08884-21 Trans Legal Project v The Daily Telegraph

Decision of the Complaints Committee – 08884-21 Trans Legal Project v The Daily Telegraph

Summary of Complaint

1. Trans Legal Project complained to the Independent Press Standards Organisation that The Daily Telegraph breached Clause 1 (Accuracy) of the Editors’ Code of Practice in two articles headlined “Patient safety fears after NHS trusts allow trans sex offenders in female-only wards / ‘Patients are not getting the dignity they deserve’” and “Fears for patients over trans access misuse”, both of which were published on 3rd August 2021.

2. The article headlined “Patient safety fears after NHS trusts allow trans sex offenders in female-only wards / ‘Patients are not getting the dignity they deserve’” appeared on the front page of the newspaper, before continuing onto page 4. It reported that “[m]ale-born sex offenders who self-identify as women can be placed on female-only NHS wards, hospital trusts have said in guidance” before stating that “Devon, Oxford and Nottinghamshire hospitals all say that a criminal history should be part of a risk assessment when placing male-born people on female-only wards, but do not say that it is a bar to admission.” The article also reported that the publication had “found that NHS Trusts across the country have issued guidance that says patients should be admitted based on the gender they identify with”, and went on to include a statement from Oxford Health NHS Trust which stated that the “risk of sexual offending in a trans context is very rare […but...] where there is a significant risk” the trust would “apply the same robust mitigation that we would to a non-trans patient to ensure a safe therapeutic environment.”

3. The article referred to “Devon Partnership NHS Trust guidance” which it quoted as stating that patients “will be admitted based on the gender which they identify with at the point of admission”. It also paraphrased the guidance as saying that admission “will not be based on physical characteristics or the person proving they have legally changed their gender or name, as they claim this is illegal”. It then included a paraphrased quote from a spokesperson for the Trust, which stated that the matter “was ‘a sensitive issue’ and that it was reviewing the policy to ensure ‘the safety of our patients and staff’”.

4. The article headlined “Fears for patients over trans access misuse” reported that “a physically intact male had the right to choose to be accommodated on a female ward and to use women’s lavatories and facilities” as “a result” of “an instruction by NHS England”. The article then reported that “[t]here is no requirement for the person to have begun to legally change their gender, as is specified under equality laws” before stating that “[h]ospitals are exempt from the Equalities Act, and the NHS guidelines both ignore this fact and go further than Parliament in saying that people should be allowed into single-sex wards based not on their legal gender but the one in which they self-identify”. It also reported that at least one hospital trust had said that there "may be instances when further consideration may be needed as to how best to manage a trans patient". The article ended with a comment from the NHS, which stated that “[h]ospitals […] follow[…] the legal requirements established by Parliament.”

5. Both articles appeared online under a single headline: “Patient safety fears as NHS allows trans sex offenders in female-only wards”. The online article included an additional sub-heading, prior to the paragraphs relating to the relevant legislation, which read “Equalities Act exemption”.

6. The complainant said that both articles misrepresented the relevant guidance and suggested that it was new, when in fact it had been in place for some time. It said that the headlines of the first print article and online article were not supported by the text of the articles, which made clear that hospital trusts carry out risk assessments before placing any patient with a criminal history (including trans people) on single-sex wards. It further said that it considered that the headline of the online article framed the story as a “new and somehow threatening development” in a misleading and distorted manner. In fact, it said, the legislation which underpinned the guidance had been in place for over a decade. It then said that it was not accurate to report that “male-born sex offenders who self-identify as women can be placed on female-only NHS wards”, as the guidance showed that placements were based on the patient’s presentation, rather than solely on self-identification.

7. The complainant, turning to the second article, said that it was inaccurate to report that “[h]ospitals are exempt from the Equalities Act”. It said that hospitals are not exempt from the Equality Act 2010, which in fact made specific reference to separate sex services in stating that people with the protected characteristic of gender reassignment should be treated “according to the gender role in which they present” and that exceptions should apply only “in exceptional circumstances […] on a case-by-case basis”. The complainant then noted that the hospital trusts quoted in the article all seemed to be acting in line with this legislation, generally placing transgender women in female-wards but refusing access where justified.

8. The complainant also disputed a claim in the second article that “[t]here is no requirement for the person to have begun to legally change their gender, as is specified under equality laws”, as no equality law requires that a transgender individual needs to have begun a legal process before they are afforded protection in their lived gender – such as the right to be housed on a single-sex ward.

9. The publication denied any inaccuracy in the first and online articles, and emphasised that it was not in dispute that, as the articles reported, safety concerns had been raised in relation to transgender sex offenders being placed on single-sex wards. The basis for both the print and online headlines were set out in the article, and that therefore the headlines were supported by the text of the articles. It noted that the article headlines did not claim that trans sex offenders were routinely being placed on single-sex wards.

10. The publication accepted that the claim that “[h]ospitals are exempt from the Equalities Act” did not reflect the correct legal position on the matter. The reference had been intended to convey the fact that the Act states that single-sex services are permitted where “they are provided in a hospital or other place where users need special attention (or in parts of such an establishment)”, but it accepted that the phrasing indicated that hospitals were exempt from all provisions of the act.

11. To address this, the publication published the following wording in its usual Corrections & Clarifications column, on 11 August 2021, 6 days after it was made aware of the complaint:

"Patient safety fears after NHS trusts allow trans sex offenders in female only wards” (Aug,3) reported that hospitals were exempt from the Equalities Act and did not have to admit patients to single sex wards that did not match their legal gender. In fact, hospitals are only exempt from some provisions and under the Act have to admit people to single sex spaces based on the gender they present as, except in exceptional circumstances. We are happy to correct the record.

12. The publication also added the following footnote to the online version of the article, on 10 August 2021:

An earlier version of this article reported that hospitals were exempt from the Equalities Act and did not have to admit patients to single sex wards that did not match their legal gender. Hospitals are only exempt from some provisions and under the Act have to admit people to single sex spaces based on the gender they present as, except in exceptional circumstances. The article has been amended.

The article was also amended 10 August 2021 to make clear that hospitals are exempt from “parts of” the Equalities Act and that some NHS Trust guidelines both ignore this fact and go further than Parliament in saying that people should be allowed into single-sex wards based not on their gender presentation but the one in which they self-identify”.

13. The complainant was not satisfied with the publication of the correction and footnote, and said that – since making its first complaint to IPSO – it had become aware of additional inaccuracies within the article. The complainant flagged these inaccuracies with the publication during the 28-day referral period; this is the period of time which allows for the publication and complainant to resolve the matter directly, prior to IPSO’s investigation.

14. The complainant said that there were further inaccuracies in relation to the Devon Partnership NHS trust guidance. It said that the guidance referenced in the article was not in effect at the time the article was published and that, in any event, the referenced guidance was misrepresented. It questioned the accuracy of any reference to the guidance cited given that the Trust had announced 8 months previously that this was under review. It provided an email in which the Trust confirmed that the guidance had been removed from its website (although the email did not say that it was withdrawn). It said that in these circumstances, a separate piece of guidance by the Trust should have been cited, which stated that “Transgender people should be accommodated according to their presentation (the way they dress, and the name and pronouns that they currently use).” In any event, the complainant said that neither piece of guidance supported the claims in the article that patients "will be admitted based on the gender which they identify as at the point of admission”, “it will not be based on physical characteristics or the person proving they have legally changed their gender or name” and that “transgender people must be able to use the facilities of their preferred gender while admitted”. Neither piece of guidance would give transgender sex offenders the right to be placed on female wards based solely on self-identification; the determination would be made by the hospital and would be based on a range of factors, including risk posed to fellow patients.

15. The complainant then identified a further inaccuracy within the second article, which reported that “a physically intact male had the right to choose to be accommodated on a female ward and to use women’s lavatories and facilities” as “a result” of “an instruction by NHS England”. It said that it was clearly inaccurate that a cisgender man would have the right to be accommodated on a female ward and that – if the phrase “physically intact male” was intended to refer to transgender women – that the right for transgender women to be housed on a female ward was in fact a qualified right. NHS guidance, the complainant said, makes clear that the right for a transgender woman to access female-only facilities in hospitals can be overridden should there be a proportionate reason to do so and doing so would achieve a legitimate aim. The complainant further said that NHS England policy clearly stated that transgender women with male genitalia cannot use open showers intended for women, and explicit NHS guidance indicates a requirement for “sufficient privacy” to maintain the dignity and privacy of everyone – by way of the use of, for instance, privacy curtains and screens. The complainant provided copies of the relevant NHS England guidance, as well as guidance from four NHS Trust Foundations.

16. Regarding the admittance of transgender patients to single-sex wards, the guidance provided by the complainant said as follows:

Trans people should be accommodated according to their presentation: the way they dress, and the name and pronouns they currently use. […] It applies to toilet and bathing facilities (except, for instance, that preoperative trans people should not share open shower facilities). [NHS England, Delivering same-sex accommodation]

17. The complainant said that only the removal of the online version of the article would address its concerns and resolve the complaint.

18. The publication noted that a paraphrased quote from a spokesperson for Devon Partnership NHS Trust made clear that it was “was reviewing the policy to ensure “the safety of our patients and staff”; the publication also noted that no new guidance had been produced which superseded the under-review guidance. Therefore, it did not accept that it was inaccurate, misleading, or distorted for the article to report on the guidance under review.

19. The publication then said that it was satisfied that the articles accurately reported on the relevant NHS guidance, and said that Trusts which “allow patients to choose which wards they are treated on, on the basis of self-identification rather than their presentation” go beyond what was required of the Equality Act. However, to avoid confusion, it amended the article on 14 October 2021 to remove the word “legally” from the following sentence: “[t]here is no requirement for the person to have begun to legally change their gender, as is specified under equality laws”. It said that this was done to avoid confusion between the requirements of the Equality Act and the Gender Recognition Act, though it noted that the latter piece of legislation was not referenced anywhere in the coverage under complaint.

20. It further noted that the complainant was not complaining on behalf of any of the Trusts referenced within the articles, and therefore was not in a position to have a direct understanding of the various Trusts’ position on the admission of transgender patients.

21. The publication, noting that should the complaint be upheld by IPSO it could not require the removal of the online article, declined to remove it to resolve the complaint. Finally, it said that the thrust of the articles was not “focused on how self-identification is defined, and the shades of difference between gender presentation, self-identification, gender reassignment etc”. Rather, the articles reported on how “trans patients who pose safety and security concerns for other patients on a ward are not being adequately evaluated and Trusts are not making appropriate use of their ability to deny access to single-sex wards and thus leaving patients vulnerable. The article correctly states that a criminal history of serious sexual offending is not deemed a bar to admission onto a single sex ward, and in many cases risk assessments are not even carried out.”

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.

Findings of the Committee

22. The focus of the article was on hospitals’ treatment of transgender patients pursuant to issued guidance and the legal requirements. The publication had accepted that the claim in the second article that “[h]ospitals are exempt from the Equalities Act” was inaccurate; hospitals are bound by the Equalities Act subject to exceptions, which apply “in exceptional circumstances […] on a case-by-case basis”. The publication also appeared to accept that there was no requirement under the Equality Act for an individual to have begun the process of “legally changing their gender” before being afforded the right to be housed in a hospital ward according to their gender identity. While the publication said that it had consulted the Act before publication, the publication of these inaccuracies on a matter of public record – the content of the relevant legislation – represented a failure to take care over the accuracy of the article in breach of Clause 1 (i). Given that the focus of the article was on hospitals’ treatment of transgender patients pursuant to their legal obligations, the inaccuracies regarding the details of those obligations were significant and required correction.

23. The publication had published a print correction, and had amended the online article and added a footnote correction, to address the inaccuracy in the second print article and in the online article concerning the Equalities Act. The correction was made promptly – 5 and 6 days after it became aware of the complaint about the online article and the print article respectively – and appeared in duly prominent positions, as a footnote to the amended online article and within an established corrections and clarifications column on page 2 of the newspaper. The article had also been amended a further time, 2 months after the publication was made aware of the complaint, to remove the word “legally” from the passage which referenced the requirements of equality laws; however, this point was already covered in the wording of the footnote correction, which had been published two months prior and made clear that “under the Act [hospitals] have to admit people to single sex spaces based on the gender they present as, except in exceptional circumstances” – therefore the true position was made clear prior to the second amendment.

24. The Committee noted that the wording of the print correction included a slight error – it referenced the first article under complaint as being the article in which the inaccuracy had been published, rather than the second – but the Committee did not consider this affected the adequacy of the remedy; readers would be able to locate the original article in need of correction, since  both articles appeared on the same page of the print edition and addressed the same topic. There was, therefore, no breach of Clause 1 (ii) on this point.

25. The second print article had reported that “a physically intact male had the right to choose to be accommodated on a female ward and to use women’s lavatories and facilities” as “a result” of “an instruction by NHS England”. The complainant challenged this on the basis that this suggested inaccurately that hospitals made decisions based on self-identification rather than the presentation of patients; that it was not a “right” because the hospital could make a decision should there be a proportionate reason to do so and if doing so would achieve a legitimate aim; and that the article did not make clear that there was an exception relating to open shower facilities.

26. The Committee noted the wording of NHS England’s guidance, which stated that: “Trans people should be accommodated according to their presentation: the way they dress, and the name and pronouns they currently use. […] It applies to toilet and bathing facilities (except, for instance, that preoperative trans people should not share open shower facilities)”.  The Committee took into account that the wording of the guidance was set out in the article immediately before the passage under complaint. The Committee did not consider that the newspaper’s characterisation of the effect of the guidance was significantly inaccurate; rather than speaking in terms of “self-identification” or “presentation” it was making the broader point about the way in which the NHS guidance allowed a patient to influence the decision by making personal choices, which might include the way a person chooses to dress, and the name and pronouns by which they choose to be called. Read in its entirety, and where a Trust’s spokesperson was elsewhere quoted as saying that “there may be instances when further consideration may be needed as to how best to manage a trans patient",  the article was not claiming that the decision as to which ward a patient is to be admitted can be made solely on the part of a patient with no input from the hospital Trust in question. Therefore, omitting a further express reference to the risk assessments that some trans patients would undergo before being admitted to wards based on their choice of gender-presentation did not make the article significantly misleading, inaccurate, or distorted on this point in breach of Clause 1.

27. The Committee then noted that the wording of the article, “lavatories and facilities”, closely echoed the phrase used in the guidance, “toilet and bathing facilities”; it did not consider that the omission of the detail relating to open showering rendered the reference misleading or inaccurate, where it was not in dispute that it was the case that trans women in prisons who had not undergone gender reassignment facilities did have the right to use the facilities of their lived gender, barring specific exceptions.

28. The Committee turned next to the headline of the first article, which the complainant said was not supported by the text of the article because it did not make clear that hospitals would also undertake a risk assessment.  The complainant also said that the headline, and the headline of the online article, misleadingly suggested that they were reporting on a new development. Headlines are necessarily summaries of the content of articles and the first article made clear that a risk assessment ought also to be undertaken in such circumstances, but concerns had been expressed that this was not always the case. The publication was entitled to report on matters which it considered to be of interest to its readers, in this case concerns which had been expressed about patient safety in hospitals; the headlines did not suggest that the guidance was new and patient safety concerns were considered in light of the prevailing guidance and legislation. Where the headlines were supported by the text of the articles and were not misleading, there was no breach of Clause 1.

29. The complainant had also said that it was inaccurate for the first and online article to report that that “male-born sex offenders who self-identify as women can be placed on female-only NHS wards”. The Committee noted that the articles did not report that self-identification was the sole criteria which would be considered or that such offenders would necessarily be treated in this way without any further risk assessments being undertaken. Where the guidance of at least 3 NHS Trusts did not state that a history of sexual offences was a bar to admittance to female wards, the Committee did not consider the article to be inaccurate in breach of Clause 1 on this point.

30. The complainant had also raised concerns that the article both misrepresented the guidance issued by NHS Trusts and inaccurately reported that guidance from Devon Partnership Trust was still in place. The Committee acknowledged the complainant’s point that the guidance issued by many NHS Trusts referred to presentation rather than self-identification, but noted that the guidance issued by one NHS Trust mentioned in the article referred to self-identification. The guidance of the other NHS Trusts mentioned in the article had been quoted, together with comments about the issued guidance which had been made by the Trusts. The article made clear – via a quote from Devon Partnership Trust – that the Devon guidance referenced in the article was under review, but it had not been formally withdrawn. The newspaper was entitled to reference it, and the references to it in the article were not inaccurate. There was no breach of Clause 1 on these points.

Conclusion(s)

31. The complaint was partly upheld under Clause 1 (i).

Remedial Action Required

32. The published correction put the correct position on record and was offered and published promptly and with due prominence. No further action was required.

Date complaint received: 03/08/2021

Date complaint concluded by IPSO: 14/02/2022

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