Freedom of expression outweighed harm caused by gender-critical interview, BSA finds
The Broadcasting Standards Authority has made a landmark acknowledgement of transgender rights but ultimately not upheld complaints that an RNZ interview with a gender-critical philosopher breached broadcasting standards.
The broadcast discussed Dr Kathleen Stock’s perspective on gender identity and her experiences resulting from voicing her views. Dr Stock resigned as Professor of Philosophy at the University of Sussex following a student campaign accusing her of transphobia.
The Authority acknowledged the potential harm of the interview, but ultimately found the importance of freedom of expression outweighed the potential harm caused.
The decision relates to a Kim Hill interview aired on Saturday Morning on RNZ on 14 May 2022, with Dr Stock, whose book Material Girls argues those who transition from the sexual category they were born into are living “an immersive fiction”.
The complainants alleged the broadcast breached the discrimination and denigration, accuracy, balance and violence standards.1 Alleged breaches included the misgendering of trans people, reliance on transphobic stereotypes and calling for the different treatment of trans people.
The BSA found the item was clearly signalled as presenting Dr Stock’s perspective, to which she was entitled, and noted that throughout the interview Hill challenged Dr Stock’s views, leaving the audience with a more balanced impression on the issue.
In a first for a BSA decision, and likely any New Zealand court2, the Authority found transgender people to be a “section of the community” to which the discrimination and denigration standard can be applied.
“This is because the standard protects against discrimination or denigration ‘on account of sex’, and we interpret ‘sex’ as broad enough to encompass discrimination of this nature,” it said.3
Considered as a whole, however, the broadcast was unlikely to encourage discrimination. Listeners would not have expected the presentation of further alternative perspectives in a broadcast of this nature and a majority of the Authority found the points alleged to be inaccurate were either opinion (to which the accuracy standard does not apply) or not materially inaccurate. The violence standard did not apply.
The Authority said its decision was strongly influenced by the right to freedom of expression, which invites dispute and arguably “best serves its high purpose when it stirs people to anger”.
“We consider this item had significant value, by allowing discourse and the expression of views about an important issue affecting our society.
“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.”
A minority of the Authority considered the broadcast had a greater level of potential harm and found two points in the broadcast (including that trans women were men) were materially inaccurate.
ENDS
FURTHER INFORMATION
The decision can be seen on the BSA website here.
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The BSA is an independent Crown entity that oversees the broadcasting standards regime in New Zealand. It determines complaints that broadcasts have breached standards, undertakes research and oversees the development of broadcasting standards in consultation with broadcasters.
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1 This decision was made under the Radio Code of Broadcasting Practice (2020 edition) which applied to programmes broadcast before 1 July 2022 and is available to view on our website: https://bsa.govt.nz/broadcasting-standards/broadcasting-code-book/.
2 ‘Discrimination against transgender people’, Employment New Zealand
3 This is consistent with the Human Rights Commission | Te Kāhui Tika Tangata’s and Crown Law | Te Tari Ture o te Karauna’s interpretation of the relevant section in the Human Rights Act 1993. It is also considered to be consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990.