The Times uses 'Freedom of Expression' as its Defence in Transgender Case
At an employment tribunal in Edinburgh, the Murdoch-owned broadsheet was accused of inaccurate, misleading and prejudicial reporting of trans issues.
The Times has accused its former Scotland night editor of abusing employment law to campaign against the paper’s legitimate transgender coverage and stifle freedom of expression.
In doing so, the newspaper said that Katherine O’Donnell was carrying out a threat she made when she was made redundant after 14 years with The Times.
O’Donnell is suing for unfair dismissal, alleging direct discrimination, harassment and victimisation after she underwent gender reassignment. She claims that, under editor John Witherow, The Times had a culture hostile to trans people that was apparent, both from the way she was treated and from its journalism – which, she said, involved publishing distorted and misleading articles to advance an anti-trans agenda.
She alleges that, despite her seniority, she was not allowed to take on the role of acting Scottish editor because The Times did not want a trans woman as its public face.
The claims and counter-claims were presented in final submissions to an employment tribunal in Edinburgh on Friday at the end of a case that has lasted several weeks and heard evidence from a dozen senior executives from The Times – including the editor and his deputy, as well as from former employees, and trans rights campaigners.
If O’Donnell succeeds in her claim, the case could have huge implications for all news media, which would have to consider the feelings of staff from protected groups when planning coverage of issues affecting minorities.
Over the course of the case, O’Donnell put forward dozens of Times articles that she claimed were inaccurate, misleading or prejudicial. Headlines included ‘Surge in sex change operations‘, ‘Children sacrificed to appease trans lobby‘, ‘Labour’s purge of the trans rights heretics‘, and ‘Trans activists think debate is hate speech‘.
Her counsel, Robin White, argued that journalists at The Times had failed to inform themselves – she said Witherow’s evidence showed he did not know the difference between the Gender Recognition and Equality Acts – and were not given adequate training on protected groups. One witness learnt only while giving evidence that “deadnaming” – using a trans person’s previous name – was offensive, yet he continued to do so throughout his testimony.
Asked why The Times chose not to mark Pride month as other organisations did, its deputy editor Emma Tucker had said that it would be inappropriate for the paper to be seen “in one camp or the other”.
This, said White, amounted to a dreadful state of affairs at the “newspaper of record” and a toxic environment for trans members of staff.
Jane Callan, counsel for The Times, countered that transgender issues were covered by the “broadsheet” press in about equal numbers and that they covered the same issues of interest, for example self-identification.
The articles raised by O’Donnell were largely opinion pieces: “It is the role of the free press to stimulate debate… and part of the freedom of speech is the ability to cause offence.”
None of the articles she complained of was directed at her personally and there had been no Independent Press Standards Organisation rulings against the paper over its coverage.
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There was a fundamental difference between the function of The Times as a newspaper pursuing its freedom of expression and acting as O’Donnell’s employer.
“In publishing the articles of which she complains, The Times undertook its role in reflecting public debate on topical issues in broader society, which is separate and distinct from its role as her employer”.
“By bringing in the articles and witnesses from the trans community, Ms O’Donnell has done what she said she would do during the redundancy consultation: she has set about a campaign against The Times in its coverage of transgender issues. That is an improper use of the tribunal process.”
Asked why The Times chose not to mark Pride month as other organisations did, its deputy editor said that it would be inappropriate for the paper to be seen “in one camp or the other”.
O’Donnell is claiming that she was sidelined and denied pay rises and proper recognition for her role before eventually being made redundant when production of the Scottish edition was moved from Edinburgh to London. She alleges that, despite her seniority, she was not allowed to take on the role of acting Scottish editor while the incumbent underwent cancer treatment because The Times did not want a trans woman as its public face.
The Times denies that and says it supported her through her transition and subsequent periods of sickness. Her predecessors had worked from Wapping, but she had been allowed to transfer to Scotland to help with her personal life. The decision to move her role back to London was made to cut costs and increase efficiency and, had she agreed to move south, “she would still be in employment”.
But, White described the sacking as “the redundancy that makes no sense” and pointed to the lack of any paperwork showing the rationale. “Just as the Scottish Editor remains based in Scotland, so should the Scottish night editor… continuing the success of the Scottish edition and avoiding horrors like the ‘Put a kilt on it’ presentation to London sub-editors [a reference to a guide to Scottish coverage for England-based journalists].
The case could have huge implications for all news media, which would have to consider the feelings of staff from protected groups when planning coverage of issues affecting minorities.
“And all to remove an effective, hard-working, loyal, committed, transgender employee who did not fit in with The Times’ agenda of not being in the ‘T’ supportive ‘camp’.”
White also argues that O’Donnell’s protected characteristic of gender reassignment means there is a reverse burden of proof in the case – so that, rather than prove she suffered discrimination because of her trans status, it is for The Times to show that the events had nothing to do with it. The Times disagrees and says that the evidence put forward to support that argument is “hopelessly out of time”.
A ruling in the case is expected next month.