The Supreme Court ruling and the media

How will editors adjust?

By ten o’clock on Wednesday morning we’ll know what a woman is, according to the law. The Supreme Court will return its ruling on For Women Scotland v Scottish Ministers from 09.45.

It will decide whether the protected characteristic of sex in the Equality Act 2010 refers only to biological sex, or also covers men with a female legal sex marker - a Gender Recognition Certificate. Should such a man be dealt with under the law as a woman for all purposes? Should a woman with a male GRC lose women’s sex-based rights?

The For Women Scotland case is concerned only with those who have such a certificate, so on paper - why would it affect how the media covers sex and gender, when most established media outlets have adopted self-identification of sex?

The BBC style guide is a leading example.

‘We generally use the term and pronoun preferred by the person in question, unless there are editorial reasons not to do so. If that’s unknown – apply that which fits with the way the person lives publicly’.

A similar pattern is repeated across UK linear broadcasters (with the occasional exception of GBNews) and every major global online outlet. News magazines and online news shows are not as routinely compliant.

The question of whether a trans-identified man has a GRC is never addressed by outlets, not even when the story is about rape, murder or child abuse. In theory, whatever the Supreme Court decision, it technically bears no relevance to editorial policies based on self-identification of sex.

But we’re confident that a win for For Women Scotland would make a difference to UK media coverage.

One of the reasons reporters and editors default so readily to ‘preferred pronouns’ is confusion around the law.

The first area of confusion is around the protected characteristic of gender reassignment. Trans-identified people are protected from discrimination as soon as they propose to undergo, undergo or have undergone any part of a reassignment process. In other words, they’re protected as soon as they say ‘I’m trans’.

Activists offering media advice misrepresent this to mean that from the moment of self-declaration, trans-identified people must by law be treated as if they were the opposite sex.

The second area of confusion is around GRC status and specifically this part of the Gender Recognition Act 2004.

‘It is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person.’

Gender critical campaigners are extremely familiar with the way this phrase has been misinterpreted and exploited to mean ‘nobody is ever allowed to reveal if a person is trans or has a GRC’. We appreciate that for many readers, none of this is news. Journalists who aren’t familiar with the field aren’t in the same position. Or, ironically, being specialist correspondents because they’re ‘LGBTQ+ experts’ - they’re completely uninvested in disentangling these misunderstandings.

Editors and journalists won’t necessarily believe every bit of gender activist ‘legal’ advice they’ve been given, but it’s enough to have sown confusion.

Many reporters believe it is, or might be, illegal to even ask if a person has a GRC. Perhaps they’ve been led to believe this by the police - the Deputy Chief Constable of Surrey recently issued a statement saying it was illegal for the police themselves to ask about GRCs - or, more likely, by activists. There are all sorts of bodies saying you shouldn’t ask to see a GRC.

The muddle over whether a person is legally to be treated as the opposite sex as soon as they self-declare, combined with the belief that it might be illegal to ask for a GRC, leads to extreme caution.

Because the person might have a GRC, which might mean they have to be treated as the opposite sex all the time, which they might not even be able to ask about, and even if they could, they might not be able to tell anyone, and even if they did, there would be multiple vexatious complaints to captured regulators - it’s too troublesome. It’s not at the moment seen as a fight worth having.

Some outlets see ‘preferred pronouns’ as the price they pay for covering the story extensively. The scale of complaints activism from gender identity advocates is a real deterrent to accuracy. Why risk tying yourself up having to defend your pronoun use to a regulator, when you can get on with publishing story after story about institutional capture and abuse.

It’s a mistake to think that every journalist and outlet which uses gender compliant language is a willing captive. Many aren’t. We know many who most definitely aren’t, including editorial policy makers. They would like to be accurate willy-nilly. They just need more legal ammunition.

Likewise, there are editorial leaders who may have previously been rather activist but would now like to row back - it is after all the natural and rational position given the scandals of medical transition and the very visible loss of women’s and LGB rights.

But, and this is a very human hurdle, they can’t just change their minds, and admit they’d been wrong for a decade, and worse, that women - including the women they ostracised, ignored, took off the story, disciplined and managed out - were right. Helen Joyce has written previously about the need for a ‘golden bridge’ and the hope that the Cass Review would offer repentant activists a way back to sanity.

The Supreme Court ruling would offer this exit ramp, even though it’s nominally nothing to do with self-ID. This is partly because if FWS win, the ‘for all purposes’ element of uncertainty of self-ID is removed. If even men with a GRC don’t always have to be treated as women, then men who only self-identify are even less due the pretence from others. Journalists wouldn’t need to concern themselves any more with whether it’s illegal to ask if a rapist has a GRC, or whether he has one at all.

But most importantly it enables editorial policy makers to say - something has changed, therefore we will change. They’ll be led into a much closer examination of the law, and armed with greater defensibility against complainants and regulators.

If the government’s latest plan to overhaul equalities legislation bears fruit, asking about GRCs will be normalised. Combined with this recent advice to judges and court officials to stop using preferred pronouns - campaigners for accuracy, both internal and external, will be able to point to the Supreme Court ruling and say: ‘We can no longer justify blanket self-identification of sex in our copy.’

And the blanket nature of self-ID is foundational - we’ve written previously about dying on rapist hill - because once you question self-ID for a rapist, you can question it for anyone. It becomes a sliding value, and it’s only sliding in one direction - towards accuracy.

If the Supreme Court ruling is not in For Women Scotland’s favour, it’s still possible that we could see change. In this case, the fact that it doesn’t technically concern self-ID is helpful. It’s still a reason to revisit previous legal advice and the law itself. It’s still a ‘peg’ (read: ‘excuse’) for a shift in stance.

Some outlets are probably unprepared for the explosion of campaigning that would follow a ruling in favour of the Scottish government. It won’t be over for the law, and it certainly won’t be over for news outlets. There would be years of coverage to come. Wise editors should not turn down Wednesday’s opportunity to regroup, rethink and reverse course.