Ofcom is in a strange position.  It conducted research in 2021 on which it's based its position on self-identification of sex ever since. The research was flawed in the first place, for a number of reasons, but even had it not been so badly biased in favour of affirmation, it would have been overtaken by events and the rapidly changing debate since then.

Despite this, it has previously rather stubbornly declined to revisit its policies - but after the Supreme Court judgement, it was widely considered, or assumed, that an update was required.  Not so, said Ofcom.  It will not revisit its approach to self-identification - which reflects neither reality, nor the law, and never has - until 2026. 

We don't publish all our contacts with regulators and editors for obvious reasons but here's what we sent directly after the judgement was announced. 

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 Following the Supreme Court judgement that sex in the Equality Act has always meant biological sex, we believe Ofcom now needs to make serious and appropriate adjustments to its perspective on complaints about accuracy and impartiality on the issue of sex and gender.

We know that Ofcom has no internal network to make this argument, and we know that Ofcom has paid for training and recruitment services from the transgender self-ID advocate organisation Audeliss. We also know that Ofcom bases its approach to the issue on outdated research that focussed heavily on transgender advocate cohorts.

There has been no matching training and recruitment support from organisations that base their campaigning around established law. Nor has there been any updated research with a wider cohort and input from such organisations. This has not been a balanced approach.

You will know that the reaction from Suki Sandhu of Audeliss to the Supreme Court judgement was to describe it as 'devastating', 'an attack on the trans community', 'a step backwards stoking fear and division', 'legitimisation of transphobia', 'putting trans people in danger', 'setting a terrifying precedent', and 'should be condemned'. This is the organisation which has trained and recruited Ofcom staff. The optic is exceptionally poor.

The Supreme Court found that what has been known to be indisputably true in life is also true in law, and has specifically been so since 2010 - that sex is binary and immutable.

Ofcom now needs to make it clear that no news outlet will be reprimanded for truthful use of language around the issue of sex and gender. Self-identification of sex and the concept of 'misgendering' are campaigning positions that should be clearly and publicly disowned by the regulator whose job it is to parse accuracy and impartiality.

Ofcom also needs to respond internally to the judgement by securing legal advice detached from any transgender advocate organisation: it needs training from groups which base their campaigning and advocacy around sex-based reality: and it needs to open up the internal conversation about sex and gender by offering a staff network based on SEEN - Sex, Equity and Equality - principles.

Ofcom has previously said that the use of she/her pronouns for men does not affect overall accuracy and that clarity around biological sex is not necessary, even when a person has committed violent crimes. These are activist positions which should be revisited. The Supreme Court judgement provides the ideal opportunity.