To she, or not to she.. in court
Guide to using preferred pronouns during and after court cases
One of the most controversial, but widely adopted uses of ‘preferred pronouns’ is in court reporting, with routine descriptions of male criminals as female. The most recent and egregious case is that of the murderer Scarlett Blake, who was described across news outlets with female pronouns and as a woman, sometimes without even a ‘trans’ qualifier. But there have been many other cases - sometimes the offender or accused is described as a transgender woman, but it is rarely made clear in copy that the offender or accused is male. Some examples:
Scarlet Blake - Unherd on the BBC
Most news outlets mandate ‘preferred pronouns’ in their news style guides, and editors seem to think they are obliged to use ‘preferred pronouns’ in court reporting. They believe (or seem to believe) that accuracy is derived not from describing reality but from ‘faithfulness’ to the courts’ use of language.
We have put together this guide to help journalists who wish to report court proceedings accurately - or explain to their editors how they can do so perfectly legally without using preferred pronouns - in order to give the reader or viewer the most accurate picture possible.
Court Pronouns
Court reporting comes with additional restrictions. You are legally obliged by the 1996 Defamation Act to report the proceedings of the court accurately
This presents a challenge in the case of trans-identified defendants.
It may be a breach of accuracy to refer to a male person as a woman, or to imply that a male person is a woman by using she/her pronouns, but this has not been tested in practice.
The safest course in body copy is to refrain from using all pronouns, and refer to the defendant by their name or as the defendant or accused, whilst making their trans status clear high up the story. This may be clumsy, but is legally safe.
For example:
Jane Smith, 51, who was described as a transwoman, appeared in court charged with two counts of indecent exposure. The court listing stated Smith was also known as David Brown.
The defendant, who was unemployed, had been in the public library at the time of the offence. The court heard that a librarian noticed Smith walk in wearing a skirt.
The bench (magistrates or judge) are bound by the Equal Treatment Bench Book, which states transgender people should be addressed by their chosen name and pronouns. These guidelines do not apply to anyone else in the courtroom. In practice, lawyers are likely to follow the lead of the judge, but journalists and witnesses are not required to do so.
In fact, the Equal Treatment Bench Book specifically recognises it may be against the interests of justice to require a witness to modify their language by using chosen pronouns, especially if they are describing a traumatic experience such as sexual violence (Page 361, paragraph 26). This means the defendant may be referred to as both he/him and she/her during a case.
To comply with the law, all direct quotes must be reported accurately. If a journalist quotes a judge or lawyer who refers to a male person using she/her pronouns, they must be accurately reported. If the journalist quotes a witness or a transcript of a witness statement that calls the defendant he/him, that also must be reported accurately.
The confusion can be reduced by stating briefly what is happening each time:
Mr Pickles, prosecuting, read from a witness statement which referred to the defendant as a man: “The witness added: ‘He was wearing a skirt. He deliberately lifted it up to show his genitals’.”
The judge, who referred to the defendant using she/her pronouns throughout, said: “I accept she is likely to have a very difficult time in a male prison.”
Alternatively, the confusion can be reduced by using indirect quotes, omitting all pronouns, and repeatedly referring to the defendant using their name, or as the defendant. This may be awkward but is legally safe, for example:
Mr Pickles, prosecuting, said the witness saw Smith wearing a skirt, which the defendant lifted up, the witness then saw Smith’s genitals.
The judge said the defendant was likely to have a difficult time in a male prison.
The effort to refrain from female pronouns is seen in this BBC example: the only use of female pronouns is in indirect and direct quotes. This piece originally used female pronouns throughout but has been updated.
Accuracy applies not just to quotes, but also to the proceedings of the court. This is not limited to what is said. It is commonplace to describe the defendant’s clothes or demeanour and journalists are free to do so.
Very few transgender people have Gender Recognition Certificates and it is highly unlikely a defendant will have one. However, the Gender Recognition Act allows for the holder of a GRC to be referred to by their former name if the disclosure is for the purpose of preventing or investigating crime. Note that it has now been clarified that a person with a GRC is considered to be their biological sex, not their certificated sex, under the Equality Act 2010.
This would obviously include a trial, but would also include a sentencing, as it is well established in law that courts are held in public partly for the purposes of deterring crime, and for encouraging witnesses to come forward regarding further offences.
It is not against the law to report a person's transgender status, particularly when it has been mentioned in court. Nor is it against the law to used sexed pronouns, so long as you don't change the quoted words of court officials. However self-identification has been adopted for so long that a even transitional compromise of pronoun avoidance would be better than inaccurate pronouns, even if they're used by court officials,.
After conviction and sentence there is no need for any restriction.