Last year Ofcom refused to criticise the BBC for lying about the sex of murderer and cat liquidiser Scarlet Blake. Last week, in response to the Supreme Court ruling, it implied that it would breach the European Convention on Human Rights if Ofcom told UK broadcasters they won’t be penalised for accuracy on biological sex.

An extraordinary response. In between the two, there was a change in leadership - a new head of Broadcasting Standards - and the ultimate legal ruling was handed down, that sex is biological.

But everything changes, everything stays the same. Ofcom will not be revisiting its policy.

Let’s recap Scarlet Blake. First on BBC Online, then in a prime BBC TV national bulletin, the murder and cat liquidiser was called a woman without qualification. There was public anger, and Baroness Nicolson and Seen in Journalism were among those who wrote to Ofcom to ask what they were playing at.

Ofcom maintained to Baroness Nicolson that 'overall accuracy' was not affected because referencing biological sex accurately isn’t necessary for material to be duly accurate.

Here’s the excuse it cited at the time for this misogynistic, irrational position. So we asked them more about it.

Ofcom claims this research - then three years old, now nearly four years old, indicates that the general public would find ‘misgendering’ Scarlet Blake to be unacceptable, and potentially offensive or transphobic.

The research included a qualitative strand involving four LGBT focus groups by ‘self-identified gender’, with in depth interviews of ‘five non-binary people’ and ‘five transgender people’.

There were no feminist focus groups or in depth interviews, despite the fact that by 2021 this was an enormously contentious issue. Capture was built in from the start.

Did they consult anyone who wasn’t an identity activist? Absolutely. There was a general online survey, and there were ‘general’ focus groups - 16 of them. But no one with a specific understanding of 'identity’ from a feminist (reality) perspective rather than a trans perspective.

Meanwhile 15 hours were spent on individual interviews devoted to people who identify as transgender. Women who understand sex is real weren’t invited for these in-depth conversations.

What did Ofcom ask its ‘general’ participants?

They had to watch a scenario related to accurately sexing or ‘misgendering’ someone. This hypothetical involved a live feature interview with a trans-identified male or 'trans woman' who is accidentally referred to as 'him'. From this, Ofcom extrapolates - three years later - that most people want a convicted murderer, whose sex was salient to the crime and whose trans status was raised in court, to be described as a woman.

So enamoured are they of these findings that even when there’s genuine public outrage about a lie, outside its carefully curated research environment, Ofcom ignores it and defends the untruth.

It’s misleading of Ofcom to suggest that the public reaction to a live, non-criminal, contributor to a programme feature would bear any relation to a factual news report about the sentencing of a murderer whose sex and 'gender identity' are relevant to his heinous crimes.

(One finding from the research was ignored, however: the general public’s agreement that programme makers have a duty accurately to reflect real life was cherry-picked out. Harm or offence was considered only to the trans-identified person, and not to any victim/s family, or more widely to women and LGB people.)

Fast forward to today, and still this research informs Ofcom’s decision making. The study was fatally unrepresentative from the start, its scenarios were irrelevant and unserious, it’s four years old, and it predates the Supreme Court judgement and a number of notable court cases.

There’s no doubt that even without the Supreme Court ruling, attitudes have changed since 2021 - Ofcom just hasn’t kept up.

We said more research was imperative because the debate has moved on. Plainly it should commission a new study specific to this issue, and include in-depth interviews with feminist and LGB groups who do not share the belief in gender identity which Ofcom apparently holds.

Ofcom defended its research, saying it could not ‘seek specific views on the potentially infinite different ways that content may be broadcast’. It’s happy with a ‘general sense of public attitudes’. It says the research included a diverse mix of participants - it still thinks feminists weren’t needed.

On top of that, Ofcom is too poor, it says. It doesn’t have the money for a review more than every five years - that’s 2026, which it thinks is an appropriate gap. It has, though, found £190,000 to pay to TQ+ recruitment service Audeliss since January 2022. Choices, choices.

Where does it leave us today?

We’ve had a meeting with Ofcom since then, and now the Supreme Court judgement has been published, we wrote again. Will Ofcom now rethink its approach to sex and gender?

No, it won’t, and its reply indicates that Ofcom believes making judgements in favour of accuracy is akin to censorship.

‘While Ofcom provides broad guidance to broadcasters on the approach we take to applying the Code, we are not a censor or pre-broadcast regulator. We do not seek to editorialise or to influence the content of news broadcasts. To do so would be both beyond our statutory remit and in breach of the provisions of the European Convention on Human Rights relating to the right to freedom of expression’

We aren’t asking for, we didn’t ask for, and no one is asking for, censorship or pre-broadcast regulation. The current position - whereby broadcasters can be penalised for accuracy - is more akin to censorship than a landscape in which they won’t be: and it’s much more likely to limit freedom of expression.

Along with millions of others, we just want Ofcom to stop holding over broadcasters’ heads the threat of punishment for being truthful about biological sex.

Ofcom’s response on ‘due’ accuracy is revealing. ‘Due accuracy is flexible,’ it says, and ‘depends on a range of contextual factors, including the subject and the likely expectation of the audience’.

In short, in its deliberations on accuracy, it puts as much weight on what people want to hear, as it does on the truth. And what it thinks we want to hear is that murderous men are women, and women are men, based on interviews with ten transgender people in the spring of 2021.

Ofcom’s budget for 2025/2026 is around £200 million. We think it can and should do better.