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 an interview on Saturday Morning, where the host misgendered and ‘deadnamed’ the interviewee, breached the discrimination and denigration standard. While the Authority acknowledged the potential harm in the host’s words, it found the words were directed at the interviewee as an individual, not a section of society as required by the standard. The Authority, in implying the fairness standard, did not consider listeners would have been left with a negative impression of the interviewee. The potential harm therefore did not reach the threshold justifying regulatory intervention.   

Not Upheld: Discrimination and Denigration, Fairness

The broadcast

[1]  During the 11 February 2023 episode of Saturday Morning, host Kim Hill interviewed poet/rapper/author/artist Kae Tempest. The interview included discussion about Tempest’s latest album The Line is a Curve, as well as discussion of Tempest’s transition to non-binary. The discussion of Tempest’s transition was included in the introduction to the interview, where Hill introduced Tempest by their chosen name ‘Kae’, then referred to their ‘deadname’,¹ and misgendered² Tempest (who uses they/them pronouns) several times:

Hill:            She’s a London based UK rapper. She’s a poet. She’s a playwright. She’s a performer. She’s a recording artist. They. She. I keep calling her she, which is entirely wrong. And it’s a very hard thing to get your head around if you don’t get into the habit. They won the Ted Hughes Award for the long form narrative poem Brand New Ancients among many other awards. Their work has had a powerful blend of the political and the passionate. They will be in Auckland and Wellington at the end of the month, and their latest album is The Line is a Curve. I spoke to Kae in London this week, about to go on tour, and they picked These are the Days as a song for us to play from the album.

[2]  Later in the interview, Hill questioned Tempest about their transition to non‑binary. Segments from this part of the interview included:

Hill:            Do you want to talk about what you announced in 2020, which is that you were changing your name from [deadname] to Kae, and are now non-binary.

Tempest:  What I should say is that I’m really happy to be talking to you and to have the opportunity to talk about my records and my work with you. And I’m really grateful for the opportunity to let you know that when you’re talking to a trans and non-binary person, if you use their previous name, their deadname, it can be really painful for them.

Hill:            I understand.

…

Hill:            You don’t want to talk about this at all, do you?

Tempest:  Well, it’s not that I don’t want to talk about it. It’s just, it’s the ways in which it’s discussed. It can feel slightly unsafe sometimes. It’s quite a kind of hot topic, a thorny topic. And it’s also just my life. And um, sometimes it can feel an imbalance just suddenly kind of plunging into something with someone that is… You know it’s your, it’s your life. It’s like my body? It’s no big deal, but it’s also everything… So, I just have to be slightly careful to protect myself a little bit.

The complaint

[3]  Jazmine Bell complained the broadcast breached the discrimination and denigration of the Code of Broadcasting Standards in New Zealand on the basis Hill deadnamed, misgendered and was disrespectful to Tempest. The key points of the complaint were:

• Correct pronouns are not difficult to understand/use.
• Tempest was there to speak about their tour, not trans issues.
• ‘Tempest should not have been put in a position of having to try to explain their identity as much as they were made to, and should not have been pushed on the topic to the point that they had to tell Hill they felt “unsafe”’, and had to educate Hill on the harm of Hill using their deadname.’
• ‘Hill kept saying “forgive me” as an excuse to keep [questioning Tempest about their identity], even when’ Tempest was uncomfortable.
• ‘There [was] clear ignorance and bullying behaviour under the guise of being a journalist and this caused distress.’

Jurisdiction – Scope of Complaint

[4]  The first issue considered by the Authority was whether the complaint, which only expressly relied on the discrimination and denigration standard, should be treated as impliedly raising the fairness standard.

[5]  Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:³

…it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[6]  RNZ argued the Authority had no jurisdiction to imply the fairness standard when not expressly raised in the first instance, noting:

• RNZ considered the implication of standards a ‘significant change in the manner in which complaints are processed since the High Court decision, and a change which has a material bearing on how that decision is applied’. This is the ‘first time that RNZ has been confronted with the Authority’s move to interpret a complaint in this manner’ (noting previous decisions implying standards either did not involve RNZ as a party or submissions were not sought from RNZ on this issue).
• ‘The fact of the matter is that the complaint handling system that RNZ [and other broadcasters use] has moved on considerably since that High Court decision… It is entirely clear and plain to a complainant at that early stage of the complaints process that they must nominate which standards they think have been breached. It is not complicated, it is clear, and that the complainant has access to the complete wording of the standards to assist them in making their choices.’
• ‘Our view is that had Justice Williams [in the above High Court judgment] had the benefit of that knowledge when making his decision some years ago a somewhat different outcome could and should have been expected in his decision making.  RNZ submits the introduction of the online form with a mandatory “tick box” to nominate standards by the complainant since the issuing of the High Court decision upon which the BSA relies, makes the application of that decision in these present circumstances questionable.’

[7]  We do not agree. The High Court clearly articulated our jurisdiction to imply standards when the above tests have been met. While developments in broadcasters’ complaints processes may have reduced the need to imply standards as the process is more accessible to audiences, the underlying statutory rationale of ensuring the system operates with as little formality and technicality as required remains. Whether the above tests have been met will be complaint-specific (and the Authority traditionally provides its reasons on why the implication of a standard is considered appropriate).

[8]  In this instance, we consider implication of the fairness standard appropriate. While the original complaint did not explicitly rely on the fairness standard, its wording at paragraph [3] can be reasonably interpreted as raising issues relevant to this standard. We also consider implication of the fairness standard reasonably necessary in order to properly consider the complaint. As the discrimination and denigration standard is focused on harm to sections of the community, rather than particular individuals, we do not consider the standard adequately captures the complainant’s key concerns.

[9]  The segment was about Tempest and their lived experience, particularly through responses such as ‘it’s your life. It’s like my body? It's no big deal, but it's also everything, So, I just have to be slightly careful to protect myself a little bit’. Equally, we consider the statements made by Hill were directed toward Tempest as an individual, not at the trans/non-binary community as a whole. For this reason, the discrimination and denigration standard does not apply.⁴ On this basis, analysis under the fairness standard is reasonably necessary in order to properly consider the complaint and we direct our analysis accordingly.

The broadcaster’s response

[10]  RNZ did not uphold the complaint for the following reasons:

• The name used by Hill is the name by which Tempest was previously known. Hill occasional erred in using she/her pronouns instead of they/them which Hill ‘apologises for at the outset, because, she says, she found it difficult to adapt to’.
• ‘Overall, the interview can be characterised as sensitive. Ms Hill makes the necessary journalistic inquiry into Kae Tempest’s change of pronouns, as fans and listeners would expect. The interview reveals that Kae Tempest is uncomfortable with this discussion. When the reason for this is given as “safety”, Ms Hill ceases that line of inquiry immediately.’
• No breaches of the discrimination and denigration standard ‘were identified in [the] complaint and none could be found in the broadcast.’

[11]  When considering whether to imply the fairness standard, we also sought RNZ’s substantive submissions on fairness. RNZ declined to provide any comment until the jurisdiction issue was resolved. In the interests of determining this complaint efficiently,⁵ and with the benefit of RNZ’s high level comments above, we considered we had enough information to continue with our determination of the complaint. We do not consider our decision to imply the fairness standard prejudices RNZ in circumstances where their above comments are also relevant in assessing the fairness standard, and they have been provided opportunities to submit on this point.

The standard

[12]  The fairness standard⁶ protects the dignity and reputation of those featured in programmes.⁷ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

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

[14]  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 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.⁸

[15]  In this case, we acknowledge the potential harm and offence to Tempest in misgendering⁹ and deadnaming¹⁰ them. We also consider Tempest responded well and acknowledge their choice to take the opportunity to educate Hill on the impact of Hill’s words on them and possibly other trans or non-binary people Hill might meet, going forward. However, for the reasons that follow, we do not consider the potential harm reached the threshold justifying a restriction on the broadcaster’s right to freedom of expression.

[16]  A consideration of what is fair will depend on the nature of the programme and the context, including the public significance of the broadcast.  We take into account the nature of the individuals (for example, whether they were public figures familiar with the media, as opposed to ordinary persons with no media experience) and whether any critical comments were aimed at them in their professional or personal lives.¹¹

[17]  The question for us is whether Tempest was treated unfairly. The complainant submits Tempest was treated unfairly, in that they were: treated disrespectfully by being misgendered and deadnamed; made to speak about an issue they were uncomfortable with; and were ‘bullied’.

[18]  We acknowledge some listeners may have found Hill’s comments offensive, and that Tempest may have found the interview uncomfortable. However, in this case, we have not found harm at a level meriting restriction to the right to freedom of expression. In reaching this finding, we note:

• Tempest is an acclaimed artist who has been in the media spotlight for more than a decade, and is familiar with dealing with the media.
• Tempest was still able to get their message about their album and tour across, as well as to discuss their transition to non-binary.
• In our view, Tempest handled the interview (and particularly questions concerning sensitive topics) well and the segment was unlikely to leave listeners with a negative impression of Tempest.
• While potentially insensitive and harmful to Tempest, Hill’s words were not critical or intentionally disrespectful of Tempest: they did not come across as malicious or nasty (although we do note intention in this respect may not ameliorate the harm some may experience from misgendering).¹²
• Hill ended the line of questioning shortly after becoming aware of Tempest’s discomfort, and transitioned smoothly into another topic for discussion.

Concluding comments

[19]  The above findings mean the broadcaster has complied with the fairness standard. However, given the topical nature of this complaint, we encourage broadcasters to be aware of the evolution of language over time and the importance of keeping pace with audiences’ changing expectations of language used. As this complaint illustrates, harm can be caused regardless of the speaker’s intentions.

[20]  Broadcasters can utilise recent research on such issues, such as the United Kingdom’s Office of Communications’ (Ofcom) research into offensive content, and specifically, offensiveness in relation to misgendering and deadnaming people.¹³

[21]  That research found that while not everyone would be familiar with or aware of the most appropriate ways of describing trans people, attitudes in society are quickly changing. Regarding deadnaming, participants generally felt there was less room for mistakes and viewed this as more deliberate than misgendering. It was considered offensive, rude and lacking common courtesy to call someone by the wrong name, regardless of the individual’s gender identity. Further, participants considered it was the responsibility of presenters and reporters to know who they are speaking to and to use the correct name.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
30 May 2023    

Appendix

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

1  Jazmine Bell’s formal complaint – 11 February 2023

2  RNZ’s response to the complaint – 28 February 2023

3  Bell’s referral to the Authority – 3 March 2023

4  RNZ’s confirmation of no further comment – 24 March 2023

5  RNZ’s objections to the implication of standards – 27 and 28 April, and 4 and 8 May 2023

¹ See: “deadname” – ‘The name that a transgender person was given at birth and no longer uses upon transitioning’ Merriam-Webster Dictionary <www.merriam-webster.com>  
² See: “misgender” – ‘To identify the gender of (a person, such as a non-binary or transgender person) incorrectly (as by using incorrect label or pronoun)’ Merriam-Webster Dictionary <www.merriam-webster.com>
³ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
⁴ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand at page 12
⁵ Crown Entities Act 2004, s 50
⁶ Standard 8, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁸ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁹ Dr. Sabra L. Katzwise “Misgendering: What it is and why it matters” (23 July 2023) Harvard Health Blog <health.harvard.edu>
¹⁰ As above
¹¹ Guideline 8.1
¹² See Adam & Crawford and Radio New Zealand Ltd, Decision No. 2022-067 at [26] regarding the importance of the right to be recognised, and acknowledged appropriately
13 Ipsos MORI “Public attitudes toward offensive language on TV and radio: summary report” (September 2021) Ofcom <Ofcom.org.uk> at 49-59