The Advertising Standards Authority finds nothing objectionable in a full page using lies to foment hate and fear against trans women. The full decision is below. The adverts went before their Council. What can be done now?
The adverts are unusual in hate-propaganda. The Nazis did not say that the Jews were stout German patriots, but people might pretend to be Jews to subvert the State. LGB All Liars are clearly referring to trans women, though they pretend otherwise. They don’t object to the real ones, they would say, fingers crossed behind their backs: their advert alleges “genuine trans people are concerned”. They worry “predatory men” may claim to be trans women. Though the advert refers to trans women: “A male bodied person can… perform intimate medical procedures on women. If a woman challenges them or objects to her own loss of privacy, she may be charged with a hate crime.” “Male-bodied” is a transphobic way of referring to a trans woman, the way we are said to be separate, different, other, and therefore to be seen as a threat.
They imagine now that trans women, even post-operative trans women, are “male bodied persons”. We still have Y chromosomes.
A hate crime is more than an objection. It is intimidation, harassment, property damage or violence. And the rules allowing trans women to be excluded from women’s spaces and women’s jobs will remain: the Scottish Parliament has no right to change them. But factual inaccuracy is no bar to an advert, the ASA council says: readers were likely to understand the claims in the ads to be reflective of the subjective opinions of a campaigning group concerning its views about the possible outcomes of the legislation consultation. For this reason Council considered that readers were unlikely to interpret the claims in the ad as objective but based on the advertiser’s own view about the legislation. In other words, the claims are unobjectionable because people will not believe them. But people do.
The old ASA slogan that I remember, that ads should be “Legal, decent, honest and truthful” no longer applies.
The Council says LGB All Liars have a human right to free speech, which the State can only constrain under particular circumstances: proportionate limitations necessary for the functioning of democratic society. What are those? The Convention, and the Human Rights Act, say,
Article 10 Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
LGB All Liars are spreading falsehood with the intention of fomenting hate. If they can persuade a publisher to print it, so far it seems they are entitled to do so. I don’t know what those adverts cost, but people are putting money into spreading hate and fear of trans people.
I consider the decision is wrong. The code is clear: 1.1 Marketing communications should be legal, decent, honest and truthful. The advert states that women will be unable to object to “male-bodied persons” in their spaces. That is false. The Equality Act will still apply.
The advert incites fear against me, personally, arguably a “male bodied person”, with a skeleton and a Y chromosome that might indicate I am male. I tend to feel I should have some legal right against that, but do not have expertise or access to make such a legal argument. Any lawyer who can suggest where I might begin looking, please do so. And I have a vague idea that discrimination law is not a devolved power: again, anyone who can cite the relevant law please say. It would help if there was a list of reserved powers.
Can I appeal? I can, by email to the Independent Reviewer: email@example.com. Read the Complaint Handling Procedures before doing so.
This is the text of my complaint:
I hereby seek a review of the ASA Council’s decision on the complaints with the above references.
The response from the ASA does not deal adequately with my complaint. It is not just that the advert was “misleading concerning the implications of the outcomes”, but that it was clearly and demonstrably false. The falsehoods were told with the clear intention to foment hatred and fear of innocent trans people. I referred to the law in my original complaint, which I quote below, and this was not addressed in the Council’s response. There is therefore a substantial flaw in the process by which that ruling was made.
Further, there is a substantial flaw in the council’s ruling. The council said the advert was “the advertiser’s view on the possible vulnerability of women in the outcome of the consultation”. However, it was no such thing. It was a clear falsehood, making statements about the law and the proposed law which are clearly untrue.
The advert states “it will be legal for them [predatory men] to access any women’s space. Whether women like it or not.” The rest of the advert gives a number of examples alleging this, all drafted to foment hate and fear.
What is the truth? The Scottish Government has consulted on a draft Bill by which trans people can get a gender recognition certificate more quickly and easily than under the current system. This Bill will not affect who is entitled to go into women’s space, which is governed by the Equality Act 2010, that is, by Westminster legislation. The Scottish Government has expressly stated that they do not intend to alter those rights: when they announced the consultation, they wrote,Women’s rights and protections will be as strong under this Bill as they are today, as we remain committed to protect, respect, and advance the rights of women and girls. We are not proposing to change the Equality Act or the exceptions within it that protect single sex spaces and services. See this link.
The Equality Act governs who can use women’s spaces. s7 defines what is gender reassignment: a person is protected against discrimination “if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.” That is, from the moment they decide to undergo the process, at which time they would not be entitled to a gender recognition certificate even under the proposed draft Bill, they should be treated as of the gender in which they present.
Who can be excluded from women’s space? Schedule 3 paragraph 28 governs this.
28(1)A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.
(2)The matters are—
(a)the provision of separate services for persons of each sex;
(b)the provision of separate services differently for persons of each sex;
(c)the provision of a service only to persons of one sex.
So I may be excluded even though I have a gender recognition certificate.
The advert refers to “performing intimate medical procedures on women”. A professional performing a procedure would either be instructed by the woman herself, or employed by a health service. Schedule 9 permits an employer to use only non-trans women for such a task.
The draft Gender Recognition (Scotland) Bill amends the Gender Recognition Act 2004, which apart from these amendments will remain in force. That means that GRA s9 remains in force. It states that my sex and gender are female- s9(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
However by s9(3) the Equality Act still overrules this: s9(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.
As things stand now, a “male bodied person”- someone assigned male at birth but protected under the Equality Act because they intend to undergo a process of gender reassignment, even though they have not yet seen a psychiatrist or been prescribed hormones or surgery- can enter women’s spaces, unless it is a proportionate means of achieving a legitimate aim to exclude them. So if the draft Bill were enacted, women could still exclude such trans women from women’s spaces on the same rules as now.
The advert tells these clear, demonstrable falsehoods in order to foment fear of trans people, the “male-bodied” people it refers to. Arguably, despite my transition from male to female I remain “male-bodied”, having a Y chromosome and a skeleton with distinctively male characteristics. I have a right to be protected from that hatred, which puts me in fear and restricts the places I feel able to go. Making people fear me, or someone apparently indistinguishable from me, and therefore it is a matter of public safety and the prevention of disorder or crime, under the Human Rights convention Article 11.2.
We received complaints about two ads, these were:
a) A press ad seen in The National newspaper (Scotland) on 6 March, contained the headline claim “Self-ID gives predators the green light.” The ad, which was similar in layout to a press article, made a number of claims concerning the implications of the Gender Recognition Reform (Scotland) Bill, which centred on concerns that predatory men, who might self-identify as women, posed a threat to women.
The ad concluded with two calls for action: “write to your MSP and respond to the Government’s consultation at lgballiance.org.uk/Scotland-consultation before 17 March.” and “Join us at the GR Bill demo at Holyrood at 2pm on Saturday.”
b) A press ad seen in The Metro newspaper (Scotland) at the same time which had the headline “PROTECT SCOTTISH WOMEN’S RIGHTS” and contained the claim “Every woman and girl in Scotland will lose vital legal protections if the Government pushes ahead with its proposals.” The ad concluded with the call to action “Join us at Parliament this Saturday to show your support for women’s rights!”
A total of 104 complainants, including yourself, who had seen either one or both of the ads objected to them on the following bases:
1) That they were offensive and likely to encourage discrimination against transgender people
2) That the ads were misleading concerning the implications of the outcomes of the ongoing consultation on the Gender Recognition (Scotland) Bill.
The ASA Council’s decision
Council understood that the ads were produced as a response to the Scottish Government’s consultation on the Gender Recognition (Scotland) Bill and made the following assessments concerning issues (1) and (2) raised above.
1) The ads highlighted the advertiser’s view on the possible vulnerability of women in the outcome of the consultation on the legislation and Council noted that they referred to a matter of controversial political and moral debate, which had provoked strong and mixed responses from the public. Council acknowledged that an ad placed by an organisation campaigning on that debate from a particular perspective was therefore also likely to be viewed as controversial, and acknowledged that the overall content of the ads was likely to cause serious offence to some readers of a general news publication. However, the CAP Code was drafted to reflect the requirements of Article 10 of the Human Rights Act 1998 which states that everyone has the right to freedom of expression, subject to any proportionate limitations as were necessary for the functioning of democratic society. Council considered that the ASA could not intervene to prohibit the ads without restricting the advertiser’s freedom of expression unjustifiably, and therefore concluded that they did not breach the Code.
2) Council considered that readers were likely to understand the claims in the ads to be reflective of the subjective opinions of a campaigning group concerning its views about the possible outcomes of the legislation consultation. For this reason Council considered that readers were unlikely to interpret the claims in the ad as objective but based on the advertiser’s own view about the legislation, which was still under consultation. Council therefore concluded the ads were unlikely to mislead.
We have made the advertiser aware of the issues that you and others brought to our attention in case they wish to take on-board the information provided when creating their ads in the future.
Although we won’t take further action this time, we will keep a record of your complaint for reference in our future assessments. We will also take your complaint into account in our regular, proactive ‘intelligence gathering’ sweeps, where we analyse a range of information – including complaints made to us – to report on issues, even when they have not broken the advertising rules, that have caused concern.
We hope this helps to explain our decision, and thank you again for contacting us.