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Thursday, May 09, 2019

Witness Statement re Edinburgh Employment Tribunal involving Katherine O'Donnell

[Pictured: Appellant, Counsel and Witnesses
outside the Edinburgh Employment Tribunal
on 8th May 2019, constituting what is
believed to be the largest number of
trans people to ever appear in a UK
courtroom at the same time]

The statement below is the written evidence of Christine Burns MBE, provided to the Edinburgh Employment Tribunal hearing the case for unfair dismissal brought by former Times (Scotland) Night Editor Katherine O’Donnell. Having been admitted into evidence and cross-examined in open tribunal proceedings by counsel for the Times and the bench, this evidence is now public domain. For that reason the blanket copyright statement attaching to other posts on this blog does not apply. However, you are obliged to reproduce or quote the following accurately and responsibly. Link to this page rather than reblogging it.

The intention of this statement was to help the tribunal to contextualise other evidence that it would likely encounter in the course of hearings that are expected to span six weeks. That includes more specific evidence pertaining to any changes in the approach of the Times and Sunday Times in recent years and whether that might be related to changes at a higher level in the organisation. The tribunal is not in itself an ‘investigation’ of the newspaper’s output; however, changes in that output, and the internal decisions creating any such output, do have bearing on questions about the climate within the organisation, as might be experienced by an employee who feels affected by the subject matter. This would be true regardless of the subject in question. In this case the context is the reporting of trans lives.

The witness statement is in three sections. In the first section my personal background and experience is stated, in order to establish the reasons for my evidence having relevance. In the second part I provide the tribunal with a background to the history of press reporting of trans affairs, across all titles, over the majority of the last sixty years. The third and final section discusses what might be termed the ‘trans backlash’ and (within that broader context) how I believe that the Times and Sunday Times output departed from its previous pattern.

Christine Burns MBE
9th May 2019




WITNESS STATEMENT OF
CHRISTINE BURNS MBE


INTRODUCTION


The context in which I submit evidence to this tribunal is that by the combination of age, personal experience, voluntary advocacy work, policy work, professional consultancy and research as the author of three relevant history books, I have acquired a unique perspective by which to review past and recent events in the press coverage of trans people and their affairs.

I was born in February 1954, so I am now 65 years old. At the time of my birth the press was reporting the transitions of an American trans woman, Christine Jorgensen, and a Briton, Roberta Cowell, both well-documented. My age is of interest because, being aware of my own gender issues from pre-school, I have spent most of my life conditioned to notice press coverage about trans people where peers might not.

My first recall of reading press coverage was in 1966 (aged 12). It was the first time I felt an interest in reading a newspaper (The News of the World) and that interest was driven by their reporting of the divorce case involving  a trans woman April Ashley and her estranged husband Arthur Corbett. I should note in passing that the coverage of Jorgensen, Cowell and Ashley was by no means the beginning of press interest in trans lives. My book research has identified clippings dating as far back as 1810. I can supply further details of the history on request; however the coverage of the 1950s and 1960s is notable for a change in emphasis in the reporting because, for the first time in the twentieth century, the cases in question concerned trans women — people transitioning from Male to Female. Previously reporting had mostly concerned trans men (Female to Male) and the change in newspaper reaction is germane.

To summarise the relevant parts of my career:

I have been involved with the trans community for almost forty-five years, since first locating a support group (aged 20) in Manchester in 1974. This was also the year when the biography of Times columnist Jan Morris was published. I observed first hand the press coverage of trans people like Morris as I became more involved and saw myself as a member of the community being reported.

I have been involved in trans advocacy for approximately thirty years — since again noting press coverage of the case by a trans woman Caroline Cossey at the European Court of Human Rights in 1989/90.

I became a Vice President of the legal rights campaign ‘Press for Change’ shortly after its formation in 1992. I created the web site and editorialised press coverage and events, cementing my familiarity with press and TV coverage at that time. It would not be an exaggeration to say that I saw it all, since we had people scanning this content every day and passing it on to us. This work was in parallel with my ‘day job’ as a Principal Consultant for the global business and IT consultancy Cap Gemini, which I mention only to underline my professional experience in research, problem analysis, and solution-building.

My work, with colleagues at Press for Change, resulted in legal successes in the Employment Appeals Tribunal and European Court of Justice (EAT/ECJ: P vs S and Cornwall County Council, 1996); in the High Court and Court of Appeal (CA: A.D. and G v NW Lancs Health Authority, 1998/9); and at the European Court of Human Rights (ECtHR: Goodwin and I v UK, 2002). Those successes created regulations extending the Sex Discrimination Act (1999), case law establishing trans rights to unprejudiced clinical referrals (1999), and the process leading to the passage of the Gender Recognition Act (2002-4). These are of particular relevance because, as a Vice President of Press for Change I was in the front line dealing with press reaction to those legal successes and the phases it went through, from objective legal correspondent reporting to hysterical and vitriolic commentary. I will come back to those events below. This experience is also relevant in the context of judging how recent press coverage has changed compared with reaction to the original legal advances in 1996 (discrimination law), 1999 (health policy), 2002-2004 (legal recognition) and 2010 (the Equality Act).

My work on these significant legal milestones, establishing protected legal rights for trans people (and the precursor to trans non-discrimination protection in EA2010) led to close involvement with senior civil servants, Ministers and Members of Parliament from all sides. For this work I was awarded an MBE in the New Years Honours list 2005. It also led to relationships of trust with Fleet Street legal correspondents, working relationships with journalists from broadcast media (BBC, ITV, Sky), on and off record dealings with tabloid and broadsheet print media, and considerable experience across the board in being interviewed and seeing those stories reported.

From 2007 I became a full time self-employed Equality and Inclusion Consultant, as part of which I was commissioned to write the first official guidance about trans people for the Department of Health and I worked as Programme Manager for the Equality and Inclusion team at an NHS Strategic Health Authority (2009-13). My work creating a book with colleagues about the NHS equalities work led to a self-published work (Making Equality Work, 2013) and that in turn led to my first two volumes about trans campaign history (Pressing Matters, Vol 1 2013, Vol 2 2014). The extensive research and analysis for those two latter books involved reexamining and analysing the press response to our legal campaigns.

In turn, this book writing experience and a growing reputation as an historian led to the commission for my more recent book, Trans Britain (Unbound, 2018), filling a previously unmet need for a coherent narrative of trans experience in (particularly) the last sixty years. As an edited anthology, this commission also involved directing contributions from almost two dozen historical eye-witnesses and analyses of press, film and TV representation.

I submit that all of this experience, as described, has a bearing on the analysis and opinions that I have been asked to render in this case.

PRESS COVERAGE — THE LONG VIEW


I don’t wish to labour the 60 year history of contemporary press coverage of trans affairs beyond that which is necessary to establish a context for more recent departures. Suffice it to say that, in my view, a pattern of reporting trans lives was established around 1958 with the ‘outing’ of a trans doctor, Michael Dillon, by the Sunday Express. This marked a change from a climate of curiosity and mild disapproval to that of portraying trans people as subjects for hostile exposure and tabloid titillation. Broadsheets at the time appear to have shown little interest, even bearing in mind that the Times was witnessing the long slow transition of one of its own distinguished reporters, Jan Morris, over the course of years from 1964-72. This was a time, of course, when there was a greater focus on the post 1967 (Sexual Offences Act) decriminalisation of adult gay male relationships and the emergence of Lesbian and Gay activism and second wave feminism. The April Ashley divorce case generated press interest during the course of the case (1969-70) but this period is not remembered as especially hostile to trans people.

Broadsheet press focus changed with the publication of the Jan Morris biography in 1974, as analysis intersected with the emergence of second wave feminist commentary in that decade. This is a point at which tabloid and broadsheet coverage diverged. The tabloids continued to pursue outing trans people to feed an appetite for sexual titillation in the Sunday editions. Broadsheets meanwhile appear to have soon pigeonholed commentary about trans people (and here I mean almost exclusively trans women) as polemic fodder for emergent feminist writers such as Germaine Greer.

The points to note here are that the existence of trans people were well known at this time and, for the broadsheets, the coverage was fairly random as columnists looked for topics to write about. Trans people weren’t doing anything of note. They were trying to live their lives and avoid being outed by the tabloids. The outcome of the April Ashley case had knocked trans people’s prospects on the head. Once a broadsheet commentator had written one polemic applying the new radical feminist theory to ostracise trans women it was hard to come back and do another very soon in the same paper. The characteristic of trans broadsheet reporting throughout most of the seventies and eighties (and initially into the nineties) was that reporting was occasional and either random or linked to a news event. This is why any quantitative analysis will show clusters of broadsheet commentary as trans people moved into using the law to press for their rights. The first of these cases was Rees v UK in the ECtHR in 1986, followed by Cossey v UK in the same court in 1989/90.

The pattern of broadsheet coverage seemed consistent. Firstly the legal correspondents would report objectively what happened. These trans appellants were making interesting arguments about the detriment they experienced but they were ultimately losing their cases, so there was scope for technical discussion of the merits or otherwise of the court’s conclusions. Following this, the news and comment sections would weigh in. Commentary in those days would be split. Sometimes it would be sympathetic, arguing that the outcome was unjust. Other times the comment would be vitriolic. Mark Rees (Rees v UK) writes in my most recent book that he experienced both. A significant point here is that there was no notable difference between any of the competing titles: The Times, Telegraph, Guardian and (later) the Independent would apply their political perspective but their coverage was evenly split between sympathy and disapproval. Trans people were not characterised as dangerous or predatory, except where correspondents appeared to have taken on a particular radical separatist feminist theory that had arrived from a writer in the United States, Janice Raymond.

This consistency of timing and reaction persisted through the nineties, even as Press for Change began to win significant strategic legal cases. The broadsheets were broadly disinterested in trans people when we weren’t making waves and then went through the stages of objective legal analysis followed by mostly radical feminist polemic. The only new factor was the emergence of editorial leaders to put a stamp on the proceedings. A broadsheet paper would express sympathy for the ‘plight of transsexuals’ but then criticise the courts according to the editorial board’s beliefs regarding the role of the judiciary. Having dumped their opinions on the readers the papers would then forget the subject and move on. As campaigners we grew used to this. We knew when our judgements were going to be handed down. In some cases we had informed knowledge of what the decision was likely to be and reached out to favoured journalists to brief them. And then, after 7-10 days of madness everything would settle down and the press would have moved on. We were then able to get on with exploiting the legal outcome without molestation.

The established pattern continued even through the period when the Gender Recognition Act was framed and passed. The 2002 decision by the European Court of Human Rights was reported according to the papers’ broader politics but there seemed to be an acceptance, after 15 years of almost identical cases being heard and reported, that the judgement was the right thing really. I was closely involved with helping civil servants to both frame the legislation and nurse it through Parliament and the press were largely disinterested in what the Gender Recognition Act involved or what its wider effects might be. This is significant in the context of recent ferocious and misleading reporting about the mere proposal to improve the legislation by removing one class of evidence in applications.

The actual passage of the Gender Recognition Act was not a big deal as far as the press was concerned. They seemed to be more interested in the tabloid story of a trans contestant, Nadia Almada, on Big Brother. My recall of the ensuing period of almost a decade was that the press was neither more nor less interested in trans people. The Gender Recognition Act came into force in April 2005 with barely any mention. There would still be occasional polemic pieces by a small handful of feminist columnists or guest writers, notably Germaine Greer, Julie Bindel and Julie Burchill. The only notable change towards the end of the ‘Noughties’ was that the controversy shifted from the polemic itself (which was true to the established style of those writers) and became a story about the broader public reaction to what they had written. The journalism became the story, rather than the content.

The broadsheets all continued to be a mixed bag. The Guardian had hosted Julie Bindel’s anti-trans columns, for instance (on one occasion publishing an apology after the fact) but it also hosted the first regular column by a trans woman in the online edition of its Life and Style section. The Independent (whilst still a print broadsheet) added more and more trans people to its annual ‘Pink List’ feature each year — awarding the Number One spot to trans journalist Paris Lees in 2013 and trans actor Riley Carter-Millington in 2015 — but was not immune from publishing the occasional disapproving column. (Disclosure: I was a judge for the Pink List from 2013-15). I do not have a particular recall of the Times or Sunday Times being different from their peers throughout this period — at least until around 2015/16.

TIMES COVERAGE FROM 2016 ONWARD


The roots of what may be characterised as a ‘trans backlash’ appear in retrospect to have been sown in 2015 and they are not specifically because of the actions of trans people or any legislative moves. The context is that trans people were suddenly becoming more visible globally in the popular media.  In the United States Time Magazine declared a ‘Trans Tipping Point’ in 2014. American Vogue declared 2015 to be the ‘Year of Trans Visibility’. The world’s press was full of Caitlin Jenner. Audiences were watching a trans character in the Netflix series Orange is The New Black. UK soaps were vying with trans characters. Eastenders featured Riley Carter-Millington. Hollyoaks followed suit with Annie Wallace. These were popular stories.

This new visibility was met by a resurgence of commentators such as Germaine Greer, Julie Bindel and Julie Burchill. As experienced older-generation observers we saw this as nothing new. They were ‘doing their thing’. However, the ground had shifted. Just as the ‘Me Too’ has caught out many famous figures in the United States, who discover that the world views their habits differently than before, social media and changed social standards among the young meant that these commentators did not enjoy the same ride as they had been used to. The story shifted to the reaction that young people (not necessarily trans) had towards the opinions of these old-school writers. Students would picket their talks or call for them to be disinvited. The story became falsely characterised as one of ‘Free Speech’ — although it should be noted that each of these writers had no shortage of high profile platforms to express their views. Some retreated to periodicals across the political spectrum: Spiked, The Spectator and the New Statesman. An article by Julie Burchill in the Observer was taken down by that paper’s editors only to be republished by the Telegraph.

It should be stressed that, even at this stage, there was not a notable difference between the main broadsheet papers. The conversation was being driven from the periodical sphere and online in blogs. The Guardian/Observer was conflicted. The Telegraph reflected the diverse positions of its commentators. The Independent seemed no longer relevant after going out of print, but was mostly positive. They all reported the controversy and they all mostly prioritised the opinions of non-trans people. The finger of blame was being pointed at trans people as a monolithic entity, even though the actions driving the story were largely attributable to students and social campaigners who were typically not trans. There was a feeling among actual trans campaigners that this was about us, rather than by us.

At this point (during 2016) The Times appears to have begun to take a unique path away from the pack. The Guardian and Telegraph (plus the tabloid Daily Mail and Mail on Sunday) continued to report the story. The Times and Sunday Times began (in my view) to MAKE the story in an increasingly worrying fashion.

During the course of 2016 the Times and Sunday Times featured approximately half a dozen trans-related stories, led by writers such as Rod Liddle. This did not appear at the time to be a departure from business as usual. Certainly, for Liddle, the opinions voiced about trans children and adolescents (as an example) seemed to be in keeping with his brand of polemic. The level of coverage in the whole year did not raise eyebrows, except in exasperation at the one-sidedness.

That pattern changed markedly in 2017, however — and it changed uniquely for the Times. Over the course of that year the Times and Sunday Times published over 130 items — mostly news and op-ed, with news becoming the dominant position in both papers as the year progressed. Almost all could be said to be negative, with varying degrees of careful deniability. This was not normal in any sense. The level of coverage (averaging almost 3 items a week) was more than an order of magnitude greater than anything the two titles had previously published. There had not been this coverage over the trans provisions in run up to passage of the Equality Act in 2010. There were a few establishment voices fretting about the Gender Recognition Bill when it was debated in 2004, but typically no more than one shot per commentator. The Times and Sunday Times had not appeared to have a distinctive editorial line on that topic back then. As noted previously, other legal cases and policy advancements had been short term storms in teacups and the Times was then in line with other Broadsheet coverage.

The other notable factor about this tsunami of negative coverage, beginning in 2017, was the degree to which editorial standards appeared to be abandoned. The two titles were standing up their pieces with largely one-sided opinion from personalities with no genuine qualifications in the subject matter and an axe to grind. By comparison, clinical or legal experts in the subject matter did not feature highly and trans views appeared to be treated as suspect, driven by (hinted) ulterior motives and fit for condemnation. The paper’s line of topics seemed to reflect the talking points of a small cohort of commentators who had appeared as if from nowhere to be interviewed as authorities on a regular basis. Trans people and the charities working in this area were presented as ‘powerful’ (the implication being ‘too powerful’). Conspiracy theories about the involvement of jewish billionaires and ‘big pharma’ were aired without challenge.

The idea of a journalist using carefully deniable artifice to insinuate things about a person, organisation or entire group is nothing new. We expect journalists to bring their prejudices to the page sometimes. Part of the role of editors (and lawyers) is to control the worst excesses that this could lead to and bring balance. Claims are checked. Genuine experts are valued. The damage is also limited by the fact that an article is usually a one-off. What shocked trans observers in 2017 was that editorial standards appeared to have been suspended in this sphere. This is underlined when the basis for many stories was later established to be false. False interpretation of statistics about trans prisoners and offending. Unbalanced reporting of the nature of the proposed changes to the Gender Recognition Act, presenting only a one-sided pejorative view of the implications. False insinuation about the leadership of the trans charity Mermaids — even after the Heritage Lottery Fund had reexamined plans to award a grant to them in 2018.

Many questions are raised by this — not so much about the journalists, but about editorial control, especially after complaints of inaccuracy and bias or actual proof that the basis for a story was flawed.

In countries that have passed legislation similar to the proposed changes to the Gender Recognition Act, the press does not appear to have been exercised in the same way, with visions of apocalyptic consequences for women’s safety and public order. Several countries have far more affirmative policies concerning gender variant children and adolescents than in Britain — they publish their results and their protocols are regarded as non-contentious good practice; there is no moral panic to compare with that conjured up in Britain and championed by The Times.

Finally, I come back to the point that the Times coverage of these affairs since late 2016 and the beginning of 2017 is of a level sufficient to qualify as a vendetta. There is no historical precedent. Neither the Times nor the rest of the press showed excessive (let alone obsessive) concern when the matters in question were originally being framed. Indeed, many of the articles in question proceed as though trans people have only suddenly surfaced as a subject for moral panic in the last 3-4 years, disregarding generations of low key and episodic reporting before.

ENDS