Fair Play For Women welcomes the publication of IPSO’s draft guidance on the “Reporting of Sex and Gender Identity” but some areas require further work. We will be submitting views via the public consultation on the IPSO website and encourage members of the public to do the same before the deadline of Friday 10th March 2023.
It’s a useful step forward to see the title of the new draft guidance covering the reporting of both “sex” and “gender identity” rather than being narrowly presented as “transgender guidance”. Treating sex and gender identity as two different things is the right starting point for journalists and emphasizes the fact they should not be conflated or used interchangeably. However, the guidance then fails to treat them differently. Generic advice is given, applying to both as if they are the same. This opportunity for clarity is missed in two areas: accuracy and privacy.
For the avoidance of doubt we are using the term “sex” to refer to an individual’s biological/birth sex which is either male or female. The term “gender identity” is a personal and subjective sense of self-identity.
a) Presenting gender identity as if it is sex.
This draft guidance does not address the current problem where newspapers are presenting someone’s gender identity as if it were their sex. This is the one issue Fair Play For Women has raised with IPSO repeatedly and it is disappointing to see this crucial aspect omitted.
The draft guidance notes in its questions relating to accuracy “Is the terminology being used likely to create a misleading or inaccurate impression?”. However, the guidance fails to clearly spell out the potential for everyday words such as “woman” to mislead the audience about the sex of an individual. The vast majority of the public reads the headline “Northwich woman jailed for cocaine-fuelled sex with dog” to be someone whose sex is female, whereas in this case the individual’s sex was male. When an individual’s sex is relevant and important to the understanding of the story is it important that a personal gender identity is never presented in such a way that it can be misunderstood as referring to their sex. Sex is not always relevant to a story, but it becomes relevant when male and female sex differences are known to occur with topics such as criminality, sport and reproductive biology.
It is commonplace to report sex even when it is not relevant to a story. It is surely more important not to misreport sex when it is significant, or even central. A female sex offender would indeed be a big story, so reporting male sex offenders as if they are female is seriously misleading both in the particular and in the general.
b) Misleading language heard in court.
The draft guidance also suggests Editors may wish to consider the names and pronouns used in court. It is of course necessary to accurately report what was said in court, but this draft guidance does not make clear that it is currently the policy of the courts to exclusively refer to defendants using their preferred pronouns (as recommended by the Equal Treatment Bench Book). It is now standard practice in court for defendants whose sex is male to be referred to as either “he” or “she” depending on their preference. Therefore journalists, editors and headline writers should not assume or present someone’s sex based on hearing a name and pronouns alone. Describing a male defendant who is described using she/her pronouns in court as a “woman” without context is likely to mislead the audience about the individual’s sex.
The draft guidance makes clear that the “reasonable expectation of privacy can be affected by the public interest, material in the public domain and the person’s disclosures”. However, this applies to gender identity and sex in very different ways. In the vast majority of cases someone’s sex is obvious and observable, regardless of how an individual may identify. When sex is obvious and observable it is in the public domain and cannot be considered private information. Sex is often relevant and important to a story and therefore accurate reporting is in the public interest. These factors inevitably lower the expectation of privacy an individual can reasonably have about their sex.
In contrast, gender identity is subjective, personal and known only to the individual unless they chose to disclose it. Gender identity can be disclosed verbally by the use of an opposite-sex name and pronouns, or visibly when presenting in a way commonly associated with the opposite sex (e.g. use of wig, make-up and prosthetics). In such cases when sex is obvious and observable the individual’s trans status has indirectly been put into the public domain by the individual.
While sex and sometimes gender identity is clearly in the public domain, there can be cases where someone doesn’t want their sex or gender identity reported in a story. Unlike sex, someone’s gender identity or trans status is rarely relevant to a story. Gender identity is not a predictor of crime or sporting performance for example. This distinction was not addressed in the draft guidance which only mentioned the relevance of gender identity as a factor Editors should consider regarding defendants. Only sex is relevant to allegations and convictions, no one – including women’s groups such as ours – is advocating that the gender identity or trans status of a male rapist must be reported. It is only sex that matters and needs to be accurately reported. It is concerning to see this fundamental mistake in the draft guidance.
All these issues are exemplified by comparing the recent reporting of the conviction of the double rapist Isla Bryson and the tragic murder of Brianna Ghey. In both cases the individual’s sex is male but their gender identity is “woman”.
In both cases sex is obvious and observable, and gender identity has been disclosed through name, pronouns and their presentation. This means both sex and gender identity is in the public domain. In the case of the double rapist, his sex is highly relevant to the story and has been accurately reported by some journalists but not others. If Bryson submitted a first party complaint to IPSO regarding stories referring to him with male names and pronouns it is not clear from the draft guidance whether editors would be safe from a breach of the Editors’ Code. In contrast, the trans status and sex of Brianna Ghey is not relevant to the story and care should be taken by editors regarding this.
To address the omissions in the draft guidance we recommend adding the following paragraph:
“It is common practice to report a person’s sex and age without verification. The sex of a person is generally in the public domain, based on observation and/or history. If neither sex nor transgender status is relevant, then ideally both would be omitted. In practice this may be difficult because of the need to use pronouns and should be at the editor’s discretion. If sex is relevant regardless of transgender status then take care not to mislead by reporting gender identity as if it were sex. Headlines should not use sexed language unless it is important to the story, and in such cases should not use gender identity as if it were sex, unless quoting court statements, in which case this should also be clear. For court reporting, avoid presenting the pronouns used in court as if they were describing sex, and avoid extending gender-based language beyond quoting that used in court.