DEI: Unavoidable Realities in Law Enforcement

It’s an unfortunate reality in today’s world that politics have integrated themselves into nearly every topic. Diversity, Equity and Inclusion (DEI), while seemingly simple and straight-forward, can be anything but once the entire community decides to weigh in with their opinion on what’s acceptable and what’s not. Attached to that is the fact that people think different things when they hear the terms. Diversity… Equity… Inclusion. Some folks interpret “Inclusion” as a mandatory acceptance of people or conditions that they normally wouldn’t accept, and they take umbrage with that. Diversity covers a lot even though it’s often perceived as only about a given characteristic: racial diversity, gender diversity, religious diversity, age diversity, education diversity—diversity can cover almost anything wherein people can be qualified as different. Given that every human is unique, diversity is guaranteed but, in today’s world, is required to be quantified.

There are two large challenges that face law enforcement agencies in today’s world where DEI is concerned:

First, all of an agency’s policies and protocols, to include their General Orders, must support treating every citizen without prejudice no matter what the personality and physical characteristics of an individual are.    

Second, an agency has to ensure that their hiring standards and practices are legally defensible. That said, psychiatric evaluations that are required as part of the hiring practice can become contentious where some characteristics are concerned.

When an officer is taking any kind of investigative or enforcement action during the course of his duties, he will inevitably encounter people of different protected statuses such as race, gender, religion, age, etc. In today’s world, it’s also likely that the officer will encounter people of different sexualities and who are gender dysphoric. In all such instances, an impartial agency protocol that has been detailed in policy and trained during structured in-service, must be followed.

Consider this example: A male police officer executes a traffic stop on a vehicle being driven by a transgender woman (a male who identifies, dresses and acts as a female), and a warrant check of the driver reveals an open warrant. The male officer has to arrest the driver and, as part of the arrest process, has to search the driver. As a transgender woman, the driver may take exception to being searched by a male officer. S/he may feel it is sexually inappropriate. On the other hand, if the male police officer tries to accommodate the transgender woman by finding a female officer to do the search subsequent to the arrest, the driver—who is in reality a male—may take exception to being searched by a female police officer. So, how does an agency set policy that will protect the rights of the citizens and minimize potential liability to the agency?

One agency minimized this challenge by creating a policy that said officers would manage all citizen interactions, involving enforcement action, based upon the gender documented on their state issued identification or driver’s license. So, in the example given, the officer would handle the arrest and the search of the transgender woman if “her” driver’s license still showed his gender as MALE.

Other such policies can also be written, and several professional organizations have sample policies for dealing with such challenges.

The International Association of Chiefs of Police (IACP) has a webpage dedicated to sample policies and considerations or concerns surrounding them:  https://www.theiacp.org/resources/policy-center-topic-directory

The Police Executive Research Forum (PERF) also publishes reports and research papers on a variety of topics: https://www.policeforum.org/publications

The U.S. Department of Justice, Office of Justice Programs (DoJOJP) also has a resource webpage with available recommended policies and procedures: https://www.ojp.gov/taxonomy/term/police-policies-and-procedures

To properly address policy concerns, and how they constantly evolve, it’s important to start by identifying what your agency doesn’t already have. Most agencies perform updates of their General Orders and Standard Operating Procedures on a regular schedule, but whether that schedule is annual, every other year, or more lenient, it may depend on inputs inappropriate to the given jurisdiction. States can have differing laws, as can counties and cities, and if they’re all using the same national guidance, it may not be 100% applicable. Before your agency creates or updates policies on today’s contentious topics, first review what you currently have and then move forward.

Hiring practices are a different concern. Some police psychologists and/or the services agencies use to psychologically screen their applicants consider gender dysphoria an indicator of mental instability or a personality disorder. Having a candidate disqualified due to this may result in civil suits and the agency’s legal representatives should be prepared to defend against such claims, based on the psychologist’s report.

If your agency doesn’t disqualify candidates who are gender dysphoric, non-binary or gender fluid, then you may hire transgender men or women. That will create the challenge of dealing with transgender officers in locker rooms, showers, etc. If your agency policy permits for such, additional guidelines will be needed to protect the concerns of both the trans- and non-trans officers. Such policies may require a lot of legal language and the involvement of your agency’s legal team. To make the potential challenges even bigger, imagine a transgender officer taking enforcement action and having to abide by agency policy, which has to delineate all of the potential officer-subject interactions to ensure all officer actions are defensible and in line with the aforementioned policy.

If, at the end of the day, you’re not sure your agency is legally covered with appropriate published policy, start working on it now. It is inevitable that you will have to deal with the concerns.