It’s not enough to highlight how appalling, harmful and insulting legacy media coverage of sex and gender has been. We have to unlock the reasons for continuing media capture, in the hope of finding the button to press that will help editors to change their minds, short of legal action.

In the UK we have a lever, or a point to measure against - the Supreme Court ruling on biological sex. Media outlets don’t have to ‘obey’ it by reverting to accurate sex-based pronouns, but the UK is unique in providing an opportunity to do so. What has held them back?

It’s a process full of binaries.

News outlets held on to self-identification of sex because:

a. they want to use self-ID or

b. they think they have to use self-ID.

Why might they want to? There are two options again:

a. they are activists or

b. they are afraid

Why might they think they have to? Two options again

a. they have not sought legal advice

b. they have sought legal advice which was poor to misleading

Only one of these offers a defence to news outlets - that they’ve been given appalling legal advice. If they are afraid, if they are activists, if they have not even bothered to seek legal advice, they deserve all the public contempt that comes their way.

But we are beginning to understand that poor legal advice may be at the heart of a grave misunderstanding. News outlets may actually believe it is illegal to use accurate sex pronouns. We have sought many times to disabuse them of misconceptions around the lawfulness of accurate language. They’ve been told, not just by us, by many individuals and organisations, that it’s a choice.

But they may be further behind in understanding than any of us can imagine.

They believe the Supreme Court judgement of April 16 is a narrow ruling that applies only to public boards in Scotland

They believe the Gender Recognition Act 2004 has a much wider application than does SC 2025

They believe the GRA 2004 section 22 on privacy ‘overrides’ the Supreme Court ruling and prevents the use of accurate sex pronouns

This is how far behind some of them are.

Here’s the thought process: ‘it’s illegal to use accurate sex pronouns for a person with a GRC: we don’t know if any particular trans person has a GRC, and it’s illegal to ask them if they do, so using accurate sex pronouns for any trans person risks breaching the law, so we won’t’. You might want to bang your head on the desk at this point.

So we’ve gone back to basics and built a bullet-point, easy to read explanation of the legal position.

The Supreme Court Judgement FWS v Scottish Ministers is not a narrow ruling. It applies to the Equality Act 2010 for the whole of the UK, not just to Scottish public boards, and reaches back to 2010. The ruling affects every area in which discrimination may be considered to arise.

It is lawful to report a person's sex if they have a GRC

It is lawful to report a person's sex if they do not have a GRC

It is lawful to ask whether someone has a Gender Recognition Certificate, but there is no need to do so and it may lead a journalist into breaching S22 GRA 2004

It is lawful to ask if somebody has a trans status ('is trans')

A GRC does not change someone’s sex 'for all purposes'

It is lawful to decline to use the language of any court proceeding or police statement which uses 'preferred pronouns' (see further explanation below)

It is lawful to ask the police if a person they have in custody is a biological female or male

It is not illegal to use accurate pronouns for a person who claims a trans status, even if they have a GRC

It does not breach the Ofcom Broadcasting Code to do any of the above

In almost every case, knowledge of a person's sex is acquired by observation: knowledge of a person's trans status is acquired by declaration.

It is not necessary to report ‘trans status’ when reporting biological sex

Most declarations of transgender status are simultaneously declarations of sex. A person who has put his or her transgender status in the public domain has also put his or her sex in the public domain.

Most people with a trans status who feature in news content do so because of their trans status. Both their trans status and their sex have already been revealed to the outlet.

GRA2004 S22 (see above) It is illegal to reveal the fact that a person has a GRC if the knowledge has been acquired in an official capacity, except under certain conditions. An individual’s possession of a GRC has never featured in, or affected in any way, news coverage of transgender and women’s rights stories. There is no need to ask.

The EA 2010 makes it illegal to discriminate against a person in the provision of services or employment because of their gender reassignment status. It is not a back door to self-ID: this is why considerable (unsuccessful) efforts were made (2015-19 UK-wide and 2021-2023 in Scotland) to introduce legislation that would have put self-identification on the statute.

FWS vs Scottish Ministers April 16 concerned ‘certificated sex’ vs ‘biological sex’. It does not affect any 'trans' person who does not have a GRC.

It is illegal to discriminate on the grounds of belief. News outlets may be compelling staff, who do not share the belief in the self-identification of sex, to express that belief. The understanding that sex is real, biological, binary and immutable, and that it sometimes matters, is a protected belief.

Further explanation of court coverage

Direct quotations of any court officials, lawyers, witnesses or defendants must be faithful to the language used (if a lawyer says 'she' for 'he', so must the journalist if using direct quotes).

Transgender status and therefore sex is usually placed in the public domain during proceedings. Provided there are no specific reporting restrictions (for example around a question of identification) there is no contempt in either stating factually the sex of any party or in using factual pronouns. If that prospect makes you nervous, there is no contempt in using neutral (unsexed) language either.

Citations

Ben Cooper KC on For Women Scotland

Published on the website of Old Square Chambers (an established and broad chambers which includes the prominent transgender barrister Robin Moira White, and the barrister currently acting for Stonewall on the Allison Bailey case, Ijeoma Omambala).

Supreme Court: For Women Scotland vs Scottish Ministers pp78

Gender Recognition Act 2004 S22

For Women Scotland vs Scottish Ministers S13-15

Forstater v CGD pp275

This round up clears up any objections on legal grounds. It means news outlets must defend their editorial policies on the grounds of choice and what’s behind it. Activism or fear?

The Supreme Court offered them the opportunity of abandoning self-identification without having to admit they were too cowardly - or too full of activist employees and parents of trans children - to grasp this nettle. A fuller understanding of the legal position may still lead them to the sunlit uplands of accuracy. We’ve sent it to all, including the BBC, as it revisits its guidance on sex and gender.