BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

Warning — This decision contains references to sexual violence.

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

The Authority has not upheld complaints an interview on Saturday Morning between Kim Hill and Dr Kathleen Stock, a gender critical philosopher, breached broadcasting standards, including the discrimination and denigration, balance and accuracy standards. The broadcast discussed Dr Stock’s perspective on gender identity and her experiences resulting from voicing her perspective, having resigned from her position following a student campaign that accused her of transphobia. The Authority acknowledged the potential harm of the interview, but ultimately found the importance of freedom of expression outweighed any harm caused. The broadcast was clearly signalled as presenting Dr Stock’s perspective, to which she was entitled, and throughout the interview Hill challenged Dr Stock’s views, leaving the audience with a more balanced impression on the issue. Considered as a whole, the broadcast was unlikely to encourage discrimination, and listeners would not have expected the presentation of further alternative perspectives in a broadcast of this nature. A majority of the Authority considered the points alleged to be inaccurate were either opinion (to which the accuracy standard does not apply) or not materially inaccurate. The minority considered two points (that trans women were men, and trans women were more likely to sexually assault people in jail) were materially inaccurate. The violence standard was not breached.

Not Upheld by Majority: Discrimination and Denigration, Accuracy, Balance, Violence

The broadcast

[1]  On Saturday Morning, broadcast by RNZ on 14 May 2022, host Kim Hill interviewed Dr Kathleen Stock, former Professor of Philosophy at the University of Sussex. The segment started with Hill stating, ‘this next interview will offend some people’ and introduced Dr Stock as follows:

She'd recently received an OBE for services to education, and after a student campaign that accused her of transphobia, she resigned. She'd become a hate figure. The accusations centred on her book, her recent book Material Girls, in which she argues that those who transition from the sexual category they were born into are living an immersive fiction. The debate about sex and gender and identity has become toxic, and Kathleen Stock says she has fallen prey to demoralising, self-aggrandising, polarised cultural moment, in which disagreement is a sign of corrupt character.

[2]  The 50-minute interview revolved around Dr Stock’s perspective on gender identity and her experiences resulting from voicing her perspective. Given the length of the interview, and the scope of the complaints, we outline some of the comments we consider are key to appropriately determining these complaints, which include:

• Dr Stock stating:
  I also started writing about my concerns about premature child transition and calling trans women lesbians… People thought that I was being very cruel and couldn't understand why I was saying things like trans women are male because I felt it was really important to point that out. They thought that was transphobic to say that. So yeah, it started there, really. And I've been ‘no-platformed’ and there's been multiple open letters and petitions against me. Protests on my campus. Extra security at my talks. All sorts of shenanigans, really.
• References to conversion therapy as ‘talking therapy around gender identity’ and noting its ban is ‘absolutely crazy’ as Dr Stock considered from:
  the testimonies of transition, sorry detransitioners, hundreds and thousands of them congregating on the Internet and ones who have come out and bravely kind of shared their stories. So these are kids now, sort of mid-twenties who have had double mastectomies, who've had hysterectomy, who have had severe surgery on their genitalia that boys and girls, men and women, and they are, in some cases, in great distress about what happened to them, which they didn't think they could consent to. And they retrospectively look back and say, of course, I was confused. I was going through a phase and they didn't have therapy in some cases.
• In response to Hill’s comment ‘our official line on puberty blockers is that, quote, “they’re safe, they’re fully reversible and it allows young people time to explore their gender health options”’, Dr Stock noted that was not true and referred to the Karolinska Institute’s research that puberty blockers ‘can cause physical harm, bone density problems, kidney problems and also other height issues. I mean, basically they stop puberty, and puberty serves a function in a healthy body.’
• Children who have puberty ‘stopped can’t always get that back’, noting data from the UK’s gender identity service which suggests the majority of children on puberty blockers will go on to receive cross-sex hormones. ‘And since they start the puberty blocker process quite early, in some cases way before, we would normally say they could consent to the whole train of events that is now going to happen and that will leave them with irrevocable bodily changes, changes in their sexual characteristics, facial hair, all sorts of things. It's very worrying indeed.’
• There’s a long tradition of teenage girls ‘wanting to hurt themselves… to find different cultural manifestations to express their adolescent distress’ and issues with gender identity could be ‘akin to an eating disorder’ as ‘there’s a lot of body self-hatred in adolescent girls’.
• People cannot change their sex, ‘biological sex is found in many, many species throughout nature, including ours.’ (Dr Stock acknowledged ‘legal sex changes’ occurred but considered the terminology was a ‘bit confusing’.)
• Biological sex ‘makes a difference’ as seen in men that have transitioned who have retained:
  many biological differences that would make a difference socially in terms, and you can see that particularly in sport. So they retain upper body strength, they retain limb lengths, they tear muscle, twitch muscles, you know, all sorts of physical advantages. And that's because they went through puberty where testosterone was the dominant hormone there. And women don't go through that kind of puberty. And obviously we have different chromosomes, too. So, all I'm saying is those facts exist.
• Dr Stock’s greatest concern is ‘the laws and the policies and the powerful institutions that are pushing [self-identification / gender identity]. And it's not the individuals who are making meaning out of their lives by doing this.’
• When asked why men might want to identify as women, Dr Stock referred to a convicted paedophile who stated, at sentencing, they were transitioning to be a woman.¹ She considered men might want to transition ‘to get into a better, easier prison’ and this was occurring in UK, Ireland, Canada and California because ‘predatory males want to be in changing rooms with naked women.’ She also considered some men were transitioning to ‘beat women at sport’ as they were ‘mediocre in their own category’.
• There are male rapists in women’s prisons who haven’t had surgery, and in some cases have not had legal sex changes. ‘They have simply identified themselves into women’s prisons and they are convicted male rapists. That is a fact’ providing an example from a few years prior.²
• Dr Stock noted it was ‘tempting to keep reducing what I'm saying to be about trans women specifically, but it's about males.’ She referred to statistics stating over 90% of serious sexual assaults on women occur by males and considered trans women should be ‘excluded from women’s changing rooms because they’re male’ as with all males (with the slight caveat of people who are ‘indistinguishable from women, it’s unworkable in practice to exclude transsexuals from women’s changing rooms.’)
• It was important to be able to discuss the social impact of biological sex, and sexual culture more generally.

The complaints

[3]  Pip Adam and Johnny Crawford complained the broadcast breached the discrimination and denigration, balance, accuracy and violence standards for the following reasons:

Discrimination and Denigration

• ‘Throughout the interview, Stock misgendered trans people with the terms “trans-identified male” and “trans-identified female” and said that “Trans women are male.” These types of pejoratives are offensive to the trans community and encourage discrimination against that community by implying that their chosen gender is incorrect.’ (Crawford)
• ‘Moreover, Stock made repeated reference to “men self-ID-ing to go into changing rooms". She later used the same argument against “male rapists in women’s prisons,” a statement calling for incarceration of trans women with men. These references rely on a transphobic stereotype that trans women are men pretending to be women in order to commit sexual assault.’ These comments ‘have the potential to cause harm by normalising transphobia’. (Crawford)
• Crawford referred to the Authority’s decision in Cant in support of their argument broadcasters need ‘to respond to social norms’.³ They also noted ‘the recent trend of broadcasters like RNZ giving exposure to “gender critical”⁴ figures from overseas like Stock has coincided with an increase in violence against the trans community’.⁵
• Dr Stock’s comments amounted to hate speech, given the inaccuracies and misinformation. (Adam)
• With reference to the definition of discrimination, ‘The basis of Dr Stock's argument expressed is that trans people should be refused healthcare, treated differently in prisons and should under-go conversion therapy to change who they are. This does seem like different treatment to other sectors of the community.’ (Adam)
• Adam acknowledged ‘discussions of gender and sex are often presented as a debate of ideas but’ implored the Authority to ‘remember that behind this debate are real people... people [whose] lives are made so much harder by this type of interview going unchecked into the world.’

Balance (Adam)

• The programme concerned ‘has never included a medical or scientific professional to speak on the subjects Stock spoke on… There are plenty of scientists and medical professionals who could speak knowledgeably about the other side of the arguments Stock is making and I don't think the programme has done enough to present these views.’ Alternatively, another philosopher could provide balance.
• RNZ’s response regarding other programmes providing balance, and particularly the ‘niche programming’ referenced, is insufficient as this interview ‘had the opportunity to reach a wider audience many of whom would not seek out programming about these topics. This same audience has not had the benefit of a person adding balance to this issue.’

Accuracy

• Dr Stock is a ‘Professor of Philosophy but was allowed to make claims about biology and chemistry without backing these up with scientific evidence.’ These ideas were presented in a way that ‘mimicked authoritative fact and will therefore cause confusion.’ There is ‘scientific evidence and lived experience to show that much of what Stock said is incorrect and untrue.’ (Adam)
• A number of statements were identified as being inaccurate, including:
  • ‘We don’t know what puberty-blockers do…’
  • ‘I don’t think you can change your sex.’
  • ‘90%+ of sexual assaults on women are committed by men.’
  • ‘Statistically it is much less likely for a woman to rape someone in a women’s prison than a trans woman.’ (Crawford referred to a BBC news article noting there is no ‘evidence that being transgender is in itself link to risk.’⁶ They also considered the ‘omission of the fact that trans people are much more likely to be victims of rape, particularly in prisons… is particularly misleading.’)⁷
  • ‘There are hundreds of thousands of de-transitioners congregating on the internet… There are people in their mid-20s who’ve had double-mastectomies, hysterectomies, serious genital surgery… In some cases they were put on cross-sex treatments after a couple of appointments.’
  • ‘Men self-ID-ing to go into changing rooms’ (Crawford noted there were ‘no documented examples of self-ID laws being abused by men seeking to abuse women’).⁸
  • ‘Trans men are not excluded by radical feminists.’
  • ‘The gay rights movement was not accused of taking rights away from others.’
  • ‘[People born male] retain upper body strength, limb length, twitch muscles, all sorts of physical advantages, and that's because they went through a puberty where testosterone was the most dominant hormone.'
• Adam also expressed concern about the manner in which the broadcaster’s response addressed the standard’s application to opinions which suggested opinion was ‘in some way fact’ or did not ‘need to meet the standards of accuracy’.

Violence (Adam)

• Many of Dr Stock’s comments were directed ‘at children and members of a minority that suffers increased levels of violence. In this way it felt like an incredible imbalance of power and therefore violent, discriminatory and unfair.’
• RNZ’s preface of the interview, that it will ‘offend some people’ was superficial and said to make people listen, ‘If this was informative which people exactly should regulate their behaviour?’

The broadcaster’s response

[4]  RNZ referred to its purpose, as an independent public radio company serving the public interest, and the importance of freedom of thought and expression in a democratic society. With reference to this context, and the interpretation of broadcasting standards in a rights-consistent manner, it did not uphold the complaints for the following key reasons:

• ‘Given the very wide and current interest in transgender issues, Dr Stock’s resignation from the University of Sussex and her controversial concerns about gender self-identification, the producers of Saturday Morning chose to arrange a feature-length interview examining all these issues in considerable depth. Such an interview is in keeping with both the context and purpose outlined above.’
• The programme began with the warning ‘this next interview will offend some people.’

Discrimination and Denigration

• ‘While RNZ agrees that Dr Stock’s views [regarding expression of gender identity] may be controversial to some of our audience, these ideas represent a genuine expression of serious comment, analysis or opinion as outlined in [guideline 6c] of the standard. They do not encourage different treatment or devalue the reputation of any identifiable group and they lack any malice or nastiness described in [guideline 6b]. Any interpretation of broadcasting standards must be consistent with the right to freedom of expression contained in the New Zealand Bill of Rights Act. When the broadcasting standards applicable to the complaints are interpreted in that way, it is clear that in airing the broadcast RNZ did not breach any broadcasting standard.’

Balance

• ‘The interview with Dr Stock explored her views on the philosophical complexities of gender identity. It did not purport to balance or compare or contrast those views with anyone else’s’, citing guideline 8c.
• ‘However, RNZ has broadcast many other interviews, reports and analysis during the period of interest that reflect a different view. In particular, RNZ has actively promoted its very popular series Let’s Be Transparent which presents a range of views including the experiences of those undergoing a gender transition.’

Accuracy

• The relevant comments reflected ‘Dr Stock’s honestly held opinion and do not mislead’.
• RNZ considered that with a person of Dr Stock’s ‘standing and expertise in the topic being discussed, we should be able to rely on her comments as being those of an expert and no further checking need be done on the media company’s part.’

Jurisdictional issues

Online content

[5]  This programme was broadcast on radio and subsequently published on RNZ’s website.⁹

[6]  A portion of the complaints and RNZ’s response (not reproduced above) related to content in the corresponding online article which was not included in the broadcast. The Authority’s jurisdiction does not extend to this platform, so we do not deal with these particular concerns in our decision.

Concurrent complaint to New Zealand Media Council

[7]  RNZ noted it has ‘had this complaint referred to the [New Zealand] Media Council’ regarding the online version. It considered it was therefore subject to a ‘double jeopardy’ and indicated reluctance to engage with the Authority’s process. As we have determined recently, we do not consider a complaint going through the Media Council’s processes detracts from this Authority’s statutory obligation to consider complaints validly referred to us.¹⁰

[8]  Further, we have confirmed, with both the complainants and the Media Council, neither complainant has made a complaint with the Council. There can be no suggestion of ‘double jeopardy’ if different complainants are exercising their independent rights through different avenues

[9]  Notwithstanding RNZ’s position, we consider we received sufficient input from them to enable us to determine the complaints.

The standards

[10]  The discrimination and denigration standard¹¹ states broadcasters should not encourage discrimination against, or denigration of, any recognised ‘section of the community’. It aims to protect sections of the community from verbal and other attacks, and to foster a community commitment to equality.¹²

[11]  The balance standard¹³ states when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.¹⁴ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.¹⁵

[12]  The purpose of the accuracy standard¹⁶ is to protect the public from being significantly misinformed.¹⁷ It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[13]  In our view, these three standards are most relevant and best address the key points of complaint. We acknowledge the violence standard¹⁸ was also raised, however the purpose of that standard is to protect audiences from unduly disturbing violent content.¹⁹ The standard is rarely breached on radio (as violent material has more impact visually).²⁰ Concerns raised under this standard relate to the alleged disproportional harm towards groups who already experience high levels of violence, rather than the broadcast referring to, or portraying, unduly disturbing violent content (as envisaged under the standard). We therefore do not address the violence standard in our decision.

Our analysis

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

Overview of decision

[15]  When we make a decision on a complaint that broadcasting standards have been breached, 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, in light of actual or potential harm caused.²¹

[16]  We acknowledge the complainants’ concerns and that the broadcasting of views subject to widespread criticism raises complex issues. On one hand, it is not the Authority’s role to be the promoter of social change. On the other, we acknowledge the broadcast had the potential to cause harm to the trans community (an already vulnerable community) and we highlight these harms later in our decision.

[17]  In this instance, our role was challenging and our decision finely balanced. Overall, although the broadcast discussed controversial and polarising issues, the discussion reflected Dr Stock’s opinion which is protected by the right to freedom of expression, and which was consistently challenged by Hill. We consider the discussion important as it empowered audiences to arrive at their own informed and reasoned opinions on the issue (an objective of the right to freedom of expression). We are split as an Authority, however, with regards to the extent of potential harm and materiality of some inaccuracies presented by Dr Stock. We address these differences at the end of the decision.

[18]  Before addressing the specific standards raised, we consider it appropriate to outline in further detail the broader context and values relevant to our assessment of these complaints. These include the importance of freedom of expression, and the values triggered in this instance; the potential harm of the broadcast as a whole; and mitigation of this harm through Hill’s challenging interview stance.

Freedom of expression

[19]  The openness of our society and its liberal character is recognised in the fundamental concept of freedom of expression, which is enshrined in the New Zealand Bill of Rights Act 1990. This means there should be a freedom to express and impart ideas or information, and a freedom to receive those ideas or information – a freedom which is fundamental in broadcasting. The inclination is therefore towards freedom and away from restrictions, which are only justifiable to avoid actual or potential harm that may be caused by a broadcast.

[20]  In determining these complaints, we acknowledge society’s response to gender identity has drawn polarising opinions and controversy, as evidenced in this broadcast.²² However, the free and frank exchange of opinions is an important aspect of the right to freedom of expression, and is fundamental to the operation of our democratic society.²³ There is benefit in the public knowing about the existence and nature of critical views and perspectives. The public interest is not served by having controversial perspectives aired only in online ‘echo chambers’ where they are able to propagate without any effective regulation or challenge.²⁴

[21]  At the same time, we are mindful that negative opinions towards a group (being transgender people, and specifically trans women, in this case) can have the potential to limit that group’s participation in the ‘marketplace of ideas’.²⁵

[22]  Another important consideration in this case is academic freedom as a limb of freedom of expression.²⁶ This is the idea that the encouragement of free and uninhibited research, unrestricted by social conformities and restrictions on subject‑matter, facilitates the search for truth in the marketplace of ideas.²⁷

[23]  In determining complaints regarding value-laden issues, the Authority has previously described its role as follows:²⁸

Our function is not to drive for different values or what some may say are ‘better’ values. We are required to judge what is before us against the values that our communities have and to this extent it is not appropriate for us to be the promoters of change to our societal values.

[24]  As a regulator, our role is to objectively weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast, having regard to current community norms and values. In doing so we recognise, as the Supreme Court has recently, that ‘a function of free speech under our system of government is to invite dispute’, indeed, it may ‘best serve its high purpose… when it stirs people to anger.’²⁹ When determining complaints, we must be careful not to mistake anger that may be caused by a broadcast for a reason to restrict the right to freedom of expression.

Broadcast harm

[25]  The complainants allege the broadcast caused harm to the trans community. We accept the broadcast had the potential to cause harm to this community, but for the reasons that follow later in this decision, do not consider this reached a threshold justifying a restriction on the right to freedom of expression.

[26]  We acknowledge the trans community is particularly vulnerable and that trans people are sometimes deliberately misgendered (where someone is referred to using a name, pronoun, or title that does not correctly reflect their gender) in everyday life situations.³⁰ The Human Rights Commission | Te Kāhui Tika Tangata recently acknowledged the importance of the right to be recognised,³¹ particularly in the context of an individual’s affirmed gender,³² and children using their names and pronouns.³³ This is in line with a United Nations report acknowledging the very basis of individual rights is the right of persons to be recognised as unique and distinguishable from others.³⁴

[27]  We also acknowledge cultures throughout the Pacific accept gender diversity in ways that Western cultures traditionally have not.³⁵ One such cultural identity, in an NZ context, is that of takatāpui (a term used to embrace all Māori with diverse genders, sexualities and sex characteristics).³⁶ The perspective presented in the broadcast is inconsistent with the traditional recognition of this diversity.

[28]  However, cultural acceptance of gender diversity is not uniform within these communities and we must be cautious of making any finding to that effect. As noted above, the role of the Authority is to reflect community standards and attitudes, not be the promoter of social change.³⁷

Mitigation of harm

[29]  The most important mitigating factor in this case is Hill’s handling of the interview. Hill is a pre-eminent broadcaster with extensive experience in media and long-form journalism.³⁸ Saturday Morning itself is one of RNZ’s flagship programmes, known for its expansive interviews.³⁹ Indeed, this broadcast spanned 50-minutes and included an in-depth discussion on multiple issues.

[30]  Hill’s style and tone throughout was challenging and critical. She did not sympathise with the views expressed. She acknowledged the existence of other views through engaging questioning and consistently challenged Dr Stock on various points.

[31]  Examples of such challenges include:

• Reference to the Ministry of Health’s | Manatū Hauora position on the use of puberty blockers at the time (that they are safe to use).
• Reference to NZ’s banning of conversion practices.
• Apparent contradictions in Dr Stock’s views (that trans women are men and should not be allowed in women’s changing spaces, with the ‘slight caveat’ of those that have ‘medically transitioned’).
• Supporting the case for self-identification.
• Reference to advances in human rights, particularly in the context of gay rights (and Dr Stock’s own experiences regarding the issue).

[32]  We consider the broadcast is a clear example of proper journalistic interviewing. The overall effect of the broadcast, and the impressions the audience was left with, included:

• Dr Stock’s views were subject to widespread criticism (having been introduced as the subject of student protests and becoming a ‘hate figure’).
• Her views do not reflect the norm, particularly in NZ.
• Dr Stock was not an authoritative figure on this issue.

[33]  Hill’s measured interview approach highlighted issues with the arguments presented, giving listeners a deeper understanding of the subject.

Discrimination and denigration

[34]  The discrimination and denigration standard applies only to the sections of the community listed within it. The complainants consider the broadcast discriminated and/or denigrated trans people. RNZ did not consider the broadcast devalued ‘the reputation of any identifiable group’.

[35]  We consider transgender people are a ‘section of the community’ for the purposes of standard 6. This is because the standard protects against discrimination or denigration ‘on account of sex’⁴⁰ and we interpret the term ‘sex’ as broad enough to encompass discrimination of this nature. This is consistent with the Human Rights Commission’s and the Crown Law Office’s | Te Tari Ture o te Karauna interpretation of the relevant section in the Human Rights Act 1993.⁴¹ We also consider it to be consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act.⁴²

[36]  Further, we acknowledge the trans-rights movement is an issue of public importance.⁴³ As noted above, society’s response to gender identity continues to draw polarising opinions and we are making this decision at a time where the issue is of particular significance to society.⁴⁴

[37]  As the standard applies, the issue is whether the broadcast encouraged discrimination against, or denigration of, trans people, and more specifically, trans women. Principles we consider relevant include:

• ‘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.⁴⁵
• Comments will not breach the discrimination and denigration standard simply because they are critical of another group, because they offend people, or because they are rude.⁴⁶
• The standard is not intended to prevent the broadcast of a genuine expression of serious comment, analysis or opinion.⁴⁷
• 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 breach of the standard.⁴⁸
• However, the Authority has previously found certain terms when used as part of ordinary vernacular have the potential to cause harm by embedding existing negative stereotypes or other prejudice.⁴⁹

[38]  The complainants allege the standard has been breached in three key ways:

a)  the misgendering of trans people
b)  reliance on transphobic stereotypes
c)  calling for the different treatment of trans people.

[39]  For convenience, we briefly outline the key concerns and potential harm under each heading, and then conclude with our findings under this standard.

Misgendering of trans people

[40]  The complaints here concern ‘pejoratives’ that ‘are offensive to the trans community and encourage discrimination against that community by implying that their chosen gender is incorrect’. This includes the terms ‘trans identified’ men and the phrase ‘trans women are male’.

Reliance on transphobic stereotypes

[41]  The complainants considered Dr Stock normalised transphobia by relying on transphobic stereotypes, specifically that ‘trans women are men pretending to be women in order to commit sexual assault’.

[42]  We note the evidential foundation for such views has been strongly disputed and reliance on such tropes is capable of embedding long-standing prejudice.⁵⁰

Calling for the different treatment of trans people

[43]  The concern under this heading is that the natural conclusion to be drawn from Dr Stock’s comments is transgender people should be treated differently to their detriment (egs ‘refused healthcare, treated differently in prisons, and should undergo conversion therapy to change who they are.’)

[44]  As further outlined in paragraphs [25]–[28], we acknowledge treating transgender people differently (in the sense of inconsistently with their gender identity) is likely to be harmful in multiple ways. For example, studies suggest transgender individuals are more likely to be victims of sexual assault so a transgender woman forced to use a ‘male’ restroom may be increasing their risk of assault.⁵¹

Analysis

[45]  Notwithstanding the potential for harm as outlined above, we do not consider the broadcast (when considered as a whole) was ultimately likely to ‘encourage’ discrimination against transgender people. In reaching this view, we took into account the following key contextual factors:⁵²

• Saturday Morning is advertised as a ‘programme with long-form in‑depth feature interviews on current affairs, science, modern life, history, the arts and more’.⁵³ It has an adult target audience and there is an expectation the show will include robust questioning and critique.⁵⁴
• The programme started with a warning it ‘will offend some people’.
• The interview spanned 50 minutes and covered a variety of topics focused on the personal views of Dr Stock, emphasised through phrases such as ‘I think’. This was a genuine expression of her opinion (although we note protections afforded to opinion may carry less weight where the opinion appears inconsistent with medical and societal perspectives).
• Hill’s style and tone throughout this interview was challenging and critical. She acknowledged the existence of other views through engaging questioning and challenged Dr Stock throughout the interview on various points.
• Given our view at paragraphs [27]–[28] regarding the broadcast’s inconsistency with how different cultures treat gender diversity, we also acknowledge our obligation to adopt Te Tiriti-consistent policy and practices.⁵⁵ Harms to these cultural identities may trigger Te Tiriti principles (which change as the Treaty partnership evolves)⁵⁶, particularly that of rangatiratanga, active protection and redress. These obligations are context dependent, requiring such action as is reasonable in the prevailing circumstances.⁵⁷
• The broader context is also relevant; broadcasts do not occur in a vacuum. We acknowledge, as the England and Wales Court of Appeal has recently, the issue regarding treatment of children for gender dysphoria is controversial and the subject of intense professional and public debate.⁵⁸ That case held issues regarding informed consent in this area by people under 16 years old were for doctors, not judges, to decide.

[46]  In this context, and given our view of the audience’s likely impressions from the broadcast outlined at paragraphs [32]–[33], we consider the broadcast was unlikely to encourage the discrimination against, or denigration of, trans people. While finely balanced, the potential harm of the broadcast did not reach the high threshold justifying a restriction on the right to freedom of expression. Although not every comment was challenged by Hill, the key assumptions and tenor of views overall, were.

[47]  Further, the issue of society’s response to gender identity continues to draw polarised opinions. The standard is not intended to prevent the broadcast of genuine expressions of opinion⁵⁹ and it is not the Authority’s role to stifle such debate. Freedom of speech preserves the ability for unpopular ideas and views to be shared and also recognises the role of the ‘marketplace of ideas’ for testing and moderating the debate: The threshold for limitations on that fundamental right is high.

Balance

[48]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.⁶⁰

[49]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.⁶¹ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁶²

[50]  We are satisfied the issue of gender identity, and society’s response to its expression, is a controversial issue of public importance and that it was discussed in this broadcast.⁶³ Accordingly, the balance standard applies.

[51]  The purpose of the balance standard is to ensure competing viewpoints on significant issues such as this are presented to enable listeners to arrive at their own informed and reasoned opinions.⁶⁴ A key consideration is what an audience expects from a programme, and whether they were likely to have been misinformed by the omission or treatment of a significant perspective.⁶⁵

[52]  We do not consider listeners would have expected additional perspectives to be included in the broadcast or that they were otherwise left misinformed by it, taking into account:⁶⁶

• The broadcast was clearly signalled as approaching the topic from a particular perspective, being an interview centred on Dr Stock’s opinions and experiences. Listeners would not have expected to hear the full spectrum of viewpoints in the context of this interview.
• Other perspectives were acknowledged through Hill’s questioning, as noted above at paragraphs [29]–[31], and listeners would have understood Dr Stock did not represent the majority view (see paragraph [32]).
• The standard also allows for balance to be achieved over time.[67] Broadcasters are not required to present every perspective on a controversial issue within each and every broadcast discussing that issue. Placing such a requirement on broadcasters would itself unreasonably limit their exercise of freedom of expression and editorial control, and in particular their freedom to present programmes or interviews from a particular perspective.
• Application of the standard must also reflect the present broadcasting environment in New Zealand including the proliferation of broadcast media available to audiences and a more discriminating public.⁶⁸ The issues outlined in the broadcast are regularly discussed, so it is reasonable to expect listeners would be aware of significant viewpoints on these issues.⁶⁹
• For the same reason, we do not consider the timing of this broadcast (during Saturday Morning, which Adam considers a ‘prime time’ slot) affects our conclusions.

[53]  In these circumstances, any restriction of the right to freedom of expression on this occasion – including the broadcaster’s, Dr Stock’s, and the audience’s right to hear her perspective – would be unjustified in our view. We therefore do not uphold the balance complaint.

Accuracy

[54]  Determination of a complaint under the accuracy standard occurs in two stages: first, we must consider whether the programme was inaccurate or misleading; if so, we must then consider whether reasonable efforts were made by the broadcaster to ensure the programme was accurate and did not mislead.⁷⁰

[55]  Audiences may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme as a whole.⁷¹ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’⁷² The standard is concerned only with material inaccuracy. Technical or other points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.⁷³

[56]  The standard does not apply to ‘analysis, comment or opinion’.⁷⁴ A fact is verifiable: it is something that can be proved right or wrong. An opinion is someone’s view: it is contestable, and others may hold a different view.⁷⁵ It is not always clear whether a statement is an assertion of fact or an opinion, this will depend on the context, presentation, and how a reasonable listener would perceive the information.⁷⁶ Relevant factors may include:⁷⁷

• the language used in the broadcast
• the language used in the rest of the item
• the type of programme and the role or reputation of the person speaking
• the subject matter
• whether evidence or proof is provided
• whether the statement is attributed to someone.

Accuracy analysis (Majority view: Susie Staley, John Gillespie, and Aroha Beck)

[57]  The complainants identified several statements (at paragraph [3]) they considered were inaccurate. We consider these matters can all be dealt with in one of three ways as further outlined below:

a)  Opinion – the specified statement constituted Dr Stock’s analysis, comment or opinion, to which the standard does not apply.
b)  Not material – the specified statement, if inaccurate, did not significantly affect listeners’ understanding of the programme as a whole.
c)  Accurate – the specified statement was not inaccurate.

Opinions

[58]  The item was presented as an interview with Dr Stock and her experiences following the ‘backlash’ she has received due to her position on gender identity issues. Given this starting point, we consider the majority of the interview constituted her own opinion (reinforced by the repeated use of ‘I think’ throughout) on issues and a reasonable listener would have perceived this information as such.

[59]  The free and frank expression of opinions, particularly on a topic of high public interest, is protected by the right to free speech so long as standards are maintained.⁷⁸

[60]  Turning to the specific statements identified in the complaints, we consider the following constituted Dr Stock’s analysis, comment or opinion to which the accuracy standard does not apply:

• I don’t think you can change your sex – This was clearly Dr Stock’s view, which was signposted by ‘I don’t think’ and by the introduction.⁷⁹ Although vehemently held (positioning it as fact at points in the segment), we consider listeners would have appreciated this was her opinion, and presumably part of the draw in interviewing her. Therefore, we consider this issue better addressed under the discrimination and denigration standard, above.
• Trans men are not excluded by radical feminists – We consider listeners would have understood this as Dr Stock’s analysis, comment or opinion as part of her perspective on the term ‘TERF’ (which was being discussed).⁸⁰
• The gay rights movement was not accused of taking rights away from others – This was comment or analysis offered to differentiate between the gay rights movement, which she considers did not affect the rights of others, and the trans rights movement, which she considers affects women’s rights more generally. This is reinforced by her acknowledgement there were different perspectives on this point (‘conservatives might disagree with that’).
• People born male maintain physical advantages – This assertion is controversial and subject to much debate.⁸¹ The International Olympic Committee emphasises the need for a case by case and evidence-based approach to this issue.⁸² Statements about controversial issues are more likely to be considered opinion.⁸³ In addition, this point was raised by Dr Stock in the context of arguing that biological sex ‘isn’t destiny’. She stated, ‘I think [biological sex is] a factor in outcomes, along with many other factors in outcomes’ before proceeding to offer examples of biological sex’s potential impact (including this one). No supporting evidence was offered for the statement. In this context, listeners were unlikely to perceive her views on this specific point as definitive or factual.

Not material inaccuracies

[61]  We consider the following statements were likely to be perceived as factual. Accordingly, the accuracy standard applies to them. However, if inaccurate, we do not consider they were materially inaccurate:

• It is less likely statistically for a woman to rape someone in a women’s prison than a trans woman – It is unclear which statistics were relied on for this statement, but it appeared to rely on Dr Stock’s earlier statement, ‘90+ percent of the sexual assaults, serious sexual assaults that occur on women are by males’ (addressed below). If so, Crawford has pointed to some evidence against this assertion.[84] However, we do not consider any inaccuracy in this respect would affect listeners’ understanding of the programme as a whole, which offered:
  • exposure to a critical perspective on a polarising issue
  • an opportunity to understand the reasons for the existence of such views and the experience of suffering public backlash for them.
• Men were identifying as women to go into changing rooms – Some of Dr Stock’s comments appeared to support this point as factual (ie ‘…there are plenty of males identifying as women and getting into women's prisons right now…they're definitely doing it in the UK, in Ireland, in Canada and in California… Of course, predatory males want to be in changing rooms with naked women’). We note this position has some support⁸⁵ but also acknowledge Crawford’s submission there were ‘no documented examples of self-ID laws being abused by men seeking to abuse women’.⁸⁶ In the context of the segment, we consider the point was raised primarily as a hypothetical risk regarding self-ID laws (the issue being discussed). Although arguably relying on facts, we consider any inaccuracy in the facts relied upon immaterial when considered in the context of the programme as a whole, as noted above.
• There are hundreds of thousands of detransitioners congregating on the internet – Dr Stock’s source is unclear and although we acknowledge some people do ‘detransition’,⁸⁷ there are reports suggesting the actual figure is much less than what Dr Stock represents.⁸⁸ Regardless of the figure, we consider the key point made here relates to people regretting their choice to seek gender affirming care and Hill drew this point along as an argument supporting self-ID laws. In that context, we do not consider the figure, if inaccurate, was likely to affect listeners’ understanding of the programme as a whole (as described above).

Accurate statements

[62]  We consider the following statements are also likely to be perceived as factual. Accordingly, the accuracy standard also applies to them. However, we find the statements were materially accurate:

• We don’t know what puberty blockers do – Hill challenged this statement immediately, referring to the Ministry of Health's | Manatū Hauora position on the issue (at the time, that ‘they’re safe, they’re fully reversible’).⁸⁹ Accordingly, viewed as a whole, the broadcast was not misleading with regard to the impacts of puberty blockers. Further, the position appeared to have been subject to some uncertainty at the time.⁹⁰
• 90% of sexual assaults on women are committed by men – Although we are unaware of the specific statistics relied on for this statement, the statistics we are able to source appear to be consistent with this figure.⁹¹

[63]  As we do not consider the broadcast was materially inaccurate, we do not need to go on to consider whether RNZ made reasonable efforts to ensure accuracy. We find no breach of the accuracy standard.

Minority decision: Tupe Solomon-Tanoa’i

[64]  I agree with the principles and findings of the majority on most points in the decision. Where I differ is the likely harm caused by the broadcast, and the resulting determination with regards to the accuracy standard. I address each in turn.

Broadcast harm

[65]  I consider the potential harm caused by the broadcast goes further than that outlined by the majority, causing potential harm to both the trans community and society as a whole given its inconsistencies with societal values.

[66]  To elaborate on some of the existing harm the trans community faces, a recent submission to the Justice Committee regarding the Conversion Practices Prohibition Legislation Bill 2021 noted:⁹²

• Rainbow young people are five times more likely to attempt suicide than their peers.⁹³ These statistics are worse for transgender students, where a study reported that one-in-four transgender and diverse gender students had attempted suicide in the preceding year.⁹⁴
• A major international literature review published in 2011 concluded that research strongly indicates elevated risk of suicidal behaviour in LGBT people internationally.⁹⁵ That same paper also found the likelihood of gay-related victimisation in youth with cross-gender appearance, traits, or behaviours was especially high.⁹⁶ Another systematic review of sexual minority mental health found higher rates of depression, anxiety, suicidality and substance use problems across a wide range of studies.⁹⁷

[67]  The harm of misgendering should not be minimised. Misgendering someone:

• leads to a feeling of exclusion⁹⁸
• disrespects a person’s mana motuhake (self-determination)⁹⁹
• perpetuates cis-heteronormativity by placing those outside of the binary into a ‘non’ or ‘other’ category (or, placing them in an incorrect category)¹⁰⁰
• is an affront to a person’s inherent dignity, and arguably their wairua.¹⁰¹ As the British Columbia Human Rights Tribunal has recently stated:¹⁰²
  Like a name, pronouns are a fundamental part of a person’s identity. They are a primary way that people identify each other. Using correct pronouns communicates that we see and respect a person for who they are. Especially for trans, non-binary, or other non-cisgender people, using the correct pronouns validates and affirms they are a person equally deserving of respect and dignity. As [one individual] explained in this hearing, their pronouns are “fundamental to me feeling like I exist”. When people use the right pronouns, they can feel safe and enjoy the moment. When people do not use the right pronouns, that safety is undermined and they are forced to repeat to the world: I exist.
• That same Tribunal noted that with regard to any issues caused by ‘the concept of gender-neutral pronouns’ being a new one, any learning is done at the expense of trans and non-binary people who continue to endure the harm of being misgendered and having their very existence questioned.

[68]  Further, there are studies suggesting exposure to negative messages in media contributes to negative health outcomes in these populations.¹⁰³ The broadcast was likely harmful in this regard as it essentially questioned the very existence and dignity of transgender and gender diverse people.¹⁰⁴

[69]  I also consider the harm is exacerbated from a cultural perspective. As the majority note, some Pacific cultures accept gender diversity in forms Western societies traditionally have not. I consider this perspective requires further emphasis:

• Traditionally, many Pacific cultures were supportive and reverent of our diverse communities: ‘our culture was inclusive’.¹⁰⁵ Individuals within these communities were esteemed for their closeness with the atua (ancestors / gods) and the spirit world.¹⁰⁶
• That continues to ring true today. By way of one example, Samoa has four cultural genders – female, male, fa’afafine, fa’atama. Samoa is considered one of the countries with a highly culturally recognised and pronounced trans and gender diverse population.¹⁰⁷ Further, ‘Fa’afafine are a visible and significant presence in everyday Samoan life.’¹⁰⁸
• Westernised labels such as LGBTQI+ do not appropriately reflect the cultural foundations for these individuals.[109] Emphasis in these cultures is usually around contributions to the community rather than sexual preference or other diversity.¹¹⁰

[70]  The effect of colonisation is seen in the marginalisation of these communities. This harm cannot be understated, particularly in light of Aotearoa’s bicultural roots, and multicultural communities. I acknowledge we may not currently be in a position in Aotearoa New Zealand where Dr Stock’s views are perceived as extremist by community values. However, they must be viewed in this context: her views are only seen to be accepted by some because of the effects of colonisation. The principle of redress, and our obligations to Te Tiriti, require us to consider the complaint in this context.

[71]  Further, I consider Dr Stock’s perspective that sex cannot be changed appears inconsistent with:

• Medical understanding – There has long been recognition of the fact sex is not binary or discretely categorised to begin with. This is evident as some people ‘straddle the boundary’ between ‘male’ and ‘female’.¹¹¹ Further, sex reassignment surgeries (a form of ‘gender affirming healthcare’¹¹² being the preferred terminology in this area¹¹³) provide one avenue to amend sex characteristics.¹¹⁴
• Social understanding – NZ law allows eligible adults to amend the sex on their birth certificate.¹¹⁵
• Cultural understanding – as noted above, different cultures celebrate sexual diversity.

[72]  This harm could have been mitigated by defining what was meant by ‘sex’ to begin with, given the term carries different meanings depending on its context and is affected by many biological (and social) variables.¹¹⁶ However, Dr Stock’s treatment of the concept as black and white had the potential to mislead listeners and cause harm, as outlined above.

Accuracy analysis

[73]  I differ with the majority’s views on the materiality of two alleged inaccuracies: that (i) trans women are men / sex cannot be changed; and (ii) transgender women were more likely to assault women in jail.

[74]  With regards to the first, although the specific statement might have been Dr Stock’s opinion, I consider a reasonable listener would have perceived the underlying point as a representation of fact. As the majority recognise, it was vehemently held, and I note statements to that effect were repeated, and asserted as a fact (‘I’m just going to have to spell it out for people, I don’t think even if you have medical surgical measures… I don’t think you can change your sex… We don’t have that sort of control over nature and sex…’) The use of ‘I think’ does not detract from her assertion, particularly as the likely draw in interviewing Dr Stock was her outspoken position on this issue. I consider this was a statement of fact, to which the accuracy standard applies, and I consider it was materially inaccurate in light of society’s understanding of sex outlined at paragraphs [68]–[69], above.

[75]  With regard to the second inaccuracy, I consider the inaccuracy was material in the context as it was used to:

• tarnish the reputation of trans communities
• bolster Dr Stock’s gender-critical views.

[76]  I consider the harm caused by the broadcast outweighed its value in this regard.

[77]  As the majority have not upheld the complaints under this section, I do not address whether RNZ made reasonable efforts in ensuring the programme was accurate and did not mislead.

Conclusion

[78]  As is evident from our analysis, the right to freedom of expression has strongly influenced our decision with regard to these complaints. We consider this item had significant value, by allowing discourse and the expression of views about an important issue in our society.

[79]  We acknowledge the complaints raised serious issues of potential harm to vulnerable groups. However, we are satisfied the right to freedom of expression – including the broadcaster’s and Dr Stock’s right to impart, and the audience’s right to receive, that information – together with Hill’s mitigation of potential harm mean the value of the broadcast outweighed its potential harm. We therefore consider regulatory intervention is not justified in this instance.

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

Signed for and on behalf of the Authority

Susie Staley
Chair
27 February 2023    

Appendix

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

1  Pip Adam’s formal complaint to RNZ – 15 May 2022

2  Johnny Crawford’s formal complaint to RNZ – 16 May 2022

3  RNZ’s decision on the complaints – 15 June 2022

4  Adam’s referral to the Authority – 18 June 2022

5  Crawford’s referral to the Authority – 19 June 2022

6  RNZ’s response to the referrals – 7 September 2022

7  Crawford’s final comments – 20 September 2022

8  Adam’s final comments – 27 October 2022

9  Adam and Crawford’s confirmation of no Media Council complaint – 1 December 2022

10  RNZ confirming no further comments – 5 December 2022

¹ Likely referring to Helen Pidd “Paedophile jailed after trying to groom children on social media” The Guardian (online ed, 10 May 2022)
² Nazia Parveen “Karen White: how 'manipulative' transgender inmate attacked again” The Guardian (online ed, 11 October 2018)
³ Cant and Television New Zealand Ltd, Decision No. 2020-071
⁴ The term ‘gender critical’ refers to the belief sex is a fact of biology that cannot be changed, and doubting the idea of gender identity Cambridge Dictionary “gender-critical” <dictionary.cambridge.org> (our inclusion of footnote for clarification)
⁵ Referring to the burning of a Tauranga Rainbow Youth centre, ‘an increased focus on the way that religious schools have treated gender non-conforming students’, and “Transgender hate crimes up 87% in Scotland” BBC (online ed, 14 June 2022)
⁶ Reality Check team “How many transgender inmates are there?” BBC News (online ed, 13 August 2018)
⁷ Citing Vic Parsons “Ministry of Justice dispels bigoted myths around trans prisoners and sexual assault with cold, hard and indisputable facts” (21 May 2020) Pink News <pinknews.co.uk>; and Jaimie Veale and others Counting Ourselves: The health and wellbeing of trans and non-binary people in Aotearoa New Zealand (2019, Transgender Health Research Lab, University of Waikato, Hamilton) at page v
⁸ Citing Hamish Morrison “GRA reform: EHRC can't give self-ID 'abuse' examples when quizzed over bill” The National (online ed, 18 May 2022)
⁹ Saturday Morning “Kathleen Stock: the professor who lost her career amid toxic gender debate” RNZ (online ed, 14 May 2022)
¹⁰ Prowse and Radio New Zealand Ltd, Decision No. 2022-098 at [10]
¹¹ Standard 6, Radio Code of Broadcasting Practice
¹² Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
¹³ Standard 8, Radio Code of Broadcasting Practice
¹⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁵ As above
¹⁶ Standard 9, Radio Code of Broadcasting Practice
¹⁷ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
¹⁸ Standard 4, Radio Code of Broadcasting Practice
¹⁹ Commentary: Violence, Broadcasting Standards in New Zealand Codebook, page 14
²⁰ Guideline 4a
²¹ Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
²² See also Charlotte Paul “Identity crisis: Have we gone too far in letting kids change their gender?” NZ Herald (online ed, 12 September 2022); Ruth Hill “Puberty blocker use jumps as expert backs results” RNZ (online ed, 29 September 2022); Deena Coster “Taranaki sport facilities ready for gender inclusion, as club policy plays catch up across NZ” Stuff (5 September 2022); “'Horrifying' some think trans women will ruin women's sport – athlete” 1 News (online ed, 23 June 2022; Sarah Donovan “Parents of gender-questioning children in NZ being let down” Newsroom (online ed, 22 August 2022); Zoë George “Trans participation in sport: What are their experiences?” Stuff (24 July 2022); “Fair Game: Should trans athletes be allowed to compete in elite sport?” 1 News (online ed, 19 June 2022); The National Council of Women of New Zealand | Te Kaunihera Wahine o Aotearoa 2019 Gender Attitudes Survey (Research New Zealand, 2021) at 64–66
²³ See Te Whata and Mediaworks Radio Ltd, Decision No. 2020-141 at [12]
²⁴ Amy Ross and others Echo Chambers, Filter Bubbles, and Polarisation: a Literature Review (Reuters Institute, 2022) at 10
²⁵ See Wall v Fairfax New Zealand Ltd [2018] NZHC 104, [2018] 2 NZLR 471 at [89] where the Court was ‘mindful also that by delegitimising a group, insulting publications can have the potential to limit that group’s participation in the “market”.’
²⁶ Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [13.7.35]–[13.7.36]
²⁷ As above
²⁸ Sta. Lucia and Mediaworks TV Ltd, Decision No. 2019-048 at [18] citing 13 Complainants and Television New Zealand, Decision No. 2017-101 at [44]
²⁹ Moncrieff-Spittle v Regional Facilities Auckland Limited [2022] NZSC 138 at [115] citing Terminiello v Chicago 337 US 1 (1949) at 4; and see R v Morse [2010] 2 NZLR 625, [2009] NZCA 623 per Glazebrook J, dissenting, at [89] and [120]; appeal allowed in Morse v Police [2012] 2 NZLR 1, [2011] NZSC 45
³⁰ See generally Jaimie Veale and others Counting Ourselves: The health and wellbeing of trans and non-binary people in Aotearoa New Zealand (2019, Transgender Health Research Lab, University of Waikato, Hamilton) and particularly at 51 (one in five participants deliberately misgendered in dating / romantic experiences), at 72 (9% of participants deliberately misgendered at an airport), at 79 (42% of participants were misgendered by police that knew their correct name, pronoun, or gender)
[31] New Zealand Human Rights Commission | Te Kāhui Tika Tangata Prism: Human rights issues relating to Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) in Aotearoa New Zealand - A report with recommendations (2020, Wellington) at 29
³² As above
³³ As above, at 32
³⁴ As above, at 29 citing Victor Madrigal-Borloz Report to the General Assembly by the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity UN Doc A/73/152 (12 July 2018) at [19]
³⁵ New Zealand Human Rights Commission | Te Kāhui Tika Tangata Prism: Human rights issues relating to Sexual Orientation, Gender Identity and Expression, and Sex Characteristics (SOGIESC) in Aotearoa New Zealand - A report with recommendations (2020, Wellington) at 23; Julia de Bres “Gender-diverse language something to celebrate” (9 July 2020) Massey University | Te Kunenga Ki Pūrehuroa <massey.ac.nz>; and Karl Pulotu-Endemann “Talking about Pacific and religious values” (7 August 2022) E-Tangata <e-tangata.co.nz>
³⁶ Elizabeth Kerekere Takatāpui: Part of the Whānau (3rd ed, Tīwhanawhana Trust and Mental Health Foundation, Auckland, 2021) at 6; For some examples of gender non-conformity in te ao Māori, see Elizabeth Kerekere Part of the Whānau: The Emergence of Takatāpui Identity He Whāriki Takatāpui (PhD thesis, Victoria University of Wellington | Te Herenga Waka, 2017) at 63
³⁷ See also Avery and NZME Radio Ltd, Decision No. 2018-076 at [14] and Waxman and Television New Zealand Ltd, Decision No. 2020-042 at [9]
[38] See “Kim Hill” RNZ (online ed); and Cape and Radio New Zealand Ltd, Decision No. 2018-013 at [17]; Barron and Radio New Zealand Ltd, Decision No. 2020-171 at [15]; and McLaughlin and Radio New Zealand Ltd, Decision No. 2019-032 at [15]
³⁹ “Saturday Morning” RNZ (online ed)
⁴⁰ Standard 6, Radio Code of Broadcasting Practice
⁴¹ See Human Rights Commission’s | Te Kāhui Tika Tangata “The A-Z Pre-Employment Guide: T” <hrc.co.nz>; and, although using outdated terminology at times, Cheryl Gwyn “Solicitor-General’s Opinion on the Human Rights (Gender Identity) Bill” (2 August 2006) Crown Law Office | Te Tari Ture o te Karauna at [30]
⁴² New Zealand Bill of Rights Act 1990, s 6
⁴³ See Katy Steinmetz “The Transgender Tipping Point” Time (online ed, 29 May 2014)
⁴⁴ See footnote 22
⁴⁵ Guideline 6a
⁴⁶ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁴⁷ Guideline 6c
⁴⁸ Guideline 6b
⁴⁹ See Buxton and Te Aratuku Whakaata Irirangi Māori, Decision No. 2022-050 at [20] (per the majority) citing Waxman and Television New Zealand Ltd, Decision No. 2020-042 and Cant and Television New Zealand Ltd, Decision No. 2020-071
⁵⁰ Amira Hasenbush, Andrew Flores and Jody Herman “Gender Identity Nondiscrimination Laws in Public Accommodations: a Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms” (2019) 16 Sexuality Research and Social Policy 70; Katy Steinmetz “Why LGBT Advocates Say Bathroom 'Predators' Argument Is a Red Herring” Time (online ed, 2 May 2016) and Michele Ybarra, Kimberly Goodman and Elizabeth Saewyc “Youth Characteristics Associated With Sexual Violence Perpetration Among Transgender Boys and Girls, Cisgender Boys and Girls, and Nonbinary Youth” (2022) 5 JAMA Network Open; and Beatriz Bagagli, Tyara Chaves and Mónica Fontana “Trans Women and Public Restrooms: The Legal Discourse and Its Violence” (2021) 6 Frontiers in Sociology regarding the harms of such discourse (although there is also evidence to the contrary (Rosa Freedman, Kathleen Stock and Alice Sullivan “Evidence and Data on Trans Women’s Offending Rates” (November 2020)), this does not seem to focus on the particular situation of increased sexual assaults in bathrooms)
⁵¹ Katy Steinmetz “Why LGBT Advocates Say Bathroom 'Predators' Argument Is a Red Herring” Time (online ed, 2 May 2016) and Michele Ybarra, Kimberly Goodman and Elizabeth Saewyc “Youth Characteristics Associated With Sexual Violence Perpetration Among Transgender Boys and Girls, Cisgender Boys and Girls, and Nonbinary Youth” (2022) 5 JAMA Network Open
⁵² Guideline 6d
⁵³ “Saturday Morning” RNZ (online ed)
⁵⁴ McLaughlin and Radio New Zealand Ltd, Decision No. 2019-032 at [16] Wilkinson and Radio New Zealand Ltd, Decision No. 2017-012 at [17]
⁵⁵ Grant Robertson and Chris Hipkins Enduring Letter of Expectations to Statutory Crown Entities (2019)
⁵⁶ See Elizabeth Kerekere Takatāpui: Part of the Whānau (3rd ed, Tīwhanawhana Trust and Mental Health Foundation, Auckland, 2021) at 13; and Te Puni Kōkiri | Ministry of Māori Development He Tirohanga ō Kawa ki te Tiriti o Waitangi | A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (2001) at 8
⁵⁷ Te Puni Kōkiri He Tirohanga ō Kawa ki te Tiriti o Waitangi | A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (2001) at 60; Waitangi Tribunal Haumaru: The COVID-19 Priority Report, Pre-publication version (Wai 2575, 2021) at 44 and 46
⁵⁸ Bell v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363, leave to appeal to the Supreme Court declined in April 2022, see The Supreme Court “Permission to Appeal – April and May 2022” <supremecourt.uk>; and see a similar acknowledgment by the Media Council: Hickson and The Nelson Mail, Case No. 3327
⁵⁹ Guideline 6c
⁶⁰ Guideline 8a
⁶¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁶² As above
⁶³ See the sources referred to at footnote 22, above
⁶⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁶⁵ As above
⁶⁶ Guideline 8c
⁶⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁶⁸ As above
⁶⁹ See the sources referred to at footnote 22, above
⁷⁰ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁷¹ As above
⁷² Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
⁷³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁷⁴ Guideline 9a
⁷⁵ Guidance: Accuracy – Distinguishing fact and analysis, comment or opinion, Broadcasting Standards in New Zealand Codebook, page 64
⁷⁶ As above
⁷⁷ As above
⁷⁸ Burne-Field and NZME Radio Ltd, Decision No. 2020-040 at [9]
⁷⁹ ‘…[Dr Stock] argues that those who transition from the sexual category they were born into are living an immersive fiction’
⁸⁰ An acronym for Trans Exclusionary Radical Feminist, which is used to describe people who hold a certain view of feminism which excludes trans women: Johnson & MacKinnon and Radio New Zealand Ltd, Decision No. 2020-176
⁸¹ See “Fair Game: Should trans athletes be allowed to compete in elite sport?” Sunday (online ed, 19 June 2022); Sean Ingle “Trans women retain 12% edge in tests two years after transitioning, study finds” The Guardian (online ed, 7 December 2020)
⁸² International Olympic Committee “IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations” (16 November 2021) at principles 5 and 6
⁸³ Guidance: Accuracy – Distinguishing fact and analysis, comment or opinion, Broadcasting Standards in New Zealand Codebook, page 64
⁸⁴ See Crawford’s sources at footnotes 6 and 7
⁸⁵ Julian Vigo “UK women are self-identifying as men to challenge proposed changes to the GRA as part of #ManFriday” (9 April 2018) Feminist Current <feministcurrent.com>; Sex matters “Sex matters in changing rooms” (20 April 2022) <sex-matters.org>
⁸⁶ Citing Hamish Morrison “GRA reform: EHRC can't give self-ID 'abuse' examples when quizzed over bill” The National (online ed, 18 May 2022)
⁸⁷ See Jesse Singal “When Children Say They’re Trans” The Atlantic (online ed, August 2018)and Lisa Littman “Individuals Treated for Gender Dysphoria with Medical and/or Surgical Transition Who Subsequently Detransitioned: A Survey of 100 Detransitioners” (2021) 50 Archives of Sexual Behaviour 3353
⁸⁸ See Baz Macdonald “98% of trans teens don’t regret gender-affirming treatments: study” Renews (25 October 2022); GenderGP “Detransition Facts and Statistics 2022: Exploding the Myths Around Detransitioning” (21 June 2021) <gendergp.com> and the studies cited
⁸⁹ Wayback Machine “Transgender New Zealanders: Children and young people” Ministry of Health | Manatū Hauora (2 September 2022) (see “Puberty blockers”) <www.web.archive.org> regarding www.health.govt.nz. The amendment to the statement is said to be for clarity rather than any backtrack on the position: Rachel Thomas “Puberty blockers still considered safe and reversible, health ministry says” Stuff (25 September 2022)
⁹⁰ See Charlotte Paul article at footnote 22, above, Ruth Hill “Puberty blocker use jumps as expert backs results” RNZ (online ed, 29 September 2022);William Malone and others “Puberty blockers for gender dysphoria: the science is far from settled” (2021) 5 The Lancet Child & Adolescent Health e33–e34
⁹¹ 98.2% of defendants prosecuted for rape in the UK in 2019-2020 were male: Crown Prosecution Service “Key facts about how the CPS prosecutes allegations of rape” (19 October 2020) <cps.gov.uk> ; and Lara Stemple and Ilan Meyer “Sexual Victimization by Women Is More Common Than Previously Known” (10 October 2017) Scientific American <scientificamerican.com> finding 96% of reported abuse of women (as noted in previous National Crime Victimisation Survey data) was by men
⁹² InsideOUT Kōaro “Submissions to the Justice Committee on the Conversion Practices Prohibition Legislation Bill 2021 (56—1)” at [4.3]
⁹³ Mathijs Lucassen and others Youth'12 The Health and Wellbeing of Secondary School Students in New Zealand: Results for Young People Attracted to the Same Sex or Both Sexes (2014, The University of Auckland, Auckland) at 22–23 which found 18.3% of same/both-sex attracted secondary school students (being the terminology used in that study) had attempted suicide in the past year, compared with 3.8% of their opposite-sex attracted peers
⁹⁴ Youth19 A Youth19 Brief: Transgender and diverse gender students (2021, Youth19, Auckland).
⁹⁵ Ann Haas and others "Suicide and suicide risk in lesbian, gay, bisexual, and transgender populations: Review and recommendations" (2011) 58 Journal of Homosexuality 10
⁹⁶ As above
⁹⁷ Martin Plöderl and Pierre Tremblay "Mental health of sexual minorities. A systematic review" (2015) 27 International Review of Psychiatry 367
⁹⁸ See Children’s Commissioner | Manaakitia ā tatou tamariki and Oranga Tamariki | Ministry for Children What makes a good life? Children and young people’s views on wellbeing (2019, Wellington) at 34 where young rainbow people reported being excluded through incorrect pronoun usage
⁹⁹ see InsideOUT Kōaro Making Schools Safer (2021) at 29
¹⁰⁰ Mathijs Lucassen and others Youth'12 The Health and Wellbeing of Secondary School Students in New Zealand: Results for Young People Attracted to the Same Sex or Both Sexes (2014, The University of Auckland, Auckland) at 7 for a similar conclusion as to terminology of sexuality
¹⁰¹ See Elizabeth Kerekere Growing Up Takatāpui: Whānau Journeys (2017, Tīwhanawhana Trust and RainbowYOUTH, Auckland) at 29
¹⁰² Nelson v Goodberry Restaurant Group Ltd [2021] BCHRT 137 at [82]
¹⁰³ See, for example, Jaclyn Hughes and others “Negative Transgender-Related Media Messages Are Associated with Adverse Mental Health Outcomes in a Multistate Study of Transgender Adults” (2021) 8 LGBT Health 32
¹⁰⁴ See Oger v Whatcott [2019] BCHRT 58 at [61]
¹⁰⁵ Emmaline Pickering-Martin “It’s not Pacific ‘culture’ to be homophobic” (7 August 2022) E‑Tangata <e‑tangata.co.nz>
¹⁰⁶ As above
¹⁰⁷ Samoa Fa’afafine Association Inc, My Girls Club and Asia Pacific Transgender Network “Joint Stakeholder Submission: Universal Periodic Review of Samoa, 39th Working Group Session” (October 2021)
¹⁰⁸ Seuta’afili Patrick S. Thomsen “Book Review: Samoan Queer Lives” (2019) Journal of New Zealand Studies 108
¹⁰⁹ Khalia Strong “Western gender labels don't work for Pasifika” (9 August 2022) Pacific Media Network <pacificmedianetwork.com>
¹¹⁰ Alan Weedon “Understanding the Pacific's alternative genders” RNZ (online ed, 31 August 2019)
¹¹¹ Claire Ainsworth “Sex redefined” (2015) 518 Nature 288; Kim Elesser “The Myth Of Biological Sex” Forbes (online ed, 15 June 2020);
¹¹² Ministry of Health | Manatū Hauora “Health care for transgender New Zealanders” (28 July 2022) <health.govt.nz>
¹¹³ Tehmina Ahmad, Anthea Lafreniere and David Grynspan “Incorporating Transition-Affirming Language into Anatomical Pathology Reporting for Gender Affirmation Surgery” (2019) 4 Transgender Health 335 at Table 2
¹¹⁴ Lenny Bernstein “Here’s how sex reassignment surgery works” The Washington Post (online ed, 9 February 2015)
¹¹⁵ See Births, Deaths, Marriages, and Relationships Registration Act 1995, s 28. Although Dr Stock does note the distinction between legal sex recognition and changing biological sex, it is misleading to note the legal terminology is a ‘bit confusing’ as the term sex will vary by its context.
¹¹⁶ Katrina Karkazis “The misuses of “biological sex”” (2019) 394 The Art of Medicine 1898; and see Mari Mikkola “Feminist Perspectives on Sex and Gender” (2022) The Stanford Encyclopedia of Philosophy at [3.2]