BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.] 

The Authority has not upheld a complaint about a comment made on Newstalk ZB referring to the delays that would result while ‘people are in there determining whether they’re transgender or not’ if the census was to be combined with voting. The complainant argued the comment was condescending and derisive of transgender people and that reference to the question on gender identity was irrelevant to the point the host was making. While recognising the comments may be offensive to some people, in the context they did not meet the high threshold required to constitute a breach of the standard.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  During a broadcast on Newstalk ZB on 11 April 2024, the host, John MacDonald, discussed recent comments by the Minister for Statistics and Chief Executive of StatsNZ relating to the 2023 Census, and how the census process may change in coming years. As part of the discussion, MacDonald referred to the small number of questions about gender and sexual identity, which were included in the 2023 Census for the first time as follows.¹

So yes, it can be a pain in the backside, filling out your census paper, or filling it out online. Yes, there are some questions there that might seem a little bit weird. Give you an example, well no not weird but, but you might think… that’s irrelevant to me. Like the question ‘were you born with a variation of sex characteristics?’ Relevant or not? Not relevant, then move on. Because it’s 2024 and stuff like that matters.

[2]  MacDonald invited listeners to call in and give their opinions on whether they believed the Census should be done differently. One caller had an exchange with MacDonald in reference to the gender and sexuality question as follows:

Caller:          The census is an important thing for the country to do… but they need to get rid of the wishy-washy questions they had last time.

MacDonald: This morning I thought ‘oh yeah some of the questions were wishy washy’ and then I went, went and had a look at it before we came on air and the only one I thought that ‘okay not, not relevant to me’ was the one I just mentioned, about you know ‘were you born with a variation of sex characteristics?’ I mean, but there is people that that is relevant to.

[3]  Multiple listeners called into the programme and gave a range of views on the importance of the census generally, including those who refused to take part in the census or had worked as census takers in the past. Later in the broadcast, a caller raised the topic of costs associated with holding the census as follows:

Caller:          I thought that, um, if the census was done every three years, uh, when you go to vote, you’re tying in two, um, nationwide responsibilities for New Zealand citizens into one package. That’s bound to be cheaper…

…

MacDonald: Yeah. Imagine the queues, though, outside while people are in there determining whether they’re transgender or not, or what-what-all the answers to the questions.

The complaint

[4]  Frank Chan complained the broadcast breached the discrimination and denigration standard of the Code of Broadcasting Standards in New Zealand on the basis MacDonald’s comments were belittling and denigrated transgender people. They added:

• The comments about transgender people were ‘completely irrelevant to the topic and point being made’.
• ‘it was discriminatory by targeting a minority group and making their identity or choice of declaring that in a census to be something negative and to be made fun of or denigrated in the manner of casual discrimination or fuelling hate’.
• MacDonald’s comment was ‘discriminatory, condescending and derisive’.

The broadcaster’s response

[5]  NZME did not uphold Chan’s complaint for the following reasons:

• The host was making a point about the likely queues and delays that would result if the census was combined with voting in elections and used the questions about gender and sexual identity as an example. Although the comment ‘can be seen as critical of those who are transgender or struggling to come to terms with their gender identity’, it does not meet the high threshold to constitute a breach of the standard.
• MacDonald’s comment was a ‘single off-the-cuff comment that was not dwelt on or repeated’ and was not likely to encourage discrimination against or denigration of transgender people.

The standard

[6]  The discrimination and denigration standard² protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.

[7]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.³

Our analysis

[8]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[9]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression – which includes the broadcaster’s right to offer a range of content and programming, as well as the audience’s right to receive that content – against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁴

[10]  The importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find a broadcast encouraged discrimination or denigration in breach of the standard. Broadcast content which has the effect of reinforcing or embedding negative stereotypes may also be considered.⁵

[11]  The complainant has argued that MacDonald’s comments ‘imagine the queues, though, outside while people are in there determining whether they’re transgender or not’, was irrelevant to the point he was making and was a deliberate attempt to denigrate and belittle transgender people.

[12]  We agree with NZME that transgender people are a ‘recognised section of the community’ to which the standard applies.

[13]  Context is important in determining complaints under the discrimination and denigration standard. The following contextual factors are relevant:

• MacDonald’s comments were made during a discussion of the potential benefits and disadvantages of combining the census with voting and he referred to people having to determine the answers to questions about ‘whether they’re transgender or not’ as an example of possible delays due to the large number of questions.
• The comments were a brief, off-the-cuff remark as part of an approximately hour-long discussion of the census.
• MacDonald’s tone was matter-of-fact rather than derisory.
• Earlier in the broadcast, MacDonald had made comments affirming the importance of questions on gender and sexuality being included in the census.
• Newstalk ZB is targeted at adults aged 40-59 years old. There are audience expectations that NZME will, at times, broadcast controversial or unpopular opinions.⁶

[14]  We accept that, in the context of a discussion on the potential issues of combining the census with voting, using the question on gender identity as an example may be interpreted by some listeners as singling out transgender people for condescension and derision. However, noting the brief nature and focus of the relevant comments, as well as MacDonald’s matter-of-fact tone and earlier comments, we consider the statement did not carry invective towards transgender people or reach the high threshold necessary to find a breach of the standard.

[15]  Accordingly, we do not consider there was sufficient potential harm caused by the broadcast to warrant regulatory intervention and the consequent restriction of the broadcaster’s and audience’s right to freedom of expression.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Susie Staley
Chair
24 July 2024    

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Frank Chan’s formal complaint to NZME – 12 April 2024

2  NZME’s response to the complaint – 13 May 2024

3  Chan’s referral to the Authority – 7 June 2024

4  NZME’s further submissions – 24 June 2024

¹ Stats NZ | Tatauranga Aotearoa “2023 Census first to collect gender and sexual identity from everyone in Aotearoa New Zealand” (online ed, 19 October 2021)
² Standard 4, Code of Broadcasting Standards in New Zealand
³ Guideline 4.1
⁴ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁵ Guideline 4.2
⁶ See O’Leary and New Zealand Media Entertainment Ltd, Decision No. 2020-009 at [11] for a similar finding.