Decision of the Complaints Committee 01555-19 Mermaids and Gendered Intelligence v The Sunday Times
Summary of complaint
1. Mermaids and Gendered Intelligence complained to the Independent Press Standards Organisation that The Sunday Times breached Clause 1 (Accuracy), Clause 2 (Privacy) and Clause 10 (Clandestine devices or subterfuge) of the Editors’ Code of Practice in an article headlined “Child sex-change charity Mermaids handed £500,000 by national lottery”, published on 16 December 2018, and an article headlined “Trans clinic fears damage to children as activists harass staff”, published on 17 February 2019. The articles were also published in substantially the same form online.
2. The first article reported that Mermaids, a charity which supports gender diverse and transgender youth, had been awarded £500,000 by the national lottery. It reported that the chief executive of the charity had announced the grant on a “private Mermaids Facebook group”, and had told members that she was “very excited [by the] amazing news” but was “not allowed to publicise [it] externally”. The article said that Mermaids was a charity which “campaigns for children to be given prohibited sex change treatment” and “wants to overturn an NHS ban on under-16s being treated with cross-sex hormones”. Against that background, the article reported that the decision to grant the charity the payment had been criticised from a variety of sources.
3. The second article reported that doctors from within the NHS’s only gender clinic for children, had raised concerns that the clinic was “exposing young patients to ‘long-term damage’ because of its ‘inability to stand up to the pressure’ from ‘highly politicised’ campaigners and families demanding fast-track gender transition”. The article said that a report into staff concerns had been commissioned in 2018, and an official review had subsequently been drawn up in response to the criticisms. The article said that the report had found that the clinic had “close relationships with organisations that are identified as part of the pro-trans lobby such as Gendered Intelligence and Mermaids, and [went] to some lengths to placate them.” The article said that sources within the clinic had said that Mermaids were “critical” of the service provided by the clinic and had claimed that claiming that “its refusal to treat children more quickly leads many to attempt suicide”. One staff member was quoted as saying, “We are caught in the middle. We are accused of going too quickly by some people and too slowly by others”.
4. The complainant, Mermaids, said that its Chief Executive had announced the lottery funding on a closed and private Facebook group, which could only be accessed by invitation following a careful vetting process including stringent security checks and a requirement to agree to rules and codes of conduct. The complainant said that the information about the grant had not been made public at the time of publication. It said that accessing the Facebook group, and publishing the comments which were made by the charity’s Chief Executive in the first article, without consent, the newspaper had breached Clause 2 and Clause 10. The complainant said that the journalist’s conduct was of particular concern, given that private and personal matters were discussed on the group, including medical information about children.
5. The complainant also said that the first article was inaccurate, in breach of Clause 1, to report that as a charity, it “campaigns for children to be given prohibited sex change treatment” and “wants to overturn an NHS ban on under-16s being treated with cross-sex hormones”.
6. The complainants said that the headline to the second article had asserted, as fact, that Mermaids and Gendered Intelligence as organisations had harassed staff at the NHS clinic, in breach of Clause 1. It said that this was an unsubstantiated allegation of a serious criminal offence and noted that no examples were given in the article of harassment or alleged harassment in respect of its staff. In response to a request by IPSO, the complainants acknowledged that it had not seen the report, or the clinic’s review into the report’s findings.
7. The newspaper did not accept any breach of the Code. It denied that it had accessed information by use of subterfuge or misrepresentation or in a manner which breached Clause 2. It said that the statement from Mermaid’s Chief Executive had made on a Facebook group with 1,970 members, and had been provided to the reporter by a source who had legitimate access to the group. It said that it was unable to provide further information on this source, in light of the obligations placed upon it under Clause 14 of the Code. It said that article did not reveal details of any individual's private or family lives or correspondence.
8. Without prejudice to this position, the newspaper said that there was a clear public interest in revealing the award of a large sum of public money to a “controversial” charity. It said lottery tickets are bought by millions of people across the UK and the public have a legitimate interest in knowing what the proceeds are being spent on. It noted that as soon as the grant was made public, there was a significant debate, and the Big Lottery Fund launched a review into the award.
9. The newspaper said that it was a matter of public record that Mermaids had repeatedly stated that the NHS ban on under-16s being treated with cross-sex hormones - sex change treatment which is currently prohibited - should be overturned. It said that in written evidence to the House of Commons' Women and Equalities Committee inquiry on transgender equality, Mermaids stated that the age limit of "[greater than] 16 years before cross sex hormones are offered" is an area that "require[s] urgent revision”, and described it as an "arbitrary time limit not related to individual need." The newspaper noted that in oral evidence to the Committee the Chair of Mermaids, said "around 15" was an "appropriate age" for cross-sex hormones.
10. The newspaper disagreed that the headline to the second article had asserted, as fact, that the complainants had harassed staff at the clinic; it noted that the activists accused of harassment were not identified. Without prejudice to this argument, the newspaper provided the following extract from the report into the clinic:
"All of the staff who spoke to me have shown an acute awareness and sensitivity to this very difficult socio-cultural landscape within which the service is operating... However, all of them have been clear that the service has not been able to maintain real neutrality, forming close relationships with organisations that are identified as part of the pro trans lobby such as Gendered Intelligence and Mermaid [sic] and going to some length to placate them... This inability to stand up to the trans lobby has been a major area of concern and also is closely related to the staff fear of intimidation”
11. The newspaper also provided an extract from the review into the report:
“A particular issue that emerged for the trust and clinical staff within the service has been the pressure from strongly held views by various pressure groups, namely the transaffirmative and trans-critical lobbies. This continual interest, critical scrutiny and often very strongly held opinions has created an atmosphere of significant persecution for staff and the need to repeatedly address some of the issues emerging from groups having definite agendas”
12. The newspaper acknowledged that the review had not named the “pressure groups” alleged to have created an “atmosphere of significant persecution for staff” at GIDS, but said that the report, to which the review was responding, repeatedly named the complainants. It said that they were the only pressure groups, of any sort, who were named in the report and, therefore, it was reasonable to conclude that these were the groups to which the review was referring.
Relevant Code Provisions
Clause 1 (Accuracy)
i) The Press must take care not to publish inaccurate, misleading or distorted information or images, including headlines not supported by the text.
ii) A significant inaccuracy, misleading statement or distortion must be corrected, promptly and with due prominence, and — where appropriate — an apology published. In cases involving IPSO, due prominence should be as required by the regulator.
Clause 2 (Privacy)*
i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
ii) Editors will be expected to justify intrusions into any individual's private life without consent. In considering an individual's reasonable expectation of privacy, account will be taken of the complainant's own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.
Clause 10 (Clandestine devices and subterfuge)*
i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.
Clause 14 (Confidential sources)
Journalists have a moral obligation to protect confidential sources of information.
Findings of the Committee
13. The newspaper said that its journalist had been approached by a confidential source who was a member of the Facebook group, having joined it in line with its membership specifications. This was not disputed by the complainant. The newspaper had neither sought to obtain material for publication by use of subterfuge or misrepresentation, nor done so via an agent; the terms of Clause 10 were not engaged.
14. The Committee noted that the Facebook group had privacy settings in place; however, it was a group with a membership of 1,970 people. The comment posted by Mermaids’ Chief Executive and reported in the first article did not reveal any private information; it had disclosed the fact of a publicly funded national lottery grant to the charity, and its Chief Executive’s reaction to it. No private information about members of the group had been disclosed. Taking into account the nature of the information and the fact that it had been disclosed to a large audience, the Committee concluded that the complainant did not have a reasonable expectation of privacy in relation to this information; nor did its publication in the first article under complaint represent an intrusion. There was no breach of Clause 2.
15. It was not in dispute that Mermaids had stated publicly that the current age limit of 16 years before cross sex hormones are offered is an area that "require[s] urgent revision”. It was also accepted that the charity considered 15 to be an "appropriate age" for cross-sex hormones. In those circumstances, it was neither inaccurate nor misleading to report that the complainant “campaigns for children to be given prohibited sexchange treatment” or that it “wants to overturn an NHS ban on under-16s being treated with cross-sex hormones”. There was no breach of Clause 1 in respect of the first article.
16. The Committee acknowledged the complainants' position that the headline to the second article-namely that "activists" were harassing staff at the clinic-would be understood to be a reference to them given that they were named in the text of the article. The complainants said the headline was not presented as a claim, but as established fact, which they said was without basis. The Committee noted that the article reported on a report which had been compiled by the then staff governor of the clinic in which concerns had been identified about the clinic’s "inability to stand up to the pressure" from "highly politicised" campaigners. The article explained, further, that the official review drawn up in response to the report identified lobbying by pressure groups as having created "an atmosphere of significant persecution” and that a minority of clinicians had said that they felt that they were "subject to bullying". The newspaper accepted that the complainants had not been identified in the review, but said that the review had been produced in response to the report in which the complainants were the only pressure groups who were named; this was not disputed by the complainants. The Committee noted the specific references to the complainants in the article: that they are part of the pro-trans lobby which the clinic “went to some lengths to placate”; that one of the complainants had been critical of the service provided by the clinic for not treating children more quickly; and that a member of staff had commented, with reference to one of the complainants, that the staff were caught in the middle and were “accused of going too quickly by some people and too slowly by others”. The Committee considered that, in light of the nature of the article, the headline would be understood to be a reference to the concerns which had been raised in the report and the review, rather than as a statement of unequivocal fact. To the extent that readers would understand the complainants to be the activists to which the headline referred, the Committee found that the headline was not significantly inaccurate in light of the criticisms made in the report of the trans lobby, of which the complainants were identified as being part, and the criticisms made of them, by implication, in the review. The nature of those criticisms was also set out in the article. In those circumstances, the headline was not inaccurate or misleading in breach of Clause 1.
17. The complaint was not upheld.
Remedial Action Required
Date complaint received: 19/02/2019
Date decision issued: 26/09/2019