05855-21 Duah v metro.co.uk

Decision of the Complaints Committee – 05855-21 Duah v metro.co.uk

Summary of Complaint

1. Natasha Duah complained to the Independent Press Standards Organisation that metro.co.uk breached Clause 1 (Accuracy), Clause 3 (Harassment), and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article headlined “Transgender people do change their sex – it is discriminatory to say otherwise”, published on 5 May 2021.

2. The article under complaint was an opinion piece, written by a “trans advocate” after the Equality and Human Rights Commission’s (EHRC) response to a prominent legal case, raised by a woman who said “she was discriminated against for her ‘gender critical’ views”. The opinion piece gave the writer’s views on the ‘gender critical’ movement: “[G]ender critical’ beliefs are in my mind the exact definition of extreme views. As the judge said in the original tribunal, they ‘are not worthy of respect in a democratic society.‘ The whole foundation of being ‘gender critical’ is to be vehemently against the right of trans people to participate equally in society as their gender, whether that is socially or legally. The ideology centres first and foremost on the exclusion of trans people and renunciation of everything they are. This is all based on falsehoods about alleged safety risks in gendered spaces such as prisons, shelters and sport, and fear-mongering dogwhistles where individual trans people who did something bad are used as an example to generalise for all trans people. This is dressed up with ‘concerns’ about women’s ‘safety’, despite there being no real evidence that trans inclusion increases risk and violence in gendered spaces — and the fact that trans women in particular are disproportionately affected by gender-based violence.”

3. The article also expanded the headline’s statement that “[t]ransgender people do change their sex”, stating that: “Transgender people in the UK can indeed change their sex, both legally and physically. Health care for trans people includes hormone replacement therapy and various surgeries that do indeed partly change people’s sex and physical characteristics. As someone who has been taking hormones for over 10 years and has had sex reassignment surgery, my sex and physical characteristics are vastly different to those of cisgender men. We are hugely different physically. My sex characteristics have changed to a large degree, such as hair growth, fat distribution, muscle mass and many other health related factors — and my body is driven by oestrogen and progesterone. While some of my physical traits aren’t the same as of a cisgender woman either, it’s simply not accurate to say my sex characteristics have not changed. There is nuance here, something that the statement ‘sex cannot be changed’ ignores.”

4. The article also referred to a prominent public figure “who was accused of being a TERF (trans exclusionary radical feminist) after defending” the woman who originally brought the legal case.

5. The complainant said that the article was inaccurate in breach of Clause 1, as it stated that there was “no real evidence that trans inclusion increases risk and violence in gendered spaces”, and that ‘gender critical’ views were “based on falsehoods about alleged safety risks in gendered spaces such as prisons, shelters and sport”. The complainant said that this was inaccurate firstly because there was evidence to demonstrate that there were “valid safety concerns” for women; she referred to a case where a transgender woman had sexually assaulted fellow prisoners. She also referred to a risk assessment made by a prison, following plans to house “high risk transgender prisoners”, which stated that "[s]ome transgender women pose specific risks to other women which do in part derive from their transgender status. These may be from their offending history (e.g. sexual or violent offences), or may be as a result of their anatomy/physiology (e.g. their size/strength/genitalia). Other women do not, at least in the prison service's experience, tend to pose a similar level of risk.” The complainant also referred to a report commissioned by World Rugby Union, which she said found that there was “an elevated possibility of all injuries, including serious injury” arising from the inclusion of transgender women in rugby.

6. The complainant said that the article was also inaccurate as it misrepresented ‘gender critical’ views. She said that “gender critical feminists believe that sex should not determine gender roles, given the restrictions such proscribed gender roles have put on women in the past” but do not believe that “socially constructed Gender roles should determine or override the material reality of biological sex”. She further said that ‘gender critical’ feminists “fully believe in the right of Transgender people to participate in society as Transgender People, and not to be excluded from any part of society, barring the 6 areas of exemption set out in the 2010 Equality Act, where Parliament determined that biological sex is indeed material, for the dignity, privacy and safety of females, in particular.” As the article did not make this clear, the complainant said that, therefore, it was inaccurate.

7. The complainant further said that the headline of the article and the article itself was inaccurate to state that “[t]ransgender people do change their sex” as she said that sex is an immutable characteristic which cannot be changed. While she accepted that the article expanded on the headline’s claim, she said that it was still inaccurate as it did not acknowledge the “distinction between a personal perspective on a malleable, unverifiable issue of gender identity, and the objective reality of Sex being an immutable characteristic” and was contradicted by the article.

8. The complainant also said that the article’s use of the term “TERF” breached both Clause 3 and Clause 12. She considered the term to be a pejorative term used against gender critical women. She also considered that she had been personally and directly affected by its use, where she considered it to be harassing and discriminatory towards those who held gender critical views.

9. The publication said it did not accept that the Code had been breached. Turning first to the alleged breaches of Clause 1, it noted that the article was an opinion piece and clearly distinguished as such. Regarding the alleged breach of Clause 1 in relation to the writer’s views that there is “no real evidence that trans inclusion increases risk and violence in gendered spaces”, and that ‘gender critical’ views were “based on falsehoods about alleged safety risks in gendered spaces such as prisons, shelters and sport”, it said that the BBC had reported that transgender prisoners in the UK were far more likely to be the victim of sexual assaults in prisons then to perpetrate such assaults. It also referred to reports from the USA, where almost no transgender prisoners are housed according to their gender identity and where there is a higher incidence of assault in US prisons on transgender prisoners due to this – with 35% of transgender prisoners reporting having been assaulted by fellow prisoners or staff. It then referred to a study conducted in the USA, which found that “[t]here is no evidence that letting transgender people use public facilities that align with their gender identity increases safety risks”. The lead author of the study had also commented that “opponents of public accommodations laws that include gender identity protections often claim that the laws leave women and children vulnerable to attack in public restrooms… this study provides evidence that these incidents are rare and unrelated to the laws.” The publication also said that concerns about the safety risks posed by transgender participation in single-gender sporting events had been disputed by a number of reputable sources, noting that academics from around the world had condemned World Rugby’s decision to prohibit trans women from participating in the sport, and national bodies such as USA Rugby and Canada Rugby had said that they would ignore any such ban in domestic competitions.

10. Given the fact that it was able to provide evidence and studies that contradicted the complainant’s position that it was inaccurate to state that there is “no real evidence that trans inclusion increases risk and violence in gendered spaces”, the publication considered that it was a clear that this was not a matter of established fact, as there was a lack of statistical evidence to support the complainant’s position. Rather, it considered that it was a matter of ongoing debate and the writer was entitled to express her opinion on the quality of the evidence in a clearly distinguished opinion column.

11. The publication said that the purpose of Clause 3 was to protect individuals who are directly or indirectly featured in news stories, or who are the subjects of approaches from journalists. Given this, it did not accept that the terms of Clause 3 were engaged by the complainant’s concerns.

12. Turning to the complainant’s Clause 12 concerns, the publication said that the terms of the Clause do not relate to generalised remarks about groups or categories of people. Therefore, it said, the terms of Clause 12 were not engaged by the complainant’s concerns.

13. The complainant reiterated that she did not consider that it was possible to change sex, noting that an editorial in the British Journal of General Practice had stated that “[i]t is not possible to change biological sex”. The complainant also said that, contrary to the headline’s claim that it is “discriminatory” to say that people cannot change their sex, a judgment handed down after the article’s publication had, she considered, said otherwise. She also said that, contrary to the article’s statement that transgender people can “change their sex […] legally”, Sections 12, 15, and 16 state that transgender people are legally recognised as their birth sex rather than their acquired gender for the purposes of parenthood, succession, and peerages.

14. The complainant further said that the data provided by the publication from non-UK sources was not relevant to their complaint, which centred on an article by a UK publication relating to UK culture and legislation. The complainant further said that a study had found that unisex-changing rooms are more dangerous for women and girls than single-sex facilities, and that very few women had been convicted of sexual offences. The complainant also highlighted studies which it said had found that transgender women had a benefit over their fellow competitors when competing in gendered sport events.

15. The complainant then said that her complaint could only be resolved should the publication remove the article and append a note clarifying what she considered to be the legal errors within the article, in particular the characterisation of gender critical views as “extreme”, as she considered this was in contradiction to a legal judgment which had been passed down after the article’s publication.

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.

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.

Clause 3 (Harassment)*

i) Journalists must not engage in intimidation, harassment or persistent pursuit.

ii) They must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist; nor remain on property when asked to leave and must not follow them. If requested, they must identify themselves and whom they represent.

iii)  Editors must ensure these principles are observed by those working for them and take care not to use non-compliant material from other sources.

Clause 12 (Discrimination)

i) The press must avoid prejudicial or pejorative reference to an individual's, race, colour, religion, sex, gender identity, sexual orientation or to any physical or mental illness or disability.

ii) Details of an individual's race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability must be avoided unless genuinely relevant to the story.

Findings of the Committee

16. The Editors’ Code makes clear that the press is entitled to campaign, be partisan, and express an opinion; it is also entitled to publish the views of individuals. However, there remains an obligation under the Clause 1 to take care over the accuracy of any claims of fact made within a comment piece and to distinguish between comment, conjecture and fact. A question for the Committee was, therefore, whether the statements that “no real evidence that trans inclusion increases risk and violence in gendered spaces”, and that ‘gender critical’ views were “based on falsehoods about alleged safety risks in gendered spaces such as prisons, shelters and sport” were presented as fact or comment.

17. The Committee was mindful of the context of the article. It appeared in the Comment section of the publication’s website, was written in a polemical and opinionated style, and was attributed to a writer who was described in a biography attached to the article as a “trans advocate.” It was, therefore, clearly presented as a comment piece, reflecting the views of an individual publicly involved in public debate around this subject area. The Committee then turned to the nature of the claim itself, noting that both the complainant and publication had provided evidence which, respectively, supported and contradicted the claim “that trans inclusion increases risk and violence in gendered spaces”. It was therefore, clearly, a matter of ongoing debate and not a matter of settled fact. The Committee then considered the presentation of the claim within the piece: the article stated that there “was no real evidence that trans inclusion increases risk and violence in gendered spaces”, and this assertion was used to support the writer’s assertion that “gender critical” views were “based on falsehoods about alleged safety risks in gendered spaces such as prisons, shelters and sport”.

18. Taking all factors into account, the Committee was satisfied that the claims that there was “no real evidence that trans inclusion increases risk and violence in gendered spaces”, and that ‘gender critical’ views were “based on falsehoods about alleged safety risks in gendered spaces such as prisons, shelters and sport” were distinguished as the opinions of the article writer. In the context of a polemical comment piece, these excerpts expressed the writer’s opinion about the adequacy and limitations of the evidence which supported the “gender critical” viewpoint the author criticised in the article; the use of the phrase “real” made clear that the writer of the piece was expressing a value judgment about the quality of the evidence, rather than claiming that no such evidence existed. The author was entitled to express an opinion on the adequacy of the evidence in a matter of ongoing debate, provided in doing so they clearly distinguished comment from fact, in line with Clause 1 (iv). The article did so, and there was therefore no breach of Clause 1 on this point. The Committee, in making this finding, commended the prominence of the ‘comment’ tagline, and the clear byline attribution, which clearly distinguished the article as comment.

19. The complainant had said that the article misrepresented “gender critical” views, where it did not make clear what the complainant considered to be the actual views of gender critical feminism.  The Committee noted that expressing criticism of the views of groups or individuals is not prohibited by the terms of the Code; nor is the Press required by the Code to be balanced or unbiased. Nonetheless, publications must demonstrate that care is taken over the accuracy of any claims of fact. The Committee was satisfied that, in the context of a polemical comment piece, the writer’s characterisation of the “gender critical” movement was clearly distinguished as their characterisation rather than established fact. For example, by stating that “’gender critical’ beliefs are in my mind the exact definition of extreme views” [emphasis IPSO], the article made clear that these were the views of the article’s author on “gender critical” views, rather than established fact. There was no breach of Clause 1 on this point.

20. Turning next to the alleged breach of Clause 1 arising from the headline, the Committee noted that it was not a requirement of the Code – or feasible – for headlines to include the entire context of an article; headlines are intended to be read in conjunction with articles, and act as a summary of the article itself. Nevertheless, Clause 1 makes clear that headlines must be supported by the text of the article; an article cannot act as a correction to a headline which is inaccurate, misleading, or distorted.

21. The headline was a summary of the article’s central argument – that “[t]ransgender people in the UK can indeed change their sex, both legally and physically”. The basis for this was expanded on in more detail in the article itself. The headline was, therefore, supported by the article and – read in context with the article as a whole – was clearly distinguished as the writer’s opinion.  The Committee noted the complainant’s concern regarding the headline statement that it was “discriminatory” to say that “[t]ransgender people can change their sex” as it contradicted a later legal judgment. The Committee also noted that this was a matter of ongoing debate, and that the tribunal appeal judgment had been published after the publication of the article under complaint – and, therefore, could not have factored into the newspaper’s pre-publication considerations. Nevertheless, the headline was clearly distinguished as the writer’s opinion, which the publication was entitled to publish. Where the headline statement was distinguished as the writer’s opinion, there was no breach of Clause 1.

22. While the Committee noted that the complainant had concerns regarding the use of the term “TERF”, the term was not used to refer to the complainant either explicitly or implicitly. As she was not referred to in connection to the term TERF, she was not directly and personally affected by its use in the article, and the terms of Clause 3 and Clause 12 were therefore not engaged.

Conclusions

23. The complaint was not upheld.

Remedial Action Required

24. N/A

 

Date complaint received: 28/05/2021

Date complaint concluded by IPSO: 04/10/2021

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