_________________________ 

 

________________________________________________________________________ 

 

 

 

TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

XAVIER BECERRA
 

Attorney General
 

: 

OPINION : No. 17-302 

: 

of : July 6, 2017 

: 

XAVIER BECERRA : 

Attorney General : 

: 

CATHERINE BIDART : 

Deputy Attorney General : 

: 

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. 

1
 

17-302
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 ascertain the Legislature’s intent, we first look to the ordinary meaning of the 

words of the statute.

4 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.”5 

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 

1 All subsequent undesignated section references are to the Penal Code. 

2 Pen. Code, § 4030, subds. (b), (k). 

3 Pen. Code, § 4030, subd. (k). 

4 Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977; Pen. Code, § 7, subd. (16). 

E.g., Civ. Code, §§ 51, subd. (e)(5); Ed. Code, §§ 210.766260.7; Gov. Code, 

§ 12926, subd. (r)(2); Ins. Code, §§ 10140, subd. (h); Pen. Code, § 422.56, subd. (c). 

2
 

17-302
 

5 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

birth.”6 This definition applies throughout the Penal Code “unless an explicit provision 

of law or the context clearly requires a different meaning.”7 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 

1984.8 Legislative committee analyses of the first bill that amended the statute reveal an 

intent9 that “sex” means “gender.”10 The bill language, like the statute, sets forth a samesex 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.

11 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.12 

6 Pen. Code, § 422.57. 

7 Pen. Code, § 422.57. 

8 Stats. 2016, ch. 162, § 1 (authorizing use of visual body scanner); Stats. 2015, 

ch. 464, § 1 (persons present during search include persons within view of search); Stats. 

1984, ch. 35, § 2 (enacting Penal Code section 4030). 

9 Southland Mechanical Constructors Corp. v. Nixen (1981) 119 Cal.App.3d 417, 427 

(committee reports presumed to evidence legislative intent). 

10 Neither the legislative history of section 4030 as enacted, nor that of the second bill 

that amended the statute, shed light on the intended meaning of “sex.” 

11 See, e.g., Off. of Sen. Floor Analysis, 3d reading of Assem. Bill 303 (2015–2016 

Reg. Sess.), August 31, 2015, p. 5 (“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”); Sen. Comm. 

on Pub. Saf., analysis of Assem. Bill 303 (2015–2016 Reg. Sess.), June 9, 2015, p. 8 

(same); Assem. Comm. on Approps., analysis of Assem. Bill 303 (2015–2016 Reg. 

Sess.), April 29, 2015, p. 2 (“bill mandates that these searches be conducted out of view 

of all persons not of the same gender as the person being searched”); Assem. Comm. on 

Pub. Saf., analysis of Assem. Bill 303 (2015–2016 Reg. Sess.), April 21, 2015, pp. 4-5 

(describing bill as “small modification of existing law, which already requires that 

persons conducting strip searches of persons in police custody must be of the same 

gender as the person being searched,” and explaining “bill simply specifies that all 

persons within view of the search must also be of the same gender”). 

12 Pen. Code, §§ 422.56, subd. (c), 422.57. 

3
 

17-302
 
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. 

***** 

4
 

17-302