On January 17, the Oversight Board reversed Meta’s original decision to remove two Instagram posts depicting a couple of transgender and non-binary individuals topless with covered nipples. The image captions discussed transgender health issues and mentioned that one of the people portrayed in the post would undergo a mastectomy, a surgical procedure to remove the mammary gland, and was raising funds for the process.

The images were reported by users and referred for human review, which deemed them to be in violation. The American couple appealed the removal decisions, but Meta decided to uphold the removal, leading the account owners to submit the case to the Oversight Board.

In its decision, the Board found that removing the posts is not in line with Meta’s values, norms, and human rights standards. It also criticized the lack of precision in the nudity policies and how they rely on a binary view of gender, disregarding intersex, non-binary, and transgender individuals.Among the arguments presented in the decision, the contribution made by InternetLab was mentioned which, in September 2022, argued that the interpretation of Meta’s content moderation policies should not presuppose the sexualization of trans and non-binary bodies. It pointed out successive cases of removal of photos of trans and non-binary individuals based on Meta’s “Sexual Solicitation Policy,” while similar images of cisgender bodies were not removed. These cases suggest a tendency to sexualize non-cisgender bodies.

Based on the decision, the Oversight Board overturned the removal of the posts and recommended that Meta: (i) establish clear, objective criteria in line with human rights for its Adult Nudity and Sexual Activity Community Policy without discrimination based on sex or gender; (ii) provide more details to the public about the criteria used for removing this type of content; and (iii) review its guidance to moderators on the Adult Nudity and Sexual Activity Community Policy to reflect the general rules about the policy more accurately, as this would help reduce enforcement errors.

The decision is available in English. Read InternetLab’s contribution to the case in Portuguese and English.