16423-23 Green v The Sunday Times

Decision of the Complaints Committee – 16423-23 Green v The Sunday Times

Summary of Complaint

1. Susie Green, acting on her own behalf and on behalf of her daughter Jackie Green, complained to the Independent Press Standards Organisation that The Sunday Times breached Clause 1 (Accuracy), Clause 2 (Privacy), Clause 3 (Harassment), and Clause 12 (Discrimination) of the Editors’ Code of Practice in an article headlined “The kids’ gender clinic that became a conveyor belt”, published on 11 February 2023.

2. The article reported on the aftermath of the closure of the Tavistock and Portman NHS Foundation Trust’s Gender and Identity Development Service (Gids). It referenced the charity Mermaids and its previous Chief Executive, the complainant Susie Green. The article reported that “[a]ctivist groups from outside, such as Mermaids […] came to exert undue influence on [Gids] and would complain if they felt things weren’t being done their way”. The article then reported that:

“[i]n 2016 an expert in gender reassignment surgery warned Gids that putting young boys on puberty blockers made it more difficult for them to undergo surgery as adults, because their penis hadn’t developed enough for surgeons to construct female genitalia. […] But senior managers rejected calls from its clinicians to put this on a leaflet for patients and families.  In [a] book, [a previous staff member at Gids] is quoted as saying, ‘I may be wrong, but I think [the director of Gids] was afraid of writing things down in case they got into Mermaids’s hands.’”

3. The article then referred again to: “Susie Green […] the chief executive of Mermaids”, stating that she “had taken her son [Jackie Green], who had been on puberty blockers, to Thailand for gender reassignment surgery on his 16th birthday. In an interview, which is still on YouTube, Green laughingly recalls the difficulties surgeons had in constructing a vagina out of her child’s prepubescent penis.”

4. The article was accompanied by a photograph showing Susie and Jackie Green. The photograph was captioned “Susie Green with her daughter Jackie, who had gender reassignment surgery aged 16”.

5. The article also appeared online in substantially the same format, under the headline “How the Tavistock gender clinic ran out of control”.

6. The complainant said that the article was discriminatory in breach of Clause 12. The complainant said that her daughter was not relevant to the article – which was about Gids – and therefore her gender identity as a transgender woman was also irrelevant.

7. The complainant also said that the article had breached Clause 12 by referring to Jackie as her “son” and by using male pronouns in relation to her, as this misgendered her in a pejorative manner. She said that her daughter had lived as a girl since she was nine-years-old, and was a girl at the time referred to in the article.

8. Turning to Clause 2, the complainant said that her daughter had no involvement with Mermaids and was not a public figure. Therefore, it said, her daughter had a right to privacy which had been breached by the article. The complainant said that the reference to the YouTube video – in which she discussed her daughter’s surgery – and the fact that the article reported on the surgery at all breached her daughter’s privacy. In addition, the complainant said that the article breached her own private life by referring to her family.

9. The complainant also said that the article was inaccurate in breach of Clause 1, as it had used male pronouns to refer to her daughter at the time of her gender affirmation surgery – at which time she was living as a girl, “including pronouns and a full social and medical transition”.

10. The publication did not accept that the article breached the Code. It said that the article’s use of male pronouns in relation to Jackie Green was intended only to provide clarity to readers as to “the intention of the surgery” and Jackie Green’s “current status”. It said that is “absolutely recognise[d]” her current gender, but said that it must be able to report on past events in a way that was coherent – it did not accept, therefore, that the use of male pronouns to refer to her prior to her surgery was either pejorative or inaccurate. In making this point, the publication referred to a Ted Talk (since removed), during which the complaint had herself referred to Jackie prior to her transition as her “son”. The publication’s approach when dealing with Jackie Green’s life pre-transition was, it said, no different from the complainant’s own approach when speaking publicly about her daughter. At any rate, the publication did not accept that the article referenced Jackie Green’s gender identity – it said that it only referenced her “legal and biological sex” at the time of her surgery.

11. The publication further noted that Jackie Green was only named once in the article – in the photograph caption – and that this caption referred to Jackie Green as the complainant’s daughter. The use of male pronouns, therefore, were not tied to Jackie Green as she was now, but in reference to a television interview which the complainant had given about her gender affirmation surgery, and a Ted Talk during which she had spoken in depth about Jackie’s life. The publication further said that the reference to Jackie Green’s surgery was relevant in the context of an article which discussed the process of gender transition for children, and where the complainant – as a previous Chief Executive of a charity working with trans and non-binary children – and her own background had a clear relevance to the subject matter of the article.

12. Turning to the complaint of intrusion into the private lives of the complainant and her daughter, the publication said that it was the complainant who had chosen to put Jackie Green’s case in the public domain, “giving widely viewed public talks and numerous interviews naming her and giving intimate and extensive details of her story”. It also said that the complainant had herself linked Jackie’s story with her own role at Mermaids. It cited a newspaper interview in which the complainant had spoken of an ITV television drama inspired by the case. With regard to the YouTube video showing a broadcast interview which was referenced in the article, the publication said that the video was publicly accessible and had over 19,000 views on YouTube.

13. The complainant accepted that she had referred to Jackie as “her son” in the past; however, this was to refer to her when she was six – before she transitioned socially – rather than when she was sixteen. She did not accept that this meant the publication was entitled to refer to her daughter using male pronouns.

14. The complainant said that her daughter had been absent from the public eye for many years; even if she had previously engaged with the press in the past, that did not give the publication the automatic right to continue to disclose details of Jackie’s private life years after she had withdrawn from the public eye. The complainant also said that she herself had not referenced her daughter publicly in many years, due to her daughter’s request.

15. The complainant also said that Jackie was protected by the 2010 Equality Act from the point at which she came out as trans at the age of four. Therefore, she said that her legal gender at the time of her surgery was female and the publication had breached Clause 12 and Clause 1.

16. The complainant also, during IPSO’s investigation, said that she considered that the terms of Clause 3 had been breached, by way of the publication referring to Jackie as her “son” and by using male pronouns. In making this complaint, the complainant referenced a 2019 article published by the newspaper which had also referred to Jackie in this manner. The complainant had complained to IPSO about the 2019 article but had not pursued the complaint beyond its initial stages at the time.

17. The publication said that government guidance made clear that an individual must hold a Gender Recognition Certificate if they wish for their affirmed gender to be legally recognised. As Jackie Green did not hold such a certificate at the time of her surgery, the publication did not accept that it was inaccurate or pejorative for the newspaper to use male pronouns to refer to her at this time – she was still, according to the publication, ‘legally’ male at this time.

18. The publication also said that the terms of Clause 3 relate to the behaviour of journalists during the newsgathering process, and did not accept that the concerns raised by the complainant represented a possible breach of Clause 3.

Relevant Clause 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 2 (Privacy)*

i) Everyone is entitled to respect for their private and family life, home, physical and mental 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 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

19. An important factor in the Committee’s consideration of this complaint was the material already established in the public domain about Jackie Green’s gender identity and gender transition. This included information that had been disclosed by Susie Green; information that had been disclosed by Jackie Green as a child (with Susie Green’s consent); and information disclosed by Jackie Green as an adult. The Committee considered both the nature of this material, and the way in which it had been contextualised. The Committee also took into account that, since the information had originally been disclosed by the complainant and her daughter, Jackie Green had chosen to step back from public life.

20. The terms of Clause 2 make clear that, when considering an individual’s reasonable expectation of privacy, account should 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. The information disclosed by the article – the fact that Jackie Green had undergone gender affirmation surgery at the age of sixteen, and her mother’s comments about the surgery – had been disclosed previously in talks, broadcast interviews, and interviews with print newspapers, some of which remained online.

21. Taking these factors into account the Committee found that the article did not disclose any information beyond what had been made public; it had not disclosed additional information about Jackie that had not previously been in the public domain as a result of disclosures from the complainant. While it acknowledged that Jackie Green’s attitude toward public disclosures about these matters had changed over time, the Committee considered that the complainant and her daughter did not have a reasonable expectation of privacy over the information under complaint given the extent of this publication. The publication was entitled to refer to such publicly accessible information, and reporting on it did not represent an intrusion into either the complainant’s private and family life or that of her daughter. There was no breach of Clause 2.

22. The Committee next considered the complaint under Clause 12. It was evident that the article made reference to Jackie Green’s gender identity; it referred to her as previously having been the complainant’s “son” and used male pronouns; made reference to her gender affirmation surgery and described the nature of this surgery; and used female pronouns to refer to her in the period after her surgery.  The question for the Committee was whether these references were irrelevant or pejorative.

23. In deciding whether the reference was relevant, the Committee considered the reference in the context of the article as a whole. It noted that the reference to Jackie’s previous gender identity and surgery appeared in the context of a reference to a “warn[ing]” made in 2016 that putting transgender girls “on puberty blockers made it more difficult for them to undergo surgery as adults”, as well as a claim that a call to put a warning to this effect in public-facing literature circulated by Gids was vetoed as “[the director of Gids] was afraid of writing things down in case they got into Mermaids’s hands.’” Read in this context, Jackie’s gender identity and her experiences of having undergone gender reaffirmation surgery – as well as her mother’s comment about the surgery – were relevant to the story. The reference served to provide context to the complainant’s campaigning work and background, and how her own experiences – and, by extension, the experiences of her daughter as a transgender woman – informed her campaigning role, as well as potentially connecting to Gids’ decision to not refer to the alleged drawbacks of puberty blockers in writing. In addition, the article did not disclose any information about the complainants which had not already been previously disclosed. There was, therefore, no breach of Clause 12 (ii).

24. The complainant had also said that the use of male pronouns to refer to Jackie at the time of her surgery was pejorative in breach of Clause 12 (i). The Committee considered that, in the context of a reference to Jackie’s gender affirmation surgery, and where Jackie was referred to as the complainant’s daughter in the caption of an image showing her after her surgery, the use of male pronouns were not prejudicial or pejorative. Rather, the pronouns conveyed to readers that Jackie had undergone a gender transition, the use of “he” pronouns referenced the sex she was assigned at birth. There was no breach of Clause 12.

25. It was clear on reading the article in its full context that Jackie Green is a transgender woman. The Committee did not consider that the brief references to Jackie prior to her surgery represented significantly inaccurate, distorted, or misleading information – particular in the context of an article focussing on Gids, rather than on the specifics of Jackie Green’s transition. There was no breach of Clause 1.

26. The Committee did not accept that the terms of Clause 3 must relate only to the behaviour of journalists during the newsgathering process; while Clause 3 (ii) makes specific reference to the physical presence and activity of journalists, Clause 3 (i) is broader and says that journalists and publications must not engage in certain behaviours, which include intimidation and harassment.

27. Harassment and intimidation implies a pattern of behaviour; however, the complainant had only referenced one article, published in 2019 – three years before the publication of the article under complaint. The Committee did not consider that two articles, published 3 years apart and which – in relation to the 2022 article – referred to Jackie Green only in passing, constituted harassment as defined by the terms of Clause 3. There was therefore no breach of this Clause.

Conclusions

28. The complaint was not upheld.

Remedial action required

29. N/A

 

Date complaint received:  12/02/2023

Date complaint concluded by IPSO:  06/07/2023

 

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