On 16 February 2023, the Leveson-compliant press regulator IMPRESS launched its new Standards Code and Guidance following a two-year review of its editorial standards.
Acknowledging the challenges media professionals are faced with in today’s constantly changing news environment, the new Code addresses, among others, key issues around misinformation, safeguarding, the use of AI technologies and discrimination. It is precisely IMPRESS’ new approach to the latter, particularly in relation to its implications for trans-discriminatory reporting, that this article will focus on.
IMPRESS’ reconsideration of its discrimination clause comes at a time when official figures point towards an alarming increase in transphobic hate crimes in England and Wales in 2021/22 (56% up from the year before) and transgender issues occupy a very prominent position in the public agenda, often being the subject of heated debates among politicians, journalists and even gamers. Recent incidents like the killing of 15-year-old transgender girl Brianna Grey in Chester but also political developments such as the UK Government’s decision to block a Scottish Bill that would allow gender self-identification and the concerns over the housing in prison of transgender sex offender Isla Bryson have featured widely in the news media, confirming the latter’s function as a key arena in which transgender issues are defined, debated and negotiated.
In the current socio-political climate, where the polarisation over trans rights seems to be constantly increasing and at times even reaching ‘toxic’ levels, the need for responsible news reporting on transgender issues is more pressing than ever. So, to what extent does IMPRESS’ new Code strike the right balance between freedom of expression and avoiding the risks of ‘othering’ trans people? And how does its approach compare to that of the other press regulator, IPSO?
The trans rights debate in a media-centred world
In order to better understand the challenges that transgender news reporting poses for media professionals and press regulators, it is important to first put them into perspective by considering the complexities of the ongoing trans rights debate.
It is worth noting that I use the term ‘debate’ throughout this article not to suggest that trans lives are up for debate, but to stress the increasing tensions between pro-trans and ‘gender-critical’ (GC) activists which have escalated into what was aptly described in Alison Bailey’s recent discrimination case against trans-supporting organisation Stonewall as a ‘polarised, often uncompromising, and sometimes hostile and abusive’ discussion.
The UK Government’s 2018 (later abandoned) plans to de-medicalise the process of legal gender recognition for transgender people and introduce a self-identification model triggered a wave of reactions from GC feminists maintaining the immutability of biological sex. GC supporters (among whom, best-selling author J.K. Rowling and philosophy professor Kathleen Stock) view gender self-identification as a threat to (cisgender) women’s sex-based rights and argue that they are being silenced by a ‘cancel culture’ where their concerns are being misconstrued as transphobic bigotry. On the other hand, GC views – which have been recognised as a protected belief under the Equality Act 2010 – are deemed by trans people as an attack on their very existence and a product of cisgender privilege.
There are no straightforward answers to these complex issues but, as I have argued elsewhere, journalists can only effectively address the difficult questions found at the heart of this highly mediatised debate by paying closer attention to the power imbalances between the parties involved and the potential harm of trans-othering discourse.
The recent backlash to The Times’ ‘deadnaming’ of murdered trans teenager Brianna Ghey [i.e. referring to her in her former (male) name] sparked new concerns about the ‘out-of-control’ media, whose coverage was criticised, among others, by the domestic abuse commissioner for England and Wales Nicole Jacobs as ‘appalling’, ‘disrespectful’ and denying trans people their dignity even in death. At the same time, GC group Fair Play for Women [which normally considers reporting based on one’s gender identity (instead of sex) to be misleading] suggested that, in Ghey’s case, the victim’s trans status was not relevant to the story and should have been omitted from it – a view which seems, however, rather unconvincing considering that the police are still looking into the possibility of this being a transphobic hate crime.
Casting a wider net on discriminatory reporting
As far as regulatory responses to the risk of media-fuelled discrimination are concerned, the most important development following IMPRESS’ Code review – and one with significant implications for transgender news reporting – is undoubtedly the lowering of its discrimination threshold.
The previous version of Clause 4.3 of the Standards Code stated that ‘publishers must not incite hatred’ against any group based on their characteristics (including gender identity or reassignment, sex or sexual orientation, race, age, disability etc). Instead, the new Clause 4.3 states that ‘[p]ublishers must not encourage hatred or abuse against any group based on their characteristics’ (emphasis added). The amended wording indicates a clear intention on the regulator’s part to move closer to a ‘discursive harm’ approach which pays close attention to media ‘othering’ that does not necessarily meet the high legal threshold of ‘hate speech’.
The new clause captures not only content which openly encourages people to commit acts of violence against a particular social group but also discourse that, among others, ‘perpetuates a narrative of prejudice […] that can result in fear or harm’ or uses ‘dehumanising language […], such as likening them to vermin, bacteria, pollution or aliens’ [Guidance notes paras 4.3.1(d) and (e)].
Echoing concerns repeatedly expressed by trans activists (see, indicatively, here and here), IMPRESS’ deputy chief executive Lexie Kirkconnell-Kawana explained that the regulator decided to lower the discrimination threshold in an attempt to tackle the ongoing alienation of communities who felt the way they were portrayed in the media was ‘toxic’, ‘hateful’ and ‘polarising’.
IMPRESS’ new discrimination standard does not seek to restrict the publication of material that is merely ‘provocative, offensive, hurtful or objectionable’ and, as the regulator makes clear, Clause 4.3 will be interpreted with a strong presumption in favour of freedom of expression (Guidance note 4.3.3). However, the amended provision provides minority groups at risk of discrimination with an additional and much needed layer of protection which is currently absent from IPSO’s approach.
IPSO considers ‘hate speech’ a strictly legal issue beyond the regulator’s remit and its discrimination clause (Clause 12 of the Editors’ Code) is only activated when the prejudicial or pejorative content targets a particular individual and not a group as a whole.
But such a narrow interpretation of Clause 12 has in the past resulted in IPSO ruling that content which dehumanised an entire group without naming any of its members was in compliance with its discrimination standard (e.g. Katie Hopkins likening migrants to ‘cockroaches’ in a controversial 2015 comment piece in The Sun). Considered in the context of the worrying increase in all hate crime categories and the concerns recently expressed to the UN by numerous campaign groups that human rights are being ‘seriously eroded’ in the UK, IPSO’s approach appears particularly deficient. It overlooks the potential links between media othering, community alienation and real-life discrimination or even violence that the IMPRESS’ new Code seems committed to address.
Prejudice diluted or accumulated?
At the time of writing, IPSO is in the process of revisiting its approach to issues of sex and gender identity, having launched a public consultation on the subject. Its new draft guidance acknowledges that reporting on such complex matters can generate wide and fierce debate. Although it delves a little deeper into specific aspects of the latter (e.g. the reporting of gender diverse defendants), it still remains silent on the potential risks of ‘othering’ entire social groups.
IPSO’s rationale for not providing any group protections against discriminatory reporting is that journalists should be able to ask uncomfortable questions without worrying about causing offence and that, in any case, the effect of prejudicial language is diluted when this is directed at a group as a whole.
But, in today’s polarised news environment, it could be argued that the opposite is true, i.e. that the ‘othering’ of an entire group (in this case, trans people) without any opportunity for redress has a cumulative effect as it targets each and every member of that group, favouring a view of all its members as ‘outsiders’.
IMPRESS’ approach has proved that it is not impossible for a press regulator to reconcile freedom of expression with an increased level of protection against trans-discriminatory reporting. IMPRESS’ position highlights the key role of a press regulator in setting the boundaries of the mediatised trans rights debate by clearly distinguishing between acceptable and unacceptable targets and, in that respect, it is a promising step in the right direction.
Dr Dimitris Akrivos is a Lecturer in Criminology, Department of Sociology, University of Surrey