BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld two complaints regarding an interview of American philosopher and gender theorist Judith Butler by Kim Hill. The interview discussed ‘the debate about who can be classified as a woman’ and used the term ‘TERF’, an acronym meaning trans exclusionary radical feminist, to describe those ‘who oppose transgender as a phenomenon and transgender rights more broadly’, particularly through excluding trans people from women-only spaces. The Authority found the broadcast was not discriminatory towards women and the term ‘TERF’ was used as part of a discussion of the debate and the expression of legitimately held opinion.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  Kim Hill interviewed American philosopher and gender theorist Judith Butler on Saturday Morning on 17 October 2020 on RNZ National. The interview was introduced:

The term ‘gender ideology’ has sparked fury in many countries. It sounds threatening, of course, and it's become a shorthand descriptor for the theory that gender is socially constructed, rather than biologically determined. And it's used, the term gender ideology, by the opponents of that theory, who tend to proclaim that boys are boys, girls are girls, it's biological. Now, the argument is raging now around trans rights…The debate about who can be classified as a woman has become a shouting match between transgender activists and some feminists or ‘TERFs’ – trans exclusionary radical feminists. Judith Butler is regarded as revolutionising attitudes towards gender with a book she published in 1990 called Gender Trouble, which, amongst other things, introduced the idea of gender as performance.

[2]  Ms Hill and Professor Butler discussed the term ‘TERF’ (pronounced ‘turf’) including as follows:

Judith Butler:   …the feminists who oppose transgender as a phenomenon and transgender rights more broadly are arguing that it does make a difference what your biology is…They may not say that your biology decides what kind of job you take or what kind of person you love, what the gender of the person you love. Maybe they are feminists enough to say that those are zones of freedom that should be safeguarded. I presume they are, but they would say that there's something irreducible about biological difference and that those who seek to dispute its meaning or its centrality are, are deeply mistaken.

Kim Hill:           I have received a text which tells me that calling women TERFs, trans exclusionary, radical feminists, is disgusting.

Judith Butler:   Disgusting? Well, you know, I think that, you know, I mean, trans exclusionary, radical feminist is a description. They do exclude trans people. They do represent one strain of radical feminism. I think there are other strains of radical feminism that they don't represent, so let's keep in mind, as you suggested, that the history of feminism is complex and can, and takes on a lot of different meanings. But also, I think – TERF, TERF is a term which, you know, when you turf somebody, you put them out of play, you put them on a shelf, you, you take them out of the public domain. You, you lock them away or you exclude them. And I think turfing and excluding actually work well, poetically. So I'm sorry if some people are offended, but I'm quite sure that the offence done to people who hold this position is nowhere near as profound or as debilitating as the offence done to transgender people.

The complaint

[3]  Beth Johnson and Jennifer MacKinnon both complained the use of the term ‘TERF’ breached the discrimination and denigration standard. Their submissions included:

Johnson

• ‘TERF’ is ‘widely recognised as a misogynist slur’. The Economist¹ ‘noted "TERF" may have started as a descriptive term "but is now used to try to silence a vast swathe of opinions on trans issues and sometimes to incite violence against women"’.
• ‘Women have been labelled TERF online for simply stating that they believe biological sex is real and matters politically. To hear Kim Hill using this term repeatedly to describe a group of women has a chilling effect on those who speak up in defence of women’s rights.’
• ‘No matter how descriptive a word is, when it is used pejoratively by the majority of people using it, over time it becomes an offensive word. TERF is akin to a racist insisting that they are using the N-word purely descriptively, as its original Latin meaning is “black”.’

MacKinnon

• ‘The use of the acronym TERF shuts down debate, and encourages discrimination against a huge section of the community based on biological sex.’
• ‘This deliberate strategy of exclusion is exposed by Judith Butler’ through her comments ‘when you [turf] someone you put them out of play, you put them on a shelf, you take them out of the public domain…you exclude them’.
• ‘In my view a neutral description should have been used. Instead, RNZ chose to use a negative and highly charged instrument of exclusion which denigrates the reputation of a group of biological women who hold a different viewpoint to gender identity zealots and RNZ, namely the acronym TERF.’
• ‘TERF is also commonly used and known as a slur, and frequently perceived as a type of hate speech because the label is often accommodated by threats of violence and death.’
• ‘I believe that Kim Hill and Judith Butler have discriminated [against] a section of the community on account of sex because this particular group are all biological females…’
• ‘Psychological abuse towards biological women is evident in this interview. When Judith Butler claimed that biological women who fear the presence of a penis in their female only spaces are in a “fantasy …about what people with penises can do”, there is an implication that the concerns of biological women are not real.’

The broadcaster’s response

[4]  RNZ did not uphold the complaints for the following reasons:

• The term ‘TERF’ is descriptive. It is ‘a shorthand term to refer to an [ill-defined] group of feminists who take exception to others sharing their space’.
• The term was not used to cause insult and intimidation in the interview. ‘There was in fact some discussion in the interview regarding the term and Ms Butler rejected the notion that the use of the term was "disgusting".’
• ‘It is difficult to see how the comments made would affect "TERFs" in any manner as envisaged by this standard is there is no encouragement offered by the programme host nor was there any invective behind the use of the term.’

The standard

[5]  The discrimination and denigration standard² states broadcasters should not encourage 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. It protects sections of the community from verbal and other attacks, and fosters a community commitment to equality.³

[6]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular group, to their detriment. Denigration is defined as devaluing the reputation of a particular section of the community.⁴ The importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in contravention of this standard.⁵

Our analysis

[7]  The right to freedom of expression is an important right in a democracy and it is important that we weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

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

[9]  The discrimination and denigration standard applies only to recognised sections of the community, which are consistent with the grounds for discrimination set out in the Human Rights Act 1993.⁶ Therefore, the first question is whether the broadcast commented on a recognised section of the community for the purposes of standard 6.

[10]  The complainants suggested the term ‘TERF’ is discriminatory towards women; however, the term is used to describe people who hold a certain view and does not purport to describe women as a group. Akin to our findings on the term ‘climate change deniers’,⁷ people who hold the views which lead to them being called ‘TERFs’ are not a recognised section of the community to which this standard applies.

[11]  In any event, the statement, as used in the context of this broadcast, did not carry the level of condemnation required to find a breach of the standard. Professor Butler was explaining how the term ‘TERF’ is used in the context of debate around gender issues, from her perspective within the debate. Her tone was calm and measured. Her comment about how the word ‘turf’ can colloquially mean ‘to exclude someone’ was a play on words and an observation that the word turf, the acronym TERF and the concept of exclusion work well together ‘poetically’. This criticism and description is a legitimate expression of opinion which is a valuable aspect of free speech.

[12]  Accordingly, we do not uphold this complaint.

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

Judge Bill Hastings

Chair

28 April 2021    

Appendix

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

A – Johnson

1  Beth Johnson’s complaint to RNZ – 21 October 2020

2  RNZ’s decision – 3 December 2020

3  Ms Johnson’s referral to the Authority – 15 December 2020

4  RNZ’s final comments – 10 February 2021

5  Ms Johnson’s final comments – 17 February 2021

B – MacKinnon

6  Jennifer MacKinnon’s complaint to RNZ – 31 October 2020

7  RNZ’s decision – 3 December 2020

8  Ms MacKinnon’s referral to the BSA – 23 December 2020

9  RNZ’s final comments – 16 February 2021

10  Ms MacKinnon’s final comments – 3 March 2021

¹ The Economist (29 June 2018) “Transgender identities: a series of invited essays” <www.economist.com>
² Standard 6 of the Radio Code of Broadcasting Practice
³ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁴ Guideline 6a
⁵ Guideline 6b
⁶ Section 21
⁷ Foster and Television New Zealand Ltd, Decision No. 2017-009 at [9]