Decision of the Complaints Committee – 04961-19 Cowan V The Herald
Summary of complaint
1. Gordon Cowan complained to the Independent Press Standards Organisation that The Herald breached Clause 1 (Accuracy) of the Editors' Code of Practice in an article headlined "Appeasement of transphobes is putting our progress at risk" published on 24 June 2019.
2. The article, a comment piece, discussed "proposed reforms to Scotland’s transgender laws" and whether the LGBT community was accepted in Scotland. The columnist argued that the SNP's decision to put the reforms "on hold" was appeasing transphobes for political gain. The columnist was critical of the decision to put the matter “out to consultation” in circumstances where a consultation had already been undertaken which showed "overwhelming public support" for reform. The columnist went on to claim that "the opponents of transgender reform do not have anywhere near the numbers" which the group opposing the abolition of the Section 28 legislation that banned promotion of homosexuality had 20 years ago. The columnist said that the opponents of transgender reform "represent a small minority that has mastered the art of heckling over the heads of the majority".
3. The article also appeared in much the same format online under the headline "Mark Smith: For pity's sake, stop it – the appeasement of transphobes and conservative feminists is putting Scotland's progress at risk."
4. The complainant said that the columnist's claim that the opponents of transgender reform represent a small minority was inaccurate. The complainant said that numerous opinion polls have been conducted on the proposed changes to gender recognition laws, which aim to allow transgender people to self-declare their gender without verification by medical professionals. In each of the polls, public opinion opposed the change by margins of between three to one and four to one. The complainant provided four example opinion polls to demonstrate this.
5. The publication denied that the article was inaccurate. It said that the claim that the opponents of reform represented a small minority, was based the findings of the Scottish Government’s 2018 consultation on the review of the Gender Recognition Act 2004. It said that the consultation had attracted more than 15,500 individual responses, of which 60% (and 65% of Scottish respondents) agreed with the proposal to introduce a self-declaratory system for legal gender recognition. While the Scottish government did not provide a breakdown of the remaining 40%, it was reasonable to infer that they were against the proposal as it would be unlikely for someone to respond if their position was effectively one of abstention. The publication said that the poll was open to the public and attracted responses from both opponents and advocates of the reforms. It emphasised that the function of a government consultation is to gauge public opinion in order to inform future policy decisions. When considering that the term "minority" is generally defined as the smaller number or part, especially representing less than half of the whole or bigger group, it was not misleading to report that opponents of the reform represented a small minority. This, coupled with the high level of responses, which contrasted with the comparatively low samples featured in the opinion polls cited by the complainant, some of which were conducted by groups opposing reforms, meant that it was not misleading for the columnist to rely on the Scottish government’s consultation to support his claim, not least in the context of a comment piece.
6. The complainant disputed that the consultation represented an accurate source for the claim as it was self-selecting, and not weighted to be demographically representative of the population as a whole; it would inevitably attract responses from vested interest groups, who were likely to respond in an organised and disproportionate manner. In contrast, the opinion polls he provided were an accurate gauge of public opinion, as they were demographically weighted to be representative. Regardless of the varying positions of the commissioning bodies, the evidence of public opposition by a majority was consistent.
Relevant Code Provisions
7. 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.
iii) A fair opportunity to reply to significant inaccuracies should be given, when reasonably called for.
iv) The Press, while free to editorialise and campaign, must distinguish clearly between comment, conjecture and fact.
v) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.
Findings of the Committee
8. The article referenced the Scottish government’s consultation which had sought the views of members of the public prior to adopting reforms to Scotland’s transgender laws. The consultation was open to the public and responses could be provided by both advocates and critics of the proposed reforms. More than 15,500 submissions had been received and the Committee noted that the findings of the consultation stated: "the majority of respondents, 60% of those answering the question, agreed with the proposal to introduce a self-declaratory system for legal gender recognition". The Committee acknowledged the results of the opinion polls which had been provided by the complainant, but in circumstances where the article had referenced the government consultation, in which 60% of respondents had supported the introduction of a self-declaratory system, the Committee did not consider that it was significantly misleading for the article to claim that opponents of reform to transgender laws represented a "small minority". There was no breach of Clause 1.
9. The complaint was not upheld
Remedial action required
Date complaint received: 24/06/2019
Date complaint concluded: 25/10/2019