Both posts came to the Oversight Board’s attention after being reshared by conservative activist Chaya Raichik, who operates several controversial social media accounts known as Libs of TikTok, according to four people familiar with the matter. Raichik’s social media accounts have become a fixture in American politics, and she has amassed an audience of millions while routinely attacking the cultural acceptance of trans people. Libs of TikTok has been blamed for sparking threats at hospitals and encouraging restrictions on LGBTQ+ -related content in schools. Raichik said the allegations about hospitals are false.
The Oversight Board’s ruling is the first major test of Meta’s latest efforts to rebrand itself for a MAGA-dominated Washington. Meta CEO Mark Zuckerberg pledged in January to take the company back to its roots by “restoring free expression” after years of what he said were too many restrictions on speech. That same month, Meta weakened its hate-speech rules, offering users greater freedom to call for gender-based restrictions in bathrooms, sports and specific schools, and to characterise gay people as mentally ill.
The Oversight Board as a whole said the posts didn’t violate Meta’s new or old hate-speech rules because they did not directly attack people based on their gender identity. A minority on the board argued that the posts would have violated Meta’s old hate-speech rules before the changes in January.
The board on Wednesday also issued a broader critique of Meta’s latest policy changes, including calling on the social media giant to improve how it enforces violations of its bullying and harassment rules.
The Oversight Board planned to release the gender identity case ruling, among several others, next week but moved up the announcement to Wednesday after a Washington Post reporter requested comment this week on the pending ruling. Ayobami Olugbemiga, a spokesperson for the Oversight Board, said the group would offer a comment for this report by the end of Tuesday (local time) but did not.
Meta spokesman Corey Chambliss said in a statement on Wednesday the company appreciates “the work of the Oversight Board” and welcomes its decisions. Clegg didn’t respond to a request for comment.
Even before Wednesday’s ruling, the board’s judgment on the gender identity cases had become a lightning rod among social media policy watchers, attracting scores of comments about how the group should rule, including from LGTBQ+ advocacy groups and conservative critics. The ruling could also affect how other internet platforms draw the line about what is considered acceptable speech amid a fierce global debate about the rights of trans people.
“This ruling tells LGBTQ people all we need to know about Meta’s attitude towards its LGBTQ users - anti-LGBTQ hate, and especially anti-trans hate is welcome on Meta’s platforms,” Sarah Kate Ellis, CEO of the LGBTQ+ activist group GLAAD, said in a statement. “This is not ‘free speech,’ this is harassment that dehumanises a vulnerable group of people.”
Critics argue that leaving the content up could open the door to more harmful rhetoric about trans people, at a time when the LGBTQ+ community is facing rising harassment and legislative efforts to limit trans people’s ability to use bathrooms or compete in sports competitions in accordance with their gender identity. Meanwhile, conservative free-speech advocates argue that people should be allowed to criticise the rights of trans people - a position that polls show is gaining popularity among the general public in the United States.
“This isn’t hate speech,” said Beth Parlato, a senior legal adviser for Independent Women’s Law Centre, a conservative group that advocates for restrictions on trans people’s participation in sports and their presence in bathrooms and locker rooms that match their gender identity.
“More than half of the country believes there are two sexes - male and female - and we should not be quieted or censored from discussing any issues that involve transgenders,” she added.
The Oversight Board is undergoing its own reinvention, five years after it launched as an experimental way for Meta to offload contentious content-moderation decisions to an independent party. Critics of the board, both inside and outside the company, have alleged that it has moved too slowly to issue decisions, failed to substantially change the company’s approach to moderation, and operated at too hefty a price tag.
Some have also characterised the Oversight Board as too liberal, applying pressure that incentivised the group to take up the gender identity cases in the first place, one of the people said.
The 21-member Oversight Board, which is funded by the tech company but operates independently, includes a global roster of well-known public figures in media, politics, civil society and academia. Its members include former Danish prime minister Helle Thorning-Schmidt, University of Notre Dame professor Paolo Carozza, Prospect magazine editor Alan Rusbridger, Nobel Peace Prize Laureate Tawakkol Karman and Cato Institute Vice President John Samples.
The Oversight Board reviewed a Facebook post that shared a video in which a woman films herself confronting a transgender woman for using the women’s bathroom, according to the board’s description of the case. The woman asked the trans woman why she was using the women’s bathroom. The board is also reviewing an Instagram post sharing a video of a transgender girl winning a sports competition in the United States, with some spectators expressing disapproval of the result. The post refers to the trans athlete as a boy, according to the board.
Both posts, which were shared last year, were reported by users as violating the company’s hate speech and bullying and harassment policies. But Meta left the posts up, determining that the videos or posts didn’t specifically call for the exclusion of trans people, according to one of the people and a description of the case from the Oversight Board. At least two of the users who originally reported the content appealed that decision to the board.
Meta’s old hate-speech or anti-harassment rules banned users from calling for the political, social or economic exclusion of people based on characteristics such as race, gender, or sexual orientation. Meta’s new rules give users the freedom to say certain jobs, such as the military or teaching, should be limited by gender. Social media posters are also free under the new rules to say they support denying access to certain spaces on the basis of gender. Meta’s rules never blocked users from “misgendering” public figures by using someone’s non-preferred pronouns.
Meta initially told the Oversight Board that the posts didn’t break the rules but that even if they did, they would be considered exempt under the company’s newsworthiness allowance. Later, Meta reviewed its new hate-speech rules with the Oversight Board, whose members took them into consideration for its ruling, two of the people said.
Since the board took up the cases in August, activists on both sides of the issue have weighed in. GLAAD argued that the posts should be considered a violation of the company’s hate-speech rules because misgendering someone is equivalent to “denying [the] existence” of people based on a sensitive characteristic. By contrast, the Independent Women’s Forum argued that allowing the contested videos to be posted is a crucial tool for women to be able to advocate against having trans women, whom they call men, use women-only spaces.
For now, Meta is siding with the latter. Zuckerberg told podcaster Joe Rogan in January that one reason the company changed its rules is because then-defence secretary nominee Pete Hegseth’s previous criticism of policies allowing women in combat would probably be debated in his confirmation hearing.
“If it’s okay to say on the floor of Congress, you should probably be able to debate it on social media,” Zuckerberg said.
