We told BBC Politics about the errors in its Newscast

It took seven pages to list the problems with its Victoria McCloud Interview

Here’s what we sent

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Dear Laura, Rufus and Chris,

Thank you for your podcast addressing the issues around the Supreme Court ruling. It’s an important issue and deserved the time you gave it.

Unfortunately there are dozens of serious flaws in the interview, largely arising from the continued failure for about a decade to focus on accuracy and impartiality around sex and gender.

BBC Politics has a role in addressing this problem so we’ve outlined where the podcast went wrong in terms of accuracy and balance. At Seen in Journalism, we don’t seek to silence voices. However we think it’s imperative to focus on what is true, and curate a range of voices around established facts. It didn’t happen here.

The most important flaw of course was the decision not to seek a balancing voice (or to trail a future episode with a balancing voice). Although For Women Scotland actually won the case, for example, you did not ask them to contribute, and there are many lawyers with discrimination expertise who would have been able to help. The interview is filled with misrepresentations of UK law which should have been addressed, and it oversold the prospects for Dr McCloud's own legal challenge.

We believe you wanted this to be an internally balanced item, and you thought you could achieve this - it was clear in the counter-arguments you made yourselves, some of them good ones. However, it was ultimately impossible because of significant gaps in your and the BBC’s collective background and understanding.

We do also realise that the presenter Laura is very exposed, and that many of these problematic decisions and failures of research are simply what she had to work with.

May we draw particular attention to two sections:

‘I've also seen photos of Nazis, literally saluting Nazis, attending a gender critical rally and that happened in Australia and that’s all over the media and the Australian government spoke out about it’

It was a stunning and serious error not to challenge this. The organiser of the rally has disassociated the event from these activists and made clear they were not invited. It was gatecrashed - even the Guardian is clear about this. The then Victorian Opposition Leader John Pesutto has been bankrupted after being sued for defamation over claims that the Australian MP Moira Deeming ‘was associating’ with neo-Nazis at the event. You should offer a public apology to Kellie-Jay Keen Minshull of Let Women Speak for this appalling misrepresentation, and a public apology and clarification for allowing Dr McCloud to make this claim unchallenged.

And here: ‘The medical process is not difficult’ - we recommend checking the accounts of detransitioners before broadcasting unchallenged any unevidenced statements like this again. Young gay men have been castrated and will be patients, infertile, in pain, without sexual function, forever, because of this ‘not difficult’ medical process. Young women will suffer, forever, with vaginal atrophy and osteoporosis, fertility problems, unable to breastfeed, because of this ‘not difficult’ medical process. There are tens of thousands of people who have been harmed by this ‘not difficult medical process’. Having been unchallenged, this should not have got through the edit.

In general, the impact of deciding to ‘go it alone’, was apparent: you were relying on the BBC’s own research and history of coverage to rebut Dr McCloud’s claims. Sadly, it was never going to be enough.

We trust that as the Editorial Guidelines forbid allowing guests to veto other guests by refusals to take part, Newscast did not comply with any such stipulations. However it does mean that you own the decision not to balance the guest.

The difficulty is: you don’t know how much you don’t know, and it’s a systemic problem at the BBC. Hopefully the response to this Newscast will have helped to show you, and to demonstrate the need for a balancing guest, every time you platform a gender identity activist.

The values of accuracy and impartiality are not just vital in this debate - it's highly defensible to apply them with rigour.

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The following document was attached:

Here is where Newscast went wrong. We've divided it into sections and highlights for readability. The three biggest issues were:

• the law

• the impact of medical transition

• the history of activism

- but we should stress that almost everything Dr McCloud said was of dubious or incoherent nature, and merited challenge.

The law

Dr McCloud: ‘No trans organisations were party to the case’

Laura was unable to explain that no transgender advocate organisations applied to be a party to the case. She should also have pointed out that the Scotgov case itself was publicly funded with the country’s best lawyers by C£400,000) to make the case for transgender people. Laura was also unable to explain that it is vanishingly rare for the Supreme Court to take evidence from individuals.

Dr McCloud: ‘Human rights’ were not considered in the judgement’

Laura did not point out that specifically, the Supreme Court did address some of the human rights aspects in paragraphs 63-68, 73, 157 of the judgement. However, most importantly it wasn’t a case about human rights law. Neither side, including Scotgov, sought a human rights interpretation of the Equality Act, or a ‘declaration of incompatibility’ with the European Human Rights Convention.

Would it have been possible for Laura to know this? Yes: you were interviewing Dr McCloud because of this legal challenge, and the producers should have mastered the most important details. The issue of human rights was the interview peg. You should have known.

Even without depth of research, it’s easy to see, for example, that the implication of legislation which limits discrimination on grounds of biological sex and gender identity is to acknowledge that both protected characteristics have human rights attached to them.

As soon as you uncovered this important facet of Dr McCloud’s case, which (to understate the issue) inhibits its likelihood of success, you should have been prepared to make a challenge about it, or, if it was felt too difficult, bid a balancing guest.

Dr McCloud is crowdfunding a case built on the idea that it would be a violation of the European Convention of Human Rights to recognise biological sex in discrimination law. At the very least there should have been a research conversation with a lawyer ‘on the other side’.

In addition it is highly likely that such an application to the ECtHR could be deemed inadmissible. As public money is being sought for this challenge, this should have been explained. Here are the conditions to be met. These are so central to the interview that it is surprising they were not interrogated.

Dr McCloud: ‘The consequences are still being worked out. We’ve got two different aspects: one is the ruling, and one is the interpretation. It’s confusing’

These are easily disprovable activist claims. The Supreme Court ruling said that sex in the Equality Act 2010 means biological sex. The EA2010 applies in all circumstances in the UK (save Northern Ireland which has a different piece of legislation) where discrimination might arise. Therefore in all circumstances where discrimination might arise, the Supreme Court judgement of April 16 applies.

There is no other possible interpretation, and gender identity activists know it: which is why they are unhappy, why activists like Dr McCloud have left the country, and why activists have begun campaigning for MPs to change the law. They are all aware that the Supreme Court judgement leaves no room for doubt.

This is why you needed a balancing guest. A balancing guest would have been able to make the point that the efforts of activists, including Dr McCloud, are now focussed on delaying implementation. This would include the successful attempt to extend the consultation period, a second unsuccessful attempt to extend the consultation period, and Dr McCloud’s ECtHR challenge.

(As a point of production, it would have been far more useful and interesting to spend an extra ten minutes interrogating the law rather than Dr McCloud’s lived experience, but our main point is that it fails in terms of truth and accuracy’.)

Laura’s challenge on women’s privacy was good. However in the same sentence the law is described as an ass, as if to suggest: this judgement is wrong, but we have to work with it. It’s the only time the law is described as an ass. It was not described as an ass when, for example, discussing the law that says people can change their legal sex marker.

Dr McCloud: ‘The Supreme Court didn’t define what sex is’ (it was not required to - it was required to choose between biological sex or certificated sex. There was no suggestion by either side that ‘biological’ is a word without meaning).

‘The Supreme Court said if you’re a woman you’re female which is circular’ (untrue)

‘The Supreme Court didn’t define biological sex (it was not required to).

While these claims are rather incoherent, they still merited a challenge. We understand it’s frustrating to hear this but yes - you can and should challenge every untruth or misrepresentation, no matter how many there are. Just because they were piling up at speed doesn’t mean they can be ignored. It was Newscast's choice of guest and Newscast's choice not to have a balancing contributor. You can’t just give up because there’s too much disinformation to challenge.

However - on 'biological sex in law' it was harder for you, because the BBC has never produced the much needed reality check which would have enabled such a challenge.

In brief: biological sex across all mammals and most animal and plant species is related to gamete size. If your body is supposed to produce large gametes, you’re female. Small gametes - male. This definition survives the most stringent argumentative testing. No ‘medic’ - to use Dr McCloud’s term - has ever disproved it.

The suggestions that previous law ‘doesn’t contain the word biological’ and ‘the Supreme Court has now ‘created inconsistencies’ merited challenge. Only a presenter very familiar with identity activist legal arguments would have spotted this straw-manning. However we would say that having chosen an in depth interview on this subject with this guest alone, the team should have made themselves familiar with those arguments.

This is where a balancing contributor would have been able to say what it’s harder for a presenter to say (even though it’s true) - that the Supreme Court judgement married law to reality.

A balancing guest would have said: the claim that ‘biological sex’ could mean something other than ‘male or female’ has never been substantiated. No other suggested meaning has been offered. An alternative definition wasn’t even requested of Dr McCloud during the programme.

‘Before the Supreme Court decision the answer to ‘what is a woman’ was having an F on your passport’.

This is not true and should have been challenged. The acquisition of a Gender Recognition Certificate has never changed a person’s sex, and the GRA 2004 doesn’t say it does change a person’s sex. What it changes is the person’s legal sex marker, with certain exceptions built in at the time. Transgender advocates were wont to say ‘It’s only admin - just a piece of paper’ when they were campaigning to secure self-identification of sex. This turned out to be true after all.

Laura was unable to challenge the points about the phrase in the GRA 2004 - ‘for all purposes’ - because there has been no BBC fact check on the GRA and its relationship with the EA 2010. (We have raised with the BBC the problem that most people who have this wider knowledge, and show an interest in covering the story in detail, are warned off, reprimanded or removed from the story. It prevents the creation of a knowledge economy at the BBC around sex and gender.)

In short: there are exceptions/purposes in the GRA where it was made clear that certificated sex does not apply. One is succession. That is: a woman can’t change her legal sex marker and hope to inherit where male primogeniture applies (titles, estates etc). Another was sport. This sport exception was repealed with the Equality Act 2010, which then included it in its own list of exemptions. Thus the GRA did not say that certificated sex was changed ‘for all purposes’. It clearly wasn’t. The entire Politics team should have known this for a while.

‘The law says explicitly, and I’m sure most trans people would agree with me, and I’m leaving the Supreme Court out of it, that a transexual woman who has followed the legal process, has gone through the medical process and a court process is a woman for all purposes by sex so it’s absolutely clear - but people who haven’t, aren’t’

We understand that the battery of untruths may have been exhausting at this point towards the end of the pod, but this should have been challenged. No ‘medical process’ is required (it’s rightly considered inhumane: it’s very rare to find any supporter of physical transition as a condition of legal transition). There is no ‘court process’ - you supply various documents, pay £5 and speak to a medical and legal panel. We have discussed ‘for all purposes’ - it was never ‘for all purposes’. It is not ‘absolutely clear’, as evidenced by Dr McCloud’s own misrepresentation. None of what was said here is true, apart from the phrase ‘people who haven’t, aren’t’.

‘Toilets aren’t segregated by law’ This was an important opportunity for Laura to explain that not providing single sex facilities may constitute indirect discrimination against women, who are more at risk in mixed sex facilities. This is central to the development of EHRC guidance, and we have already seen some organisations abandon women-specific spaces and opportunities because of the perceived difficulty in keeping out trans-identified men and boys. This is the second absolutely central issue to the Supreme Court judgement that the programme producers missed (the first being the human rights question) and should have worked on.

The impact of medical transition

Laura did not challenge Dr McCloud’s bizarre claim that he might not know what sex he is. Given that there was no ban on personal questions, she could have asked how it was possible to go through the drug protocols and surgeries involved with transition without finding out your sex. You don't need 'a scan'.

This section of Newscast also promotes a rather dangerous lie involving the conflation of ’trans’ - that is, the psychological condition of believing you are the opposite sex - with ‘intersex’ - an outdated term for the physical medical conditions now called disorders or differences of sexual development (DSDs). It is certainly groundless, and appropriation without consent of a series of conditions which can make life exceptionally difficult for some people.

Dr McCloud: ‘We usually know much about the time as most other people know’ - this is a completely unfounded claim and a dangerous myth. It implies that gender identity is innate and present in very young children, neither of which are scientifically substantiated. It should have been challenged. There was no interrogation, for example, of the role stereotypes might have played in young McCloud deciding he was a girl, no demurring that the question of innate gender identity is highly contested (with plenty of evidence against - detransitioning, for example).

‘Like most trans people, I don’t have any memories of not being trans’ - it’s just not true. These generalisations are dangerous. He only speaks for himself, and should have been challenged.

The whole ‘personal journey’ section was wildly counterfactual and should have been dropped. It was simply a platform for gender identity activism, stamped with BBC authority.

Dr McCloud: ‘It’s no more complicated than taking a contraceptive pill’ - this isn’t true. Taking opposite sex hormones is a life-changing intervention with multiple adverse effects. Dr McCloud should not have been allowed to generalise his personal experience in this way.

‘The medical process is not difficult’ - we recommend checking the accounts of detransitioners before broadcasting any unevidenced statements like this, unchallenged, again. Young gay men have been castrated and will be patients, infertile, in pain, without sexual function, forever, because of this ‘not difficult’ medical process. Young women will suffer, forever, with vaginal atrophy and osteoporosis, fertility problems, unable to breastfeed, because of this ‘not difficult’ medical process. There are tens of thousands of people who have been harmed by this ‘not difficult medical process’.

It was thoroughly irresponsible not to challenge this. If you’d had a balancing guest, they’d be able to at least express a balancing view. Better still, drop it altogether.

The suggestion that the ingestion of oestrogen prevents Dr McCloud getting pregnant is almost too ludicrous to mention. However, not challenging at the time it has exposed Newscast to public ridicule.

It’s not like a ‘second puberty’, as Dr McCloud claims. It’s impossible to undergo the puberty of the opposite sex. It is a drug protocol with side effects.

Repeated use of the phrase ‘anatomically female’ should have been challenged. The outcome of castration and orchiectomy is not ‘female anatomy’. We understand that it’s hard for a presenter to say ‘You haven’t got female anatomy’ but a balancing guest would have been able to explain.

While even a balancing guest might baulk at saying ‘It is inverted penis skin lining a wound which will close up without constant attention’, at least they would be able to offer some clarity. The BBC shouldn’t be misleading people into thinking that men and boys can acquire ‘female anatomy’. By not challenging this, it did.

‘If you’re lucky to be doing it young enough everything changes’. This could be an advert for child and adolescent medical transition. It’s a shocking statement. Very hard to understand why it wasn’t challenged, or edited out.

It would have been straightforward to challenge the claims that nobody ‘spots’ trans-identified men, and that they all ‘pass’. ‘Most trans people are invisible’ is a dangerous fantasy to share on a BBC platform. This is what drives medical transition at a young age - the idea of ‘passing’. It’s hard to understand why the BBC would want to do that.

Finally - oestrogen really does not ‘turn muscle to fat’.

Dr McCloud’s ‘personal journey’ was so full of generalisations, untruths, and extreme activism it was simply an irretrievable platform for transition. But Laura says it was ‘fascinating’: her words a seal of approval.

The whole section should have been dropped in favour of more legal argument.

The history of activism

‘I've also seen photos of Nazis, literally saluting Nazis, attending a gender critical rally and that happened in Australia and that’s all over the media and the Australian government spoke out about it’

It was a stunning and serious error not to challenge this. The organiser of the rally has disassociated the event from these activists and made clear they were not invited. It was gatecrashed - even the Guardian is clear about this. The Victorian Opposition Leader John Pesutto has been bankrupted after being sued for defamation over claims that the Australian MP Moira Deeming ‘was associating’ with neo-Nazis at the event. We strongly recommend swift remedial action over this claim. The BBC has broadcast an unsubstantiated, appalling slur, without challenge.

‘All these issues arose in 2016 with Donald Trump and the Telegraph’ Dr McCloud is allowed to imply without challenge that this is a right-wing driven issue. BBC Politics should know (and should have known for a long time) without question that this is not true. All the earliest pushback to gender identity activism in the UK came from the left. It came from left-wing feminism, and began long before 2016. This claim should have been challenged.

(An aside: the medical transition of children became extremely visible in 2015, largely due to BBC programming. This attracted attention from a wider range of outlets. This could also have been pointed out by Laura as a possible cause for more visible pushback - had she known about it, and been aware of the extraordinary rise of child referrals to the Tavistock in 2015).

Dr McCloud: ‘It’s all coming from nowhere, we’d had decades without any issue’ BBC Politics should know that any sense of this comes from the fact that gender identity activists had been operating - in their own words - ‘under the radar’. It’s not controversial to say this. As long ago as 2018 Bex Stinson of Stonewall explained it at a conference on ‘trans rights’ (attended by the BBC’s Head of Diversity). But again, this is why you needed a balancing guest, as this will never turn up in your research. No BBC colleague with this much knowledge of what’s happened over the last 15 years has ever been allowed to generate the background material or coverage that is needed if you are going to be accurate and impartial. A balancing guest could have supplied it.

General

‘Some trans women are women and some aren’t’ Laura at any one of a number of points could have said: ‘This doesn’t make sense’. Here are the questions needed here:

‘What is the difference?’

‘How can you tell?’

‘Can you confirm you do not support self-identification of sex?’

‘What do you think makes you a woman?’

‘What do you think a woman is?’

‘What evidence do you have apart from your feelings that it’s possible to have a female brain inside a male body?’

These would have been interesting and justified questions for a lawyer given such a high profile platform, but more importantly they would have helped to pin down many of Dr McCloud’s misrepresentations.

Laura did well to raise the issue of intimidation to women’s groups and the contrast with the lack of intimidation going the other way. However:

‘Gender critical people don’t know a lot of trans people’ - Dr McCloud speaks for no one gender critical; this is not true: this should have been challenged.

‘I don’t think there are that many of them’ This should have been challenged. There is huge general public support for single sex separation in sports, toilets, rape crisis centres, prisons and private areas.

‘The female people I know wouldn’t be bothered if it happened’ should have been challenged: they can consent for no one else

‘Trans women are assaulted very regularly’ should have been challenged with figures on attacks on women including attacks on women in mixed sex facilities

‘Lesbians are getting abused very badly by women in loos, they always got abused because they’re suspected of being trans, now they have it much much worse’ This should have been challenged. It’s simply not true. This is why you have balancing guests, so that the BBC doesn’t broadcast unchallenged lies. Laura and the team don’t know enough about the issue to have foreseen this mendacious claim. You needed an expert.

‘Male cleaners are in female toilets’ should have been challenged - it’s always signposted when this happens because males are not expected to be in female spaces. Dr McCloud seems implicitly to suggest that it’s hard for trans people to respect the law.

‘Someone’s going to get killed’ Extraordinary hyperbole that should have been challenged. Not least by the suggestion that perhaps men should learn to be less transphobic and more inclusive.

Almost everything that Dr McCloud said about sport was factually wrong. No, women are not being banned for ‘having an unfair advantage’ - this is a reference to athletes who are discovered to have XY DSDs, ie they are male. No, trans-identified men are not banned from chess, darts and angling. No, sport does not work by separating people on the basis of height or weight. No, sports have not had criteria ‘for years’ and ‘applied them fairly’. His suggestion that boys medically transition before 9 or 10 in order to play girls’ sport is horrific, and odd.

‘You don’t get that coverage if you’re trans’ Untrue, the team should know this, and it should have been challenged. We could provide links but you would spend a week reading them. Across all media, gender identity affirmation and personal journeys dominate.

‘Driven out of office by hate’ Dr McCloud resigned ‘to avoid politicising the judiciary’.

The genuine incoherence of Dr McCloud’s responses was really a disaster throughout. It’s a very difficult listen for this reason, and distressing to hear misleading statement after misleading statement pass by unchallenged.

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We hope this helps to explain some of the public responses to Newscast. No doubt supporters of self-identification of sex are emailing in to complain too. However, this is not a case of simply balancing the ‘body count’ of complaints from people with differing views.

We’ve pointed out important failures of accuracy that arise from an absence of understanding built on years of inadequate or gender identity activist journalism. A balancing guest would have saved you this trouble.

We have plenty of links and contacts we can share with you. One of the more important is this by Michael Foran on the potential human rights challenge to the Supreme Court judgement.

Thank you so much for your attention.