Dying on rapist hill

The urge to put the perpetrator ahead of the victim

Time for another look at the choice by journalists and regulators to respect the claimed ‘gender identity’ pronouns of rapists, child sex offenders and murderers.

Otherwise known as ‘dying on rapist hill’. That is: if the sacred cow of gender identity is deemed to be unreliable or suspect at any time, under any circumstance, it is fatally wounded. Therefore even for violent and violent sexual offenders, it must command deference.

This is the principle at stake. So what are the practical drivers?

Do editors actually want to do this?

Is so-called ‘misgendering’ against any law or regulatory code?

Will there be a penalty if violent and sexual offenders are accurately referred to by male pronouns?

What if they have a GRC?

The answer to the first question is, no, not all editors and journalists want to do this. We know, in fact, that many don’t. They’re uncomfortable with it. Not uncomfortable enough to challenge it in print yet, or to use ‘gender neutral’ pronouns, but uncomfortable all the same.

Is it against any law or regulatory code?

There is no law against ‘misgendering’. Neither the Gender Recognition Act 2004 nor the Equality Act 2010 bans ‘misgendering’. The Maya Forstater ruling protects people who accurately refer to biological sex as a ‘protected belief’. It makes no difference if they have a GRC.

The Protection from Harassment Act 1997 could be used but it does not mention ‘misgendering’. It is profoundly unlikely that the use of accurate words alone to describe sex could be found to constitute a crime of harassment, though a lot of noise is made about this by activists. There could also be a claim of discrimination on the grounds of gender reassignment.

So there is no ban, but there are risks that have yet to be tested.

There is no external regulatory editors’ code or guidance that bans ‘misgendering’.

We’re going to focus first on IPSO because press journalism including (or mostly) online sees the majority of court case reporting.

Here’s the IPSO Code of Practice. This is binding on publications that are signed up to IPSO. Here is the relevant clause:

• 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.

• 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.

It does not ban misgendering.

Here is the IPSO Sex and gender identity guidance. It is not binding, and therefore cannot ban misgendering.

Some key points:

• ‘The press should not make pejorative or prejudicial reference to an individual’s sex or gender identity’

• ‘Journalists may use various methods to ensure coverage of sex and gender identity is accurate’

• ‘Journalists should consider whether information about an individual’s gender identity is genuinely relevant to an article’

• ‘Journalists should take care not to publish inaccurate and misleading information’

In fact most of it could be read as recommending the use of sexed language. Ensure accuracy? Absolutely. Take care not to be misleading? No problem. Stay relevant? Fine - let’s not mention his gender identity and just call him a man.

So what is there for editors to fear - if the Code is not prescriptive?

The Code, and the sex and gender guidance, leave us with the ambivalence of ‘pejorative or prejudicial reference to an individual’s sex or gender identity’. This is open to interpretation. Gender activists claim that simple references to sex are both pejorative and prejudicial. Most people disagree.

But this way IPSO can say the decision is up to editors. It passes the buck.

We asked IPSO if it would offer a reassurance that so-called ‘misgendering’ in cases of violent and sexual crime would be free of penalty. Obviously they declined.

Here we come to to the real hiccup. While IPSO’s Code is ambivalent, and its Guidance is non-binding, its complaints process is loaded.

The complaints team will dismiss third party complaints, even about inaccuracy, when ‘preferred pronouns’ are used for a rapist. For this, it cites its regulations, which govern the principles under which IPSO operates.

See point 8 in the linked regulations.

8. The Regulator may, but is not obliged to, consider complaints:

(a) from any person who has been personally and directly affected by the alleged breach of the Editors' Code

(b) where an alleged breach of the Editors' Code is significant and there is substantial public interest in the Regulator considering the complaint, from a representative group affected by the alleged breach

(c) from a third party seeking to correct a significant inaccuracy of published information. In the case of third party complaints the position of the party most closely involved should be taken into account.

This little, hidden clause allows IPSO to prioritise the person most closely involved in the story. IPSO considers that person to be the trans-identified male sex offender. Even when the complaint is about prima facie, indisputable, observable and objective inaccuracy, it ‘takes the position of the party most closely involved into account’.

Is that person telling a lie? If it’s a man, saying he’s a woman, he’s definitely not telling the truth. It doesn’t matter.

Note that IPSO doesn’t have to ask ‘the person most closely involved’. In fact it brings in privacy at this point (see Clause 2 in the Editors’ Code) - citing ‘the potential effect on someone if IPSO undertook an investigation into an article about them without their involvement, particularly where the point of complaint concerns their personal characteristics… an investigation and the potential subsequent publication of an IPSO ruling could represent a significant intrusion into their privacy’.

So it assumes the rapist’s preference, and worries about the rapist's privacy - while at the same time entertaining no such assumption or concern for the actual person most closely involved: the victim.

This was particularly notable in the case of Alex Secker, whose victim used male pronouns in court. It would certainly be intrusive and retraumatizing to ask her a similar question, and an invasion of her privacy too. So IPSO in the Secker case had clear and balanced choice between adopting the assumed preferences of the rapist, and adopting the assumed preference of the victim. It chose the rapist.

‘Third party’ complainants - that’s you and us - matter even less. These can be dismissed as soon as they’ve got through triage, on the grounds of being third party complaints. The intrinsic value of the complaint doesn’t matter.

Note that (8) of the regulations doesn’t say that IPSO must prioritise the ‘position of the party most closely involved’. It only says that position should be taken into account.

This is where the ‘loading’ comes in. IPSO’s Complaints Committee could interpret (8) as it’s written: take the rapist’s position into account, but don’t be enslaved by it.

Instead it adds together ‘person most closely involved’ with ‘privacy’ and arrives at ‘prioritise the rapist over accuracy and the victim combined’.

What’s needed is for a publication accurately to describe a rapist by his sex, and to face down IPSO and robustly defend its decision. Would IPSO dare to come to the defence of a rapist or a paedophile over preferred pronouns? A precedent would be set.

But no newspaper has done it. Why?

For those editors who want to use accurate language, it is in large part fear of regulator penalty that stops them. They can’t rely on IPSO to step in and defend accuracy on ‘gender’ and they don’t want to be in breach of the Editors’ Code. These are the potential penalties:

• require a member to publish an adjudication, which may include a requirement to address the concerns raised

• impose a fine on the member(s) of up to £1 million

• require the member(s) to pay the reasonable costs of the investigation

• terminate the members(s) membership of IPSO.

Why can’t they just leave IPSO en masse?

IPSO regulation is ‘voluntary but binding’. It’s self-regulation by the industry. Regulation is needed, and without IPSO, the government would step in. The press don’t want government regulation. They want IPSO to work.

This is why, despite no IPSO ban on misgendering, editors have observed 'preferred pronouns’. No doubt there are plenty who see it as a minor issue, or a small price to pay, compared to the volume of stories they publish on the scandals and injustices borne out of gender-identity led policies.

We need only look at the Scottish Daily Express, which has been reported to the police twice for using male pronouns for Beth Upton, a co-respondent in the Sandie Peggie employment tribunal.

There will always be someone obsessed enough to complain, and the complaint, however free of any grounding, will always have to be investigated. It’s trouble that editors neither need nor want, nor should have to endure. A precedent or reassurance from IPSO would help.

Two other developments will also make a difference.

The new guidance to judges from the Judicial Office.

‘Judges have been warned that it is “extremely inappropriate” to refer to male rapists who say they identify as women by their preferred pronouns. Judges have also been told that they must avoid addressing defendants as the opposite sex in cases involving violent offences such as domestic violence’

Editors already have a choice over whose language to follow: judges and court officials, whose language has usually been affirmative, led by the Equal Treatment Bench Book, or victims and their lawyers. The defence for using inaccurate language is usually ‘this was the language used in court’. If judges start to use some discretion when it comes to preferred pronouns, editors will be emboldened.

The Supreme Court ruling on the definition of woman. Its impact is less certain but it will certainly offer editors more defensibility.

There is also an unexpected effect of the Sandie Peggie tribunal, which may in some ways have come to the rescue.

Until now, outlets have treated ‘respecting pronouns’ as a neutral position, and accurate reporting as a biased position.

The fact that ‘misgendering’ has been such an issue in Sandie’s case will have made many editors realise that it is very visibly not neutral to respect ‘preferred pronouns’.

Prominent among outlets to act on this is BBC Scotland, who from the first day of the tribunal, given the previous decision that male pronouns were permitted, sent round the editorial advice that no pronouns were to be used for Upton at all.

Its journalists have had to work very hard to avoid ‘he’ or ‘she’ but they’ve done it, consistently, for over two weeks now. This is a learned skill, and one that the BBC has previously neither required nor deployed, except when writing stories about periods and avoiding saying ‘girls’.

We hope, and it’s possible, that the hangover from this exercise across outlets will be fewer female pronouns for rapists, murderers and child sex offenders. Who can complain about no pronouns? No one. The sunlit uplands of complaint-free coverage of ‘trans’ crime is in their grasp.

We will revisit the issue with Ofcom, which is also captured, but in broadcasting the main culprit and target for change would be the BBC. When the BBC shifts tone on this, the UK legacy media landscape will gently but surely respond in kind. The BBC is already reviewing its guidelines across sex, gender and portrayal.

We hope this has helped to explain why news outlets are still dying on rapist hill. By now some are undoubtedly keen to get off it, and ready to change course. Legacy outlets are so far behind social media on this that they know it’s shattering their credibility. This could be the year it happens.