Scarlet Blake: Ofcom response

Why the regulator is wrong

The broadcasting regulator Ofcom has responded to an intervention by the peer Baroness Nicholson concerning multiple complaints that news outlets, including BBC News, referred to the murderer Scarlet Blake as a woman and that his male sex was obscured.  

Scarlet Blake was convicted of murdering Jorge Martin Carreno in 2021. Most news reports around his conviction and sentencing in late February used she/her pronouns, and described him as a woman and sometimes a trans woman or transgender woman.

In one example, here BBC news calls him a woman. He was also described as a woman in a live BBC TV national bulletin without any reference to the fact that he is ‘trans’.

Ofcom says that 'overall accuracy' was not affected by referring to Scarlet Blake as female (by she/her pronouns) and as a woman.  This is based on its judgement that referencing biological sex is not necessary for material to be duly accurate, with the meaning of 'due' being 'adequate or appropriate to the subject or nature of the programme'.

It also refers to this research it conducted almost three years ago, and claims that it indicates there is general public agreement that misgendering Scarlet Blake would not be acceptable and could be seen as offensive or transphobic.

There are two significant problems with its reliance on this research. 

Firstly, the scenario used bears no relation to the Scarlet Blake case. Participants were asked for their opinion on a live feature interview with a trans-identified male or  'trans woman' who is accidentally referred to as 'him': not a news report about a convicted murderer who self-identifies as female, and whose sex was salient to the crime and whose trans status was raised in court.

It is disingenuous, in fact misleading, of Ofcom to suggest that the public reaction to a live, non-criminal, contributor to a programme feature would bear any relation to a factual news report about the sentencing of a murderer whose sex and 'gender identity'  are relevant to the crime and were brought up by his own defence during legal proceedings.

Secondly, the research included a qualitative strand which included four LGBT focus groups by self-identified gender, with in-depth interviews of five non-binary people and five transgender people, and no feminist focus groups or in depth interviews - despite the fact that by 2021 feminism and gender were two deeply contentious topics, and had been since 2015.

The research on which Ofcom builds its judgement was therefore not only fatally unrepresentative from the start, its findings have been extrapolated in this latest ruling to a news framework which is so far removed from the original scenario, it bears no relation to it at all apart from the use of the phrase 'misgendering'. 

In addition, it cherry-picked from its own work, ignoring the finding that there was a general public acceptance that programme makers have a duty to accurately reflect real life.   

Ofcom also consider harm or offence in relation only to the trans-identified person, and not to any victim/s family, or more widely to women and LGB people. 

There is no question that attitudes have changed even further since 2021 - this is a very fast-moving debate and Ofcom has not kept up. It should commission further public research specific to this issue, and include in depth interviews with feminist and LGB groups who do not share the belief in gender identity (which apparently Ofcom does itself hold). 

However it's of greater urgency that Ofcom now meets with such reality-based  groups before any research is commissioned, as its understanding of the law and the landscape around gender transition is now badly flawed and out of date. 

Unfortunately it has become clear that Ofcom's diversity insights have recently been further informed by gender identity activist groups.  Simon Redfern, its Director of Comms, has recently hosted diversity training with Suki Sandhu (see this @journalismseen thread) who helped with Ofcom recruitment, and who has condemned JK Rowling as having 'transphobic views' and 'gatekeeping human rights'.  Simon has also hosted an Ofcom diversity session with the transactivist Pips Bunce.

It does not look impartial, and is not impartial, when Ofcom are declining to invite groups with a diversity of viewpoints to its diversity sessions.  The sort of groups who might be invited, such as Sex Matters or LGB Alliance, are not fringe elements (though that should not be a reason for their exclusion anyway). They are well known diversity campaigners with charity status.   It is time to include them in Ofcom’s diversity landscape. 

Finally, Ofcom has fundamentally misunderstood, or deliberately misinterpreted, the concept of 'due' accuracy, and used it to suggest that an untruth is more 'due' than the truth itself.  

'Due accuracy' is a vital concept when considering whether to include truthful but irrelevant information to a report.  Examples would be describing someone’s race, or weight, or religion, or clothing, when it bears no relation to the subject of the report and might unnecessarily offend or generate prejudice. They can easily be omitted without losing meaning. But Ofcom has come to the conclusion that the fact that Blake is male is (astonishingly) not only of no relevance and may be omitted, but that it can be replaced by the lie that he is female.  It’s a corruption of the ‘due’ principle.

Ofcom has elevated the opinion that Blake is female above the fact, the truth, that he is male: and elevated hypothetical harm or offence to a very small group above potential harm or offence to his victim's family and to wider society.  

Blake's sex is relevant to the crime as a fact of male violence, but also in the midst of a highly-charged debate about gender in the justice system: in sex-segregated detention, court proceedings where victims are forced to use gender activist language, punishment of female inmates for 'misgendering' males they are locked up with, the origins of the Equal Treatment Bench Book and so on.  This is a party political issue, a very febrile issue, in an election year.

It’s vital that Ofcom reconsiders its approach to gender activist language and conventions in their entirety.

It also needs to brush up on the Equality Act 2010: ‘gender’ is not, as it claims, a protected characteristic.

Seen In Journalism is also making these representations directly to Ofcom.