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 that a segment on Morning Report breached the discrimination and denigration, and accuracy standards. The report was about trans men and non-binary people missing out on notifications for cervical screenings, due to how gender and sex are recorded by health services. The Authority found that the discrimination and denigration standard was not breached as the terminology used was specifically chosen to be inclusionary rather than exclusionary, and the inaccuracies alleged by the complainant were immaterial to the broadcast as a whole.

Not Upheld: Discrimination and Denigration and Accuracy

The broadcast

[1]  On 22 July 2022, Morning Report broadcast a segment about trans men and non-binary people missing out on cervical screenings. The segment included the following dialogue:

Host:    Trans men and non-binary people are missing regular cervical screenings because some health software systems are set up to only notify patients recorded as female. Advocates say they want better training for health providers to work with trans people and make sure they're not being disadvantaged.

Reporter:    The National Cervical Screening Programme is available to people with a cervix aged between 25 and 69. In most cases, these people, including men who are assigned female at birth, are recommended to test for cervical cancer every three years. However, trans man Josh McNally… never got a recall for screening once he changed his gender marker and was recognized as male in the health system. That was about eight years ago, and before he started to physically transition from female to male…

Moira Cluny (Te Ngākau Kahukura):    I think these computer systems, in a lot of cases don't account for trans or non-binary or intersex people existing at the moment. They're really developed based on normative assumptions about bodies and lives.

Reporter:    Dr Torrance Merkle says a lot of the problems come down to different health providers using different software and within that doctors are having to manually override systems so that people with cervixes who aren't female still get recalls.

Reporter:    In a statement, a Health New Zealand spokesperson says work is underway to reduce barriers to cervical screening. That includes developing training for health professionals as well as resources to meet the needs of the LGBTQ+ communities. They say new systems are being developed to support gender diversity and self-identification of gender and to allow people to be notified for cervical screening even if they're not enrolled at a GP.

The complaint

[2]  Hilary Oxley complained that the broadcast breached the discrimination and denigration, and accuracy standards of the Code of Broadcasting Standards in New Zealand:

Discrimination and denigration

• The description of women as ‘people with cervixes’ denigrates women as being simply body parts - the broadcast refers to trans men, non-binary people, and people with cervixes, but not women. Men are not referred to in similar reporting as ‘people with prostates’ which highlights the misogyny in this type of language.

Accuracy

• The complainant alleged the statements: “These people, including men who are assigned female at birth”; “before he started to physically transition from female to male”; and “so that people with cervixes who aren’t female”, were inaccurate. The complainant stated: ‘Women assigned female at – or before – birth do not grow to be men’; ‘Humans cannot change from one sex to another’; and ‘a person with a cervix is female, whether or not they identify that way’.

[3]  Upon referral to the BSA, the complainant also sought to raise the fairness and balance standards. Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standards raised in the original complaint to the broadcaster. However, in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the original complaint’s wording, and where it is reasonably necessary in order to properly consider the complaint.¹

[4]  In our view the language in the original complaint was focused on the discrimination and denigration and accuracy standards, and we cannot reasonably imply the additional standards. As such, our decision is limited to discrimination and denigration and accuracy, which we consider adequately capture the key concerns raised in any event.

The broadcaster’s response

[5]  RNZ did not uphold the complaint, stating the following:

•  ‘RNZ cannot agree with the gist of [the] complaint which brings to the fore the issues around the use of gender and sex descriptors. The reality is that a number of people do not identify in a binary fashion of either being male/female or man/woman. While the sex of a baby is normally determined at birth as either male or female based on genitalia and chromosomal make up, that does not mean to say that these are the only genders that people identify with as they move through life. Hence the term “people with cervixes” was used in this item to refer in particular to members of the transgender community.’
• ‘The reference to “people with cervixes” is not gratuitous, but merely reflects the fact that a number of people in today's society no longer identify their gender in a binary, ie man/woman fashion.’

The standards

[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]  The purpose of the accuracy standard³ is to protect the public from being significantly misinformed.⁴ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

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 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.⁵

[10]  In this case the value of the broadcast is high. It informed people of a serious issue – trans men and non-binary people missing out on important notifications for cervical screening, and the risk this adds to their health. Accordingly, we would require a correspondingly high level of potential harm to justify restricting the broadcaster’s freedom of expression. For the reasons further outlined below, we have identified no potential harm at such a threshold.

Discrimination and Denigration

[11]  ‘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.⁶ The importance of freedom of expression means 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.⁷

[12]  The complainant has alleged the broadcast denigrates women, by referring to women as ‘people with cervixes’.

[13]  The Authority does not uphold this complaint under the discrimination and denigration standard. The purpose of the terminology was to be inclusive, rather than exclusive. The term ‘people with cervixes’ was used to describe all people who require cervical screening, and was specifically used in this way to include trans men and non-binary people, as per the point of the discussion (the harm to trans men and non-binary people with cervixes, who are missing cervical screening notifications due to how gender and sex is recorded by health providers). In this context, the reference to ‘people with cervixes’ was appropriate and was not likely to encourage discrimination against, or denigration toward women.

[14]  While our role is limited to considering challenged content in the context of a particular broadcast, we also note that in other reporting on cervical cancer and screening – where the focus is not specifically on trans men and non-binary people – the inclusion of the word ‘women’ alongside references to ‘trans men’ and ‘non-binary people’ is used extensively by RNZ, other media, and New Zealand health services.⁸

Accuracy

[15]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[16]  The standard only applies to “material points of fact”.⁹ In our view, the complainant’s allegations under accuracy do not relate to any material points of fact in the context of the brief report. The focus of the item was on trans and non-binary people (people whose gender is different from the sex they were assigned at birth)¹⁰ missing out on cervical screening. The complainant’s allegations about gender identity more broadly are peripheral to the story.

[17]  Further, we do not consider the statements broadcast to be inaccurate. “A person’s concept of their self may be male, female, a blend of both or neither. Gender identity can be the same as, or different to, the sex assigned at birth”.¹¹ It is fact that some transgender and non-binary people make physical changes to their bodies – through gender-affirming surgery or hormones – to alleviate the discomfort they may experience from a discrepancy between their gender identity and their sex assigned at birth.¹² NZ law allows eligible adults to amend the sex on their birth certificate (which recognises it is not immutable as the complainant suggests).¹³

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

Susie Staley
Chair
22 November 2022    

Appendix

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

1  Hilary Oxley's original complaint - 22 July 2022

2  RNZ’s response to the complaint - 26 August 2022

3  Oxley’s referral to the Authority - 14 September 2022

4  RNZ’s confirmation of no further comments - 12 October 2022

¹Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Standard 4, Code of Broadcasting Standards in New Zealand
³ Standard 6, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ Guideline 4.1
⁷ Guideline 4.2
⁸ Time to Screen “Who should have smear tests” <timetoscreen.nz>; Health Navigator “Who should have cervical screening” (11 October 2022) <healthnavigator.org.nz>; Rosie Gordon “Covid-19 creates backlog of 50,000 smear tests” RNZ (online ed, 3 April 2022); Helen Harvey “Mobile cervical screening clinic to be set up outside Puke Ariki in New Plymouth” Stuff (online ed, 6 September 2022)
⁹ Guideline 6.2
¹⁰ Jamie Veale, Jack Byrne, Kyle Tan, Sam Guy, Ashe Yee, Tāwhanga Mary-Legs Nopera, Ryan Bentham “Counting Ourselves: The health and wellbeing of trans and non-binary people in Aotearoa New Zealand” (2019) Transgender Health Research Lab, University of Waikato
¹¹ Jeannie Oliphant, Jaimie Veale, Joe Macdonald, Richard Carroll, Rachel Johnson, Mo Harte, Cathy Stephenson, Jemima Bullock “Guidelines for gender affirming healthcare for Gender Diverse and Transgender Children, Young People and Adults in Aotearoa New Zealand” (2018) Transgender Health Research Lab, University of Waikato
¹² See Health New Zealand resource: “Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People” (7th Version) (2012) The World Professional Association for Transgender Health at 5
¹³ See Births, Deaths, Marriages, and Relationships Registration Act 1995, s 28