Decision to Adjudicate: Kim Lithgow/ Kellyn Botha vs Die Burger

SUMMARY

The headline to the column in dispute read, So long as Tukkies still know whether they’re Arthur or Martha (published on 15 May 2021).

This ruling by Deputy Press Ombud Tyrone August was based on the Press Code that was in effect before 30 September 2022.

 

Kim Lithgow and Kellyn Botha each submitted a complaint about John Scott’s column “PS” in Die Burger on 15 May 2021.

The column discussed the University of Pretoria’s decision to introduce and implement certain measures to accommodate the needs of “transgender, intergender, nonconforming gender and non-binary gender” students. According to Scott, the university would increase the number of “gender-neutral” bathrooms to accommodate transgender students and planned to offer students “wider [gender] choices” during the registration process from next year.

The crux of the complaint was that the column was transphobic and that it perpetuated a cycle of ignorance and hatred against the transgender community.

Citing the clause on “protected comment” in the Press Code, as well as other relevant clauses, the Public Advocate declined to accept this complaint.

The Deputy Ombud agreed with the PA and declined to adjudicate these complaints.

 

THE RULING ITSELF

Complaints: 8945 and 8946

Decision to adjudicate

Date of publication: May 15 2021

Headline:  So long as Tukkies still know whether they’re Arthur or Martha

Author: John Scott

Particulars

Ms Kim Lithgow and Ms Kellyn Botha each submitted a complaint about John Scott’s column “PS” in Die Burger on May 15 2021 on the grounds that it is prejudiced and inflammatory. The column was republished, with the same headline, as an opinion piece on the same day on Netwerk24’s website.

1. Summary of text

1.1. Scott’s column discusses the University of Pretoria’s decision to introduce and implement certain measures to accommodate the needs of “transgender, intergender, nonconforming gender and non-binary gender” students.

1.2. According to the column, the university will increase the number of “gender-neutral” bathrooms to accommodate transgender students and also plans to offer students “wider [gender] choices” during the registration process from next year.

2. Complaints

2.1. Lithgow complains that the article is transphobic.

2.2. Lithgow further submits that the article is irresponsible on the grounds that it perpetuates a cycle of ignorance and hatred against members of the transgender community.

2.3. Botha contends that the article is deeply offensive toward members of the transgender community and ridicules the University of Pretoria’s trans-inclusive policy.

2.4. In addition, Botha argues that the article is “openly inflammatory” and poorly researched.

2.5. Both demand an apology from Die Burger, while Botha also demands an apology from Netwerk24.

3. Public Advocate

3.1. The Public Advocate disagreed with Lithgow’s contention that the article is transphobic, irresponsible or perpetuates a cycle of ignorance and hatred against the transgender community.

3.2. He also disagreed with Botha’s contention that the article is inflammatory.

3.3. He pointed out that Clause 7.2 of the Press Code states: “Comment or criticism is protected even if it is extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it is without malice, is on a matter of public interest, has taken fair account of all material facts that are either true or reasonably true, and is presented in a manner that it appears clearly to be comment.”

3.4. In addition, he cited Clause 5.1 of the Press Code, which  states that the media shall “avoid discriminatory or denigratory references to people’s race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, and not refer to such status in a prejudicial or pejorative context – and shall refer to the above only where it is strictly relevant to the matter reported, and if it is in the public interest” (the Public Advocate’s emphasis).

3.5. He also stated that that the author of the article disagrees with the university’s new policy of “gender neutrality”, and that Scott was entitled to do so.

3.6. The Public Advocate therefore declined to accept Lithgow’s and Botha’s complaints on the grounds that there was no prima facie breach of the Press Code.

3.7. Lithgow and Botha have now appealed to the Press Ombudsman to adjudicate their complaints.

4. Analysis

4.1. Scott’s column does indeed take issue with the University of Pretoria’s new measures to accommodate the needs of transgender students.

4.2. He questions the rationale behind these attempts as well as their practicability, and does so in a tone which may give offence to some readers.

4.3. However, the column sufficiently meets all the criteria in Section 7 of the Press Code on “Protected Comment”.

4.3.1. The complainants do not provide any specific examples of malice – generally understood as a desire to cause harm – in the column. Even though it employs a derisory tone, which may be hurtful to members of the transgender community, this is an insufficient basis on which to draw the conclusion that it is inflammatory. Nowhere does the column incite anyone to commit any act of violence against any member of the transgender community.

4.3.2. The column falls within the ambit of public interest, which is defined in the preamble of the Press Code as “information of legitimate interest”. Comment on the policies adopted by a public institution such as the University of Pretoria certainly meets this requirement.

4.3.3. While the claim that the column is poorly researched is noted, Clause 7.2 of the Press Code merely requires the author to take “fair account of all material facts that are either true or reasonably true” (my emphases).

4.3.4. Scott’s “PS” column in Die Burger on May 15 2021 meets the Press Code’s requirement that “it appears clearly to be comment”: by definition, a column is the personal opinion of the writer; in addition, the column carries the word “Gesprek” (Conversation) above the headline. The online version carries the word “Menings” (Opinions) above the headline.

Decision to adjudicate

For these reasons, I agree with the Public Advocate and decline to adjudicate these complaints.

Appeals procedure

The Complaints Procedure stipulates that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected]

Tyrone August

Deputy Press Ombudsman

June 17 2021