she had alleged my relative was aroused while walking around the changing area. They strongly deny this. The officer asks whether they were wearing the swimsuit because of a sexual fetish and again my relative very strongly denies this. At this point they just want the ground to open up and swallow them. The other officer tells them they have to take child protection very seriously and that my relative could be in big trouble.
One officer then asks for their name, address and date of birth and goes off on his own, presumably to check them on the police radio. The other officer asks to look through their bag. This officer takes the wet swimsuit out, holds it up and asks them if this is what they were wearing in the pool. The officer then examines it very closely and my relative says they think that the officer may have been looking for evidence of semen on the fabric. After a while the officer puts it back in the bag then tells them not to move and goes away.
After a few minutes both officers come back together with the manager and tell my relative that they’re “
not known on the system” so they’re free to leave. However they warn them not to come back to the leisure centre again and that if they’re seen “
hanging around here” again then they would be arrested for a breach of the peace and could end up on the sex offender’s register. The duty manager says that her staff will be looking out for them. Just before my relative walks out the door one of the officers says loudly “
you can do like in your own home but let this be a lesson for you”.
My relative is totally mortified by the whole thing, they found it very traumatic and it has really upset them. They say they have no intention of ever going back to the pool again but they’re worried this incident may come back to bite them in future, in particular they are terrified they’re going to end up labelled as a sex offender on some government database. I can’t stress enough that there is no sexual element to my relative’s actions; they are just trying to live their life exploring their true gender identity and this unpleasant accusation has knocked their confidence hugely.
I’m very angry about the outrageous way my relative was treated (I actually found this post very difficult to write dispassionately) and I have a few questions on their behalf:
- Is the wearing of a female swimsuit by a person with male genitalia at a public pool a breach of the peace or a sexual offence in Scotland?
Have any equalities law been broken, either by the council employees or the police officers? If so, is there a legal remedy open to them?
Can the police and the council effectively informally ban my relative from a taxpayer funded leisure centre because the way they prefer to dress goes against social norms?
Can the police keep a record of this incident and if so will it show on a pre-employment check?
