Some rules need to change

Some rules need to change

Content note: This article discusses transphobia, and includes examples of it.

I’ve always been big on rules. When I was a kid, I had a lot of trouble grasping the idea that there was a difference between “right and wrong” and “following the rules”. My parents used to quip that I’d probably grow up to be a lawyer.

I don’t think the idea that some rules are just wrong really clicked for me until my early twenties. I’m sure the transition was far more gradual than I recall, but I can remember one moment that certainly feels like a turning point in retrospect.

When I was 21, my partner at the time complained to me about a set of traffic lights that turned red far too quickly, and as a result many people would just drive through after they had turned red. A younger me probably would have said something judgemental about it being wrong to run red lights, but instead I said I thought the lights should be changed because they obviously weren’t working.

Though I came to it fairly late, this idea that rules — including the law — aren’t always right has very much solidified in my mind since then. I’ve also learned a lot about how to work within systems of rules, which any long-time readers will surely have seen in my writing on topics such as the Advertising Standards Authority and on the Official Information Act.

One set of rules that I think currently needs to change is the Births, Deaths, Marriages, and Relationships Registration Act (BDMRR Act). One of the things regulated in this law is the process through which someone can change the sex marker on their birth certificate.

Currently, changing the equivalent marker on other official documentation, such as a driver licence or a passport, is a pretty sensible process. It only requires a statutory declaration. Changing the same marker on a birth certificate, however, is a challenging and inaccessible process that requires medical intervention and the family court.

If you see any claims that the Media Council — in its ruling discussed below — found the article was exonerated in this respect, or that they found the article was not discriminatory, I hope you’ll keep in mind the precise wording of the rule that the “not upheld” ruling refers to.

Thankfully, there is a bill currently before parliament that aims to update this law. It went through the standard consultation process a year ago, receiving over 500 submissions.

468 of those submissions were sent in by the Green Party (they can be read here and here), who conducted a campaign they called Documents with Dignity to collect submissions from people who backed their call for the process for correcting the sex marker on a birth certificate.

You can peruse all submissions received on the bill on the Parliament website, including my submission in support of streamlining the process for correcting birth certificates.

In August 2018, after the consultation period was finished, the Governance and Administration Select Committee published their report on the bill. They proposed adding changes in the bill that would allow the sex marker on a birth certificate to be corrected on the basis of a statutory declaration, as well as including the option of “intersex” and “X (unspecified)” for this marker.

These suggestions seemed to have the full support of the committee, which I think is significant in this context. The National Party has historically held more conservative stances regarding the rights of gender and sexual minorities: 92% of National MPs voted against Homosexual Law Reform in 1986, and 54% of National MPs voted against the Marriage (Definition of Marriage) Amendment Bill at its third reading in 2013. However, the reported noted that the National Party members on the select committee “do not wish to stand in the way of reform of self identification of nominated sex on birth certificates”.

Over recent months, an anti-transgender group opposing the proposed changes in the BDMRR Bill, calling itself “Stand Up For Women”, has been complaining that there wasn’t adequate consultation on the bill and encouraging fellow TERFs to contact members of parliament to express their disagreement.

If you’d like to know more about the proposed changes, and what you might be able to do to help improve things for trans people in New Zealand, you can have a look at the Right to Self ID website (for full disclosure, I helped to proofread the template letter on this website) or this page set up by Gender Minorities Aotearoa to provide an overview of what these changes will mean.


If you look through the list of submitters on the BDMRR Bill, you might notice something odd. A bunch of the submitters’ names are prefixed with “Miss” or “Mrs”.

The reason for this is, sadly, bigotry against transgender people. Particularly against transgender women.

Many of the people who submitted on the bill believe, wrongly of course, that transgender people are all incorrect about their gender. Those who subscribe to this ideology are commonly referred to as TERFs – Trans-Exclusive Radical Feminists. Over the past few years, many of them have come to strongly object to that term, so it’s worth knowing that if you see someone describe themselves as “gender critical”, they’re almost certainly referring to the same trans-exclusionary ideology.

This ideology is what those submitters have alluded to by prefixing their names with “Miss” or “Mrs”. The idea is that, by using this title, they are signifying that they are “real” women. They consider this to contrast (again, wrongly) with transgender women, who they do not believe are women.

You can find other varieties of this tactic online, for example by looking at TERF accounts on Twitter. For example, some will include “XX” in their username, referencing sex chromosomes, in a nod to their ideology. Some others include text or images of their definition of woman (typically they use the wording “Adult human female”) in their bio or avatar, for similar reasons.

These are implicit versions of a much more explicit rhetorical technique often used by TERFs, which is to outright say that a trans person’s gender is not what they say it is. They will often do this by refusing to use appropriate pronouns to refer to someone, for example referring to a trans woman as “he” and “him”. This tactic is known as misgendering.


I wish I could tell you that this sort of gross and disrespectful bigotry was limited to the basements of the internet, but I can’t. Last year, the New Zealand Herald published an article on the BDMRR Bill by one of their opinion writers, Rachel Stewart, and it included a lot of misgendering.

(I don’t want to raise the platform of the bigoted statements made in her article, so I’m not going to the link to it. If you really want to find it, you can go searching.)

Myself and another complainant, whose name I have also redacted below in an effort to protect them from harassment, independently lodged complaints about the article. These went first to the editor of the NZ Herald and then to the Media Council, in November 2018.

Today, the Media Council has published their decisions on these complaints on their website. My complaint was not upheld, whereas the other complainant’s was upheld in part.

Unfortunately, the part of their complaint that was upheld is nothing to do with the bigotry expressed in the article. Rather, it is about this paragraph, which was misleadingly put forth as a statement of fact:

Sure enough, American transgender lobby groups are being funded by the likes of billionaires Warren Buffett and George Soros. Why? Because investors want to help normalise the altering of human biology, and Big Pharma stands to make a fortune. It’s already started.

Rachel Stewart

Because that complaint was upheld, the Herald has now had to publish a note at the top of the article regarding the ruling. They have also published a note about the ruling on page A14 of today’s paper.

My complaint focussed on a different issue. I’ve included my complaint and all responses at the bottom of this article, so scroll down if you’d like to read them. Please note that I have redacted a person’s name from my article, including where I quote Stewart using it, so that repeating her statements here won’t add to the online abuse already aimed at this person.

As far as I’m aware, the Media Council (formerly known as the Press Council) is really the only system of oversight that can hold mainstream media to account in New Zealand. Like the Advertising Standards Authority, it’s an industry body of voluntary regulation. The NZ Herald is one of the Media Council’s paying members, and has agreed to abide by its rulings.

However, the grounds on which the Media Council will hear a complaint — its Principles — are quite limited. They are mostly what you would expect, setting in place requirements around things such as accuracy, clearly distinguishing between comment and fact, and declaring conflicts of interest.

The closest they have to a Principle that deals with this kind of bigotry is Principle 7, which regards Discrimination and Diversity. However, this rule only restricts some very specific behaviour:

Issues of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability are legitimate subjects for discussion where they are relevant and in the public interest, and publications may report and express opinions in these areas. Publications should not, however, place gratuitous emphasis on any such category in their reporting.

Media Council

The Media Council’s principles give no grounds under which I could argue Stewart’s column should be censured because it is harmful, or bigoted. I could only argue that it places “gratuitous emphasis” on transgender people, but this is not a commonly used or clearly defined phrase.

Honestly, because they don’t really have a rule for it, I did not think the Media Council was very likely to uphold my complaint. I already knew going into this that they rarely seem to uphold any complaints. I’ve written in the past, for example, about a complaint of mine that they did not uphold, which I still think was a bad decision on their part.

Thankfully, I don’t think my complaint needed to be upheld to send a message to the editorial team at the Herald that this is not acceptable. That’s why I included several references to NZME’s published commitments to inclusion and diversity in my complaint, even though they would not be directly relevant to the Media Council.

I hope my message has been heard.

This short saga has also made me think that, like the BDMRR Act, the Media Council’s rules may need to change. Though they do have a rule in place that appears as though it is intended to protect vulnerable groups from harm, I think the Media Council’s decision that Rachel Stewart’s transphobic article did not breach this rule goes to show that it is not fit for purpose.

This paragraph, quoted from my complaint, gives some context to the concerning precedent that may have been set by the Media Council’s decision here:

I hope that the NZ Herald would not consider, under any circumstances, publishing a similar opinion piece which treated gay, lesbian, bisexual, intersex, or asexual people with the same disdain as Stewart has shown here for transgender people.

Mark Hanna

If the Media Council will not be able to protect minority groups from bigotry in the media, then it is up to editors to refuse to publish that bigotry. I think the NZ Herald editor who wrote the paper’s response to my complaint got it exactly right here in his initial response to my complaint:

This does not mean columnists are entitled to publish carte blanche – discretion lies with the editor.

David Rowe, NZ Herald


Complaint documents

My initial formal complaint to the New Zealand Herald:

Tēnā koe,

I am writing to you to lodge a formal complaint regarding Rachel Stewart’s column published in the NZ Herald and on the nzherald.co.nz website today, headlined “Rachel Stewart: TERF a derogatory term to shut down debate” (published online at [URL redacted]).

Put bluntly, the article is horrendously transphobic. It is harmful, and I think the decision to publish it was incredibly irresponsible.

Stewart’s transphobic views have been widely known for some time now, in no small part due to her expressing them openly on social media. Just two weeks ago, for example, in response to positive coverage on Stuff of a transgender person who is not a woman, Stewart tweeted a link to the article along with this message:

“Have read this, and I need a cold compress & a lie down in a darkened room. I’m sorry, but I cannot partake in the delusion that this pregnant woman is a man. Not because I’m transphobic (I’m not), but because I recognise when people need psychiatric help.”

I’m not sure if you’re familiar with the concept of misgendering: referring to a transgender person as though they were of a different gender, commonly through the use of inappropriate pronouns like using “he” when referring to a woman. It’s a common tactic among transphobic people meaning to deny transgender people’s genders. For many transgender people it is used against, it can be very distressing.

In her article today, Stewart repeatedly uses this tactic, both against imagined transgender women and against [name redacted], with clear intention to falsely imply that they are men. Examples include:

“the current craze of people – overwhelmingly men – who say they were born into the wrong body”

“Under the proposed new law, a man can call himself a woman without ever medically transitioning (most never do) and insert himself in female-only spaces such as changing rooms, women’s refuges, and prisons.”

“a grown male stranger naked in the changing rooms at her local swimming centre”

“How about [name redacted] competing straight-faced as a female in [sport redacted]?”

I hope that the NZ Herald would not consider, under any circumstances, publishing a similar opinion piece which treated gay, lesbian, bisexual, intersex, or asexual people with the same disdain as Stewart has shown here for transgender people.

I do not see any reason why that same bare minimum level respect should not be extended to transgender people. They certainly deserve it, and I would have hoped that would be clear to everyone working at the Herald.

Just over a year ago, NZME issued a press release proudly proclaiming that they were “the first media company in New Zealand to be awarded the Rainbow Tick, acknowledging its active effort to be a diverse, innovative and inclusive organisation.” (http://www.scoop.co.nz/stories/BU1710/S00268/nzme-awarded-rainbow-tick.htm)

The press release went on to discuss NZME’s Inclusion and Diversity strategy, saying it encouraged employees to “bring your whole self to work”. After this, NZME adopted rainbow branding in celebration of its Rainbow Tick accreditation.

The decision to publish Rachel Stewart’s transphobic article today clearly flies in the face of any commitment NZME might have had to encouraging diversity. I don’t know how any transgender person working at NZME could be comfortable with the decision to publish it, and I hope it hasn’t been too distressing for them.

This sort of transphobia existing in the darkest corners of social media is bad enough, but it’s quite another thing for it to be published in the country’s most widely read newspaper. Intentionally or not, the decision to publish Stewart’s transphobic views there comes with clear tacit endorsement of them. I can only imagine how distressing that decision must be for any transgender people working at the Herald, or who may hope to one day work there.

To my reading, the Media Council’s principle on “Discrimination and Diversity” is not clear where it stands on this point, noting only that publications should not “place any gratuitous emphasis” on issues of gender or minority groups. Whether this opinion piece falls afoul of that principle or not, I hope on reflection you will agree with me that it should never have been published. The fact that it was published as an opinion piece is not sufficient justification for its bigoted content.

The impact reporting has on people is important. The Herald has published some great work with a good, positive impact on people. The work done by Herald journalists on the mistreatment of Ashley Peacock is a great example on this. But for the Herald to take credit for that, it must also take responsibility for the harm done by other reporting.

I hope you will retract Rachel Stewart’s transphobic opinion piece without further delay and publish a prominent apology to those harmed by it, along with a statement in support of transgender people and a commitment to never publish similarly transphobic articles in the future.

Ngā mihi,
Mark Hanna

The response I received from the NZ Herald:

Kia ora Mark,

Thank you for your email.

I apologise for the unintended offence caused to you by Rachel Stewart’s column.

Stewart’s piece is clearly a very personal view of a very difficult issue. It is clearly marked as her opinion.

In the column, Stewart argues that fundamentally, “all human beings – including trans peoples – deserve human rights and respect”.

However, she feels that the adoption of the term “Terf” has been used to shut down debate on the issue of transgender rights – which is important given proposed changes to the Births, Deaths, Marriages and Relationships Registration Act.

She takes issue with the use of the term by a Member of Parliament, Louisa Wall.

Stewart raises concerns about changes to the law, which she feels have been difficult to debate in the present climate.

Stewart acknowledges some of the scenarios she describes in the column are fanciful:

“Look I’m trying to make light of this stuff because no other approach has our government listening.”

Stewart’s discussion of the funding of transgender groups and the role of Big Pharma is posited as a theory to answer a question: “When movements gain full throttle as rapidly as the trans train has, it must be asked, who stands to gain from it?”

While some of the language used by Stewart is confronting, it is important that difficult issues can be freely debated. In this case, it is one which has drawn strong comment from an elected MP and relates to an impending law change.

The issue has emerged out of the debate about the decision to ban uniformed officers from marching in the Pride Parade, which has been covered extensively.

Part of the brief of a columnist is to comment – often provocatively – on social issues and attitudes. They have licence to push the boundaries of what might be considered “polite” or politically correct in everyday conversation.

While causing offence is certainly not the intention, it is almost an inevitable consequence of a cutting-edge columnist.

This does not mean columnists are entitled to publish carte blanche – discretion lies with the editor. As such, I can assure you an editor does not publish such comment lightly.

The easier course is, naturally, to censor anything that might be seen to be controversial: it would certainly make an editor’s life less troublesome. However, the easy course is not at always the best course, and an editor must always be mindful of a duty to protect freedom of speech and provide a plurality of opinion.

We note, too, that the NZ Media Council has ruled that readers do not have the right to not be offended.

“No-one is forcing the complainant to read that column or even that newspaper or website.” The reader has a right to ignore a columnist and hold different views, the council says, but that does not mean they have the right to stop the columnist expressing theirs.

In response to Rachel Stewart’s column, we have welcomed a contrasting view from Louisa Wall, which can be read here:

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12168621

You are also welcome to make your own views publicly known in a letter to the editor to be considered for publication. I have included the submission guidelines below.

Kind regards,
David Rowe
Senior newsroom editor
NZ Herald

My escalation to the Media Council:

Tēnā koutou,

I am writing to you to escalate a formal complaint regarding Rachel Stewart’s column published in the NZ Herald and on the nzherald.co.nz website on 2018-11-28, headlined “Rachel Stewart: TERF a derogatory term to shut down debate” (published online at [URL redacted]).

On the day it was published, I sent a formal complaint to formalcomplaints@nzherald.co.nz. The next day, I received a response from the editor. I have included both of these messages at the bottom of this email.

I was disappointed to find that the response I received from the editor did not directly address any of the issues I had raised in my complaint. Since having received this response, I have become aware that an identical response was also sent to others who lodged complaints about the same article. I have heard from other complainants that their complaints dealt with substantially different aspects of the article, but that these issues they raised were also not dealt with by the identical response they received from the editor.

As well as the issues raised in my original complaint, I would like to address parts of the response I received from the editor.

The editor highlighted the disclaimer included at the end of Rachel Stewart’s article that “all human beings – including trans people – deserve human rights and respect”.

I have a background in anti-quackery activism. Over the past few years, I’ve lodged dozens of complaints with authorities such as Medsafe and the Advertising Standards Authority regarding misleading health claims in New Zealand advertising, as well as writing about the various forms of regulation around this issue in New Zealand and where they fall short. One feature that comes up again and again in this context is the false disclaimer. In the context of misleading health claims, it typically takes a form like this:

“Our product can cure cancer.

We don’t make any claims that our product can treat or cure any disease.”

You might be familiar with false disclaimers in other contexts, such as in the case of sentences starting with “I’m not racist, but”.

I believe the disclaimer at the end of Rachel Stewart’s article is a false disclaimer of this nature.

Stating that she believes trans people deserve human rights and respect does not somehow negate the lack of respect she shows in the intentional misgendering in her article, which I detail in my complaint.

Nor does this false disclaimer negate her campaigning against the rights of trans people, such as her signing of a letter written by a group dedicated to challenging and undermining the rights of transgender people in New Zealand, which seeks to write biological essentialism – the philosophy underlying the incorrect view that trans women are really men – into law.

The response I received from the editor also has a focus on offence, including what is commonly known as a “not-pology” of the form “sorry you were offended”, which implies all responsibility falls to the person receiving the apology.

At no point in my complaint did I raise offence as an issue. Rather, I explained that publishing bigotry on this level does harm. As I stated in my original complaint, “for the Herald to take credit for [reporting that has a good, positive impact on people], it must also take responsibility for the harm done by other reporting”.

Regarding the Media Council’s principles, as expressed in my complaint to the Herald, I unfortunately find the wording of the principle regarding Discrimination and Diversity to be confusing and unclear. It notes that publications should not “place gratuitous emphasis on any such category [of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability] in their reporting”. However, I am not sure what is meant by “gratuitous emphasis”, or where the line might fall.

I would hope that you will agree with me that the publication of bare-faced bigotry such as what was seen in Stewart’s article should not be acceptable under the Media Council’s principles. As I expressed in my complaint to the Herald, I do not believe it would be seen as acceptable to publish a similar level of bigotry were it aimed at gay, lesbian, bisexual, intersex, or asexual people. I do not see any reason why that standard should be different for transgender people.

I note that, since my complaint, the Herald has published a response by Louisa Wall, and they have also published a small correction to one part of Stewart’s article that was factually incorrect. I do not believe either of these responses deal with anything that I have raised in my complaint, and I stand by my recommendations for how the Herald should proceed:

“I hope you will retract Rachel Stewart’s transphobic opinion piece without further delay and publish a prominent apology to those harmed by it, along with a statement in support of transgender people and a commitment to never publish similarly transphobic articles in the future.”

Thank you for considering my complaint.

Mark Hanna

The NZ Herald editor’s response to the Media Council:

Dear Mary,

Thank you for the opportunity to respond to these complaints. I will address both complaints in this response, as they touch on similar issues and relate to the same Media Council Principles.

Both Mark Hanna and [name redacted] argue that the column “TERF a derogatory term to shut down debate”, by Rachel Stewart, breaches Principle 7 – Discrimination and Diversity. [name redacted] argues the column also breaches Principle 4 – Comment and Fact – and likely Principle 5, Columns, Blogs, Opinion and Letters.

While I understand the concerns expressed by Mr Hanna and [name redacted], I do not agree that the column is in breach of Media Council principles.

The column needs to be judged as a whole, and in the context of a wider debate.

The article is an opinion piece and is clearly labelled as such. It is a response to comments made by a publicly elected Member of Parliament, Louisa Wall, in which she was recorded saying: “I don’t want any f***ing Terfs at the Pride Parade.”

The column is also written in the context of proposed changes to the Births, Deaths, Marriages and Relationships Registration Act.

Stewart argues that the use of the term “terf” – or trans-exclusionary radical feminist – is being used to shut down debate on the issue.

It emerged out of the discussion surrounding the decision to ban uniformed officers from marching in the Pride Parade, which has been covered extensively.

While there had been some reporting on the Births, Deaths, Marriages and Relationships Registration Bill, it had been limited, with little coverage of dissenting voices.

In Britain, a similar discussion is taking place about reforms to its Gender Recognition Act to allow people to self-identify and has been the subject of far more extensive media coverage.

That why it is important Stewart’s views should be allowed to be heard.

[Name redacted] argues Stewart breaches Principle 4 – Comment and Fact when she writes: “Sure enough, American transgender lobby groups are being funded by the likes of billionaires Warren Buffett and George Soros. Why? Because investors want to help normalise the altering of basic human biology, and Big Pharma stands to make a fortune.”

It is a matter of public record that Buffett and Soros have funded, through charitable foundations, transgender groups in the United States. While it could be argued Stewart is drawing a long bow to the potential gains made by pharmaceutical companies, exploring such a theory is not in itself a breach of Media Council principles and I believe there is sufficient information available online and elsewhere for readers to make up their own minds.

I strongly reject [name redacted]’s claim of anti-semitism in Stewart’s column. Mentioning Soros as being among billionaires to have donated to transgender lobby groups does not prove such a claim. His ethnicity or religious background is not relevant and is not mentioned. The statement certainly does not place “gratuitous emphasis” on a protected group.

[Name redacted] also argues that the following paragraph breaches Principle 4:

“I don’t know about you, but I wouldn’t want to be locked up alone in a cell all night with a hairy, muscly, sex-starved inmate of either gender – but particularly one with his full kit and caboodle intact.”

This is clearly Stewart’s personal view, and not a factual assertion that “trans women prisoners will be rapists”, as [name redacted] says.

I also disagree that the statement breaches Principle 7 – Discrimination and Diversity. The principle holds that: “Issues of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability are legitimate subjects for discussion where they are relevant and in the public interest, and publications may report and express opinions in these areas.”

While the language used by Stewart is confronting, she is expressing personal views that reflect her own fears. Unacceptable as they may seem to many readers, some of her concerns are shared by others. Given that these opinions relate to an impending law change, I believe it is relevant and in the public interest to express them.

I do not agree that the column is in breach of Principle 5 – the article is clearly identified as an opinion piece. I not believe the requirements for a foundation in fact have been breached. We did acknowledge one factual error in the piece – relating to the earliest age at which certain medical treatments are given to children. This was corrected both in print and online and does not undermine Stewart’s fundamental arguments.

In his complaint Mr Hanna, refers to a letter signed by Rachel Stewart and comments made earlier on Twitter. Neither is relevant to the complaint – the column must be judged on the words within it.

Mr Hanna argues that Stewart is guilty of misgendering. The Herald agrees that transgender individuals should be referred to by the gender by which they live, and that is our reporting policy.

However, when Stewart uses the pronouns in the paragraphs quoted she is talking in general terms and about hypothetical scenarios under the new law, not about transgender individuals. The reference to [name redacted] does not use such a pronoun.

Mr Hanna disregards Stewart’s conclusion in her column as a false disclaimer, however I don’t think it can be dismissed outright and must be considered as part of assessing the column: “I believe all human beings – including trans people – deserve human rights and respect. What I don’t believe is why anyone questioning the obvious dangers lurking within the proposed new law, should equate to them not being afforded the same.”

Mr Hanna mentions NZME’s Inclusion and Diversity strategy and its Rainbow Tick accreditation. He argues that publishing Stewart’s views is a tacit endorsement of them.

This is incorrect. The Herald aims to be a broad church of opinion, and publication of an opinion is certainly not an endorsement of that viewpoint.

It is NZME’s policy to be inclusive and diverse in all of our operations, actions, policies and procedures.

However, we do need to be a platform for robust debate, even if that is sometimes uncomfortable or painful.

I agree with Mr Hanna that the impact of reporting is important, and the Herald must take responsibility for any harm done by its reporting.

The reaction to this column has been very strong on both sides. On social media, the debate has been passionate and sometimes vicious. This shows both the difficulty of having such a discussion in mainstream media – but also the importance of doing so.

It is better, I believe, that views such as those expressed here by Stewart can be discussed and debated in the open.

Since publishing the column, the Herald has welcomed a response from Louisa Wall and a piece from ActionStation, providing views from trans people on the issue.

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12168621

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12172412

This month, we have run an-depth news feature on the Births, Deaths, Marriages and Relationships Registration Bill, explaining the issue, the political implications and canvassing people on both sides of the debate.

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12180576

We have also run an editorial, which addresses the need to have an open debate about the Bill, but also makes the Herald’s own position clear:

“The Herald believes that trans people should be recognised and respected according to the gender by which they live. The proposed law change removes potentially discriminatory processes which make it harder for those without the resources to meet the medical criteria and go through a Family Court process.

In principle, we support the bill.”

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12180948

While, of course, Stewart’s column must be judged on its own merits, it has been the catalyst for discussion and reportage which has ultimately helped our audience better understand the issues involved.

Kind regards,
David Rowe
Senior newsroom editor
NZ Herald

My final response to the Media Council:

In their response, the editor denies that Rachel Stewart used misgendering in her article. I believe it is clear that she was not referring to hypothetical cis men pretending to be trans women. Rather she was referring to hypothetical trans women, and using misgendering as a rhetorical device to imply that they are really men.

This is all particularly clear when the context of Stewart’s transphobic statements elsewhere is taken into account, which is why I believe it should not be entirely ignored as the editor suggests.

Though they note no pronoun was used when Stewart discussed [name redacted], the implication of Stewart’s clear incredulity at [name redacted] “competing straight-faced as a female” is that Stewart believes and means to imply that [name redacted] is not a woman. I hope it is clear how closely this rhetoric is to more explicit misgendering through the use of inaccurate pronouns.

The editor admits in their response that misgendering transgender people is counter to the Herald’s reporting policy. I would hope this extends to misgendering a hypothetical transgender person in order to discredit trans women in general, as well as the clearer case of misgendering a specific person.

I understand that part of the role of an editor is to support their writers, but it seems to me that in this case it has resulted in a defensiveness that has led to the Herald failing to enforce the policy that they quoted.

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Press Council Complaint: Homeopathy in the Wairarapa Times-Age

In February this year, an article was published in the Wairarapa Times-Age (both in print and online) headlined Use of natural remedies is on the rise. The article discussed some specific cases of so-called “natural remedies” being used to treat serious diseases, such as intravenous vitamin C for leukaemia and homeopathy to treat various forms of cancer.

Except for a brief mention at the bottom of the article encouraging people with cancer to talk to their doctor before using any “alternative therapies”, there was no mention of the fact that none of the treatments discussed are supported by any reliable evidence. Instead, the article uncritically included various quotes such as this, from homeopath Claire Bleakley:

Featherston-based homeopath Claire Bleakley said she has treated cancer patients using similar natural remedies [to intravenous vitamin C] – significantly extending life expectancy.

She mentioned two of her patients in particular: A man with tumours who lived for seven years after being given two to live, and a woman with ovarian cancer who lived 15 years past her initial prognosis.

“There have been some exceptional results,” Mrs Bleakley said.

“We are indoctrinated to think chemotherapy is the only cure for cancer, but alternative [remedies] have been proven to be more life giving.”

Medical anecdotes such as these unfortunately tend to be very convincing despite the fact that they can also be completely misleading. The reasons why people might get better are varied and complex. Without running a controlled test, there’s no way to know whether or not a particular treatment contributed to an improvement in health. That’s exactly why we need to undertake rigorous clinical trials before we can say with confidence what the effects of any particular treatment are. It’s also why the Medicines Act prohibits the use of health testimonials like this in advertisements, although that restriction of course doesn’t extend to news articles in publications like the Times-Age.

I thought, and still do think, that the lack of balance in this article has the capacity to do serious harm. I wrote to the editor of the Wairarapa Times-Age to make my case, and to give some suggestions for how they might attempt to mitigate the damage this article could do, in a formal complaint:

To whom it may concern,

I am writing to you to make a formal complaint regarding the article “Use of natural remedies is on the rise” published in the Wairarapa Times-Age this morning:
http://www.nzherald.co.nz/wairarapa-times-age/news/article.cfm?c_id=1503414&objectid=11399310

This article uncritically promotes the use of so-called “natural remedies” such as vitamin C or homeopathy for the treatment of cancer. They are promoted by the inclusion of quotes such as “There have been some exceptional results”, regarding the treatment of cancer with homeopathic products.

None of the relevant controversy regarding these treatments is discussed in the article. Although there is a brief note at the end that “those living with cancer [are encouraged] to consult their doctor or specialist before embarking on any alternative therapies”, this does not sufficiently address the important and relevant fact that these treatments are entirely unsupported by scientific evidence, as well as the utter implausibility of treatments like homeopathy.

The failure to discuss the lack of scientific evidence supporting these treatments, as well as the complete lack of plausibility underlying homeopathy, violates the Press Council’s principle of “Fairness, Accuracy and Balance”. The description of this principle on the Press Council’s website states that:

“Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.

Exceptions may apply for long-running issues where every side of an issue or argument cannot reasonably be repeated on every occasion and in reportage of proceedings where balance is to be judged on a number of stories, rather than a single report.”

This is not a long-running issue in which readers can readily be expected to be familiar with the lack of evidence supporting the treatments discussed in the article, so the exception should not apply. There is significant controversy surrounding the issues discussed in this article, but a fair voice has not been given to the opposition view.

Particularly as this article could lead to people living with serious diseases such as cancer to rely on ineffective treatments such as homeopathy, its lack of balance has the potential to cause real and serious harm. Therefore it is important that the Wairarapa Times-Age take appropriate action to prevent this harm by amending the article, publishing a prominent correction, or publishing a followup article linked to from today’s article, that discusses the lack of evidence and plausibility underlying the treatments discussed in today’s article.

If the Wairarapa Times-Age has trouble finding any experts to talk to about this topic, either the Society for Science Based Healthcare (http://sbh.org.nz/contact) or the Science Media Centre (http://www.sciencemediacentre.co.nz/contact-us/) will be able to help.

Sincerely,

Mark Hanna
Society for Science Based Healthcare

Despite sending a follow-up email a few days later, I still hadn’t heard back from the editor over the next 10 working days, which is the deadline set in the Press Council’s complaints process as the time to wait before escalating a complaint to them if you don’t hear back from the editor. After I forwarded my complaint to the Press Council, the editor contacted me to apologise that he’d overlooked my complaint messages, which was apparently due to his having to deal with another complaint about the same article from Peter Griffin, manager of the Science Media Centre (Peter is also the editor and manager of Sciblogs, where my blog is syndicated, and we’d discussed our complaints via email prior to submitting them).

When I forwarded my complaint to the Press Council, I fleshed it out a bit more. I won’t quote the whole thing here as a lot of it would just be repeating myself, although I’d be happy to share my full complaint if anyone would like to see it, but here is one part I added that I think is important and worth sharing:

As far as I’ve been able to tell, the Wairarapa Times-Age has not published a large number of articles regarding this, so it cannot be argued that the counterpoints have already been published in earlier articles.

When it comes to whether or not readers can be expected to be familiar with the important facts not mentioned in this article, I would like to bring the Press Council’s attention to a 2009 study (I am not aware of any more recent data collected on this) published in the New Zealand Medical Journal entitled “Beliefs about homeopathy among patients presenting at GP surgeries”. This study can be accessed for free on Page 94 of this PDF:
http://www.nzma.org.nz/__data/assets/pdf_file/0010/17794/Vol-122-No-1295-22-May-2009.pdf

This study found that only 8 out of 124 respondents disagreed to some extent that “There is good scientific evidence that homeopathy works”, and only 24 respondents reported that they believed homeopathic products were either “very dilute” or that there was “nothing there”. In contrast, 82 respondents agreed to some extent that “There is good scientific evidence that homeopathy works”, and 80 believed that homeopathic products are either “Very concentrated”, “Moderately concentrated”, or “Moderately dilute”.

Contrary to these common beliefs, most homeopathic products are diluted to the point that it is astronomically unlikely that there is even a single molecule of the original ingredient present in the product, and there effectiveness is thoroughly unsupported by scientific evidence. For example, a rigorous review undertaken by the Australian Government’s National Health and Medical Research Council (NHMRC) in 2013 investigated the evidence regarding homeopathy for 68 clinical conditions and concluded that “The available evidence is not compelling and fails to demonstrate that homeopathy is an effective treatment for any of the reported clinical conditions in humans”
(https://www.nhmrc.gov.au/_files_nhmrc/file/your_health/complementary_medicines/nhmrc_homeopathy_overview_report_october_2013_140407.pdf)

For this reason, and especially because the article discussed the use of ineffective therapies in the treatment of terminal illness, it is very important that stories such as this be balanced. As I stated in my original complaint to the editor, I believe the article in its current form has the capacity to do serious harm and that the Wairarapa Times-Age has a responsibility to mitigate this harm. An appropriate response would be amending the article, publishing a prominent correction, or publishing a followup article linked to from the article from the 10th of February that discusses the lack of evidence and plausibility underlying the treatments discussed in today’s article.

(The NHMRC link I provide there is from their 2013 conclusion. Within 2 weeks of submitting this complaint, however, they released their final statement on homeopathy, which states “there are no health conditions for which there is reliable evidence that homeopathy is effective”. This statement was not reported in the Wairarapa Times-Age)

Once the complaint was escalated to the Press Council, the editor of the Times-Age was given an opportunity to respond, then I had a final opportunity to write a short response to that. His primary argument was that the topic of “alternative medicine” was a long-running issue in a wider context, and that the exemption to the principle of balance should apply because other media have reported on the opposing side of the issue.

I strongly disagree with this argument. Although it’s true that media like the Wairarapa Times-Age do not exist in a vacuum, I don’t think this should mean that they don’t have a responsibility to provide balanced articles for their readers. The way I interpret the Press Council code, the exception can be useful when an article is part of a series of articles on the same issue, and when taken in the context of other articles in the series the overall view still maintains an appropriate balance. In the interest of balanced reporting, I believe exceptions to the principle of balance should be applied very sparingly.

Unfortunately, the Press Council disagreed with me. They have ruled not to uphold the complaint, and you can view their entire decision on their website here:
Case Number: 2426 MARK HANNA AGAINST WAIRARAPA TIMES-AGE

Here’s a link to their similar ruling regarding the complaint from the Science Media Centre:
Case Number: 2425 SCIENCE MEDIA CENTRE AGAINST WAIRARAPA TIMES-AGE

Here is a summary of their decision:

The Press Council agrees with the editor that the debate over alternative remedies is sufficiently well known not to require balancing comment in every story about them. The subject falls within the exception to the principle of balance for issues of enduring public discussion.

The complainant in this case raised the important question of whether the exception can be invoked for an article in a newspaper that may not itself have covered both sides of the debate. The Council considered this point closely and came to the view that the exception has not been applied as narowly as the complainant contends and should not be. A newspaper, even if it is the sole newspaper of its locality, does not exist in a vacuum. Its readers, meeting an uncritical story on the supposed popularity of homeopathy and natural remedies, are likely to be aware the efficacy of these treatments is strongly contested by medical science.

I think this is a very worrying precedent to set. Newspapers such as the Wairarapa Times-Age can now feel justified in publishing unbalanced articles on topics such as homeopathy without feeling bound to uphold the Press Council’s principle of balance. The public have a reasonable expectation, given that the Press Council exists to uphold standards in reporting and its first principle is that articles should be accurate, fair, and balanced. While it’s a good idea to take everything you read with a grain of salt, you should be able to feel justified in expecting media reports on controversial topics to provide a balanced view. I worry that people might read articles such as this with that assumption in mind, and falsely conclude that the views omitted from the article are not merited.

I’m also rather frustrated that the Press Council concluded that anyone reading articles such as this is “likely to be aware the efficacy of these treatments is strongly contested by medical science” even though I provided data from a survey that found only 6% of respondents disagreed that “there is good scientific evidence that homeopathy works”. I understand that the survey I cited was conducted 6 years ago, but as I said in my complaint I’m unaware of anything more recent.

Although I don’t think it is, I really hope that the Press Council’s conclusion that most people are aware that homeopathy is not supported by evidence is correct. Following last year’s story about Green MP Steffan Browning backing homeopathy for ebola and March’s story about the Australian National Health and Medical Research Council concluding that homeopathy does not improve people’s health, I think there is some basis to believe that more people are familiar with the lack of evidence surrounding homeopathy than 6 years ago, but I don’t expect there would be that large a difference.

One positive thing to take away from this, at least, is that the journalist who wrote the article said in a Facebook comment that she understood the article was unbalanced and that she should have done better. I hope she’ll take this as a learning experience and, when she or other Wairarapa Times-Age reporters write on matters of “natural health” in the future, that they get in touch with the Science Media Centre to provide that much-needed balance. If we can’t rely on the Press Council to hold journalists to a high standard of balanced reporting, then we’ll have to rely on journalists’ and editors’ own standards.

EDIT 2015/04/14 10:05 am: Peter Griffin, who also complained to the Press Council about this article, has published his thoughts on the ruling as well: When balance goes out the window

EDIT 2015/04/04 1:13 pm: The Wairarapa Times-Age has published a short article on this ruling: Times-Age supported by Press Council

EDIT 2015/04/14 2:21 pm: Grant Jacobs has also published a post with his thoughts on this ruling: Press Council rules on knowing readers minds?

EDIT 2015/04/15 2:51 pm: Andrew Bonallack, the editor of the Wairarapa Times-Age, has published his thoughts on the Press Council decision in an opinion piece for the Times-Age: Your right to choose sacrosanct