Binaries, Triplets and the Use of Gender Neutral Language
How do we assess the social and cultural significance the words we choose? And what is the impact of using gender-neutral language in our communications?
These questions were the subject of a spirited panel discussion at last week’s Manitoba Bar Association Midwinter Conference in Winnipeg. Dr. Jila Ghomeshi, syntactician and author of Grammar Matters and Sandra Petersson, Research Manager of the Alberta Law Reform Institute participated in the discussion moderated by Patricia Lane on how lawyers can reflect gender neutrality in their use of language.
Ms Lane referred to the business and practical reasons for using gender neutral language as outlined in her article The case for gender neutral language, (published in the July 2012 issue of CBA’s Touchstones) and directed the discussion instead toward the historical and cultural factors that account for the lack of gender neutrality in our modern discourse.
Sandra Petersson described how legal language evolved to include the ubiquitous triplets (e.g. give, devise and bequeath), with the effect of bloating legislation and ultimately, leading to the word-saving provisions now common in interpretive clauses declaring that use of words importing male persons, include female persons, and vice versa.
She advocated the following options for achieving gender neutrality in drafting documents:
- Using “he or she”
- Avoiding pronouns through repetition of the relevant noun
- Alternating between “he” and “she”
- Use of “they” as a 3rd person singular pronoun
Of course, there are advantages and disadvantages to each approach, leading some in the audience to throw up their hands in frustration and, I suspect, to continue on in their writing without regard to gender neutrality.
Ms Petersson pointed to the Department of Justice Drafting Guidelines as setting out the three principles to apply:
- Equality
- Accuracy
- Professionalism
These Guidelines provide a useful starting point in drafting documents with a view to achieving gender neutrality.
Jila Ghomeshi questioned whether gender neutrality is even achievable given social context and expectations. She pointed to the problem of binary categorization which pervades our use of language: male and female; ladies and gentlemen; master and mistress; sir and madam. Historically, the use of these parallel terms has developed in such a way as to reflect cultural devaluation of women and the feminine. For example, the terms madam or mistress no longer connote a feminine version of sir or master, but have taken on meanings that imply impropriety or lesser value.
Another issue with the use of binary categories in language is the reinforcement of an exclusionary either/or perspective: if you’re not one thing, you’re the other. This approach leaves no room for alternative classifications and can result in marginalization of those who don’t fit neatly within the two categories.
Ultimately, there were no neat answers provided to the questions from the audience as to how best address the issue of gender neutrality in legal communications. My takeaway was that I should strive to apply the principles of accuracy, equality and professionalism while taking into account readability, the audience for whom I am writing and the purpose or context of the communication.
The Canadian Bar Association’s Women Lawyers Forum has set up a committee to prepare a recommendation for general reference on gender-neutral language. It will be interesting to see their recommendations.
Thanks for this post, Karen, and welcome to Slaw! I’d be interested in knowing if and how these groups/discussions are taking into account those with non-normative/non-conforming gender identity and expression. The recommendations to use “he or she” or to alternate between “he” or “she” make it seem like this wasn’t a consideration…
When Ontario was preparing the Legislation Act, 2006, which includes an updated Interpretation Act, the use of the usual ‘masculine includes feminine’ provision was contested internally on the basis that it did not sufficiently accommodate people who did not identify with either sex.
No alternative was suggested, and the point was considered too difficult or too new to deal with at the time. The final wording was ‘gender-specific terms include both sexes…’.
One might wonder how much it matters in legislation, where the point is to ensure clarity of application of the law. How often would it be uncertain whether ‘he or she’ applies to a person, if that person had a flexible or uncertain gender identity – would not that person be covered one way or the other?
After all, the pronoun is used once the noun has been declared, and it’s the noun that is the subject or object of the legal obligation or right. Ideally the noun is not gender- or sex-specific if it does not have to be.
The Uniform Law Conference of Canada’s Drafting Conventions say this:
A more thorough discussion of gender-neutral language drafting in both languages appears in the Proceedings of the Uniform Law Conference for 1986, at pp. 90 – 123. (Note: the link goes to a PDF image of the volume, over 8 MB.)
Ontario’s Revised Statutes for 1990 changed all the province’s statutes to gender neutrality. Most if not all other legislative bodies in Canada have done likewise.
A key principle of almost any expository drafting is not to call attention to the writing itself. That means not to rub readers the wrong way by unsual or offensive words or phrases. This is a case for good grammar and conventional style, among other things.
But that rule can be hard to apply in times of transition, since some people may expect ‘he or she’ and others may object to it as cumbersome or politically correct. The drafter always has to know the audience being written for. Sometimes the drafter will also have to make a conscientious decision. The case for gender-neutral language has in my view been conclusively made for over 20 years, so the drafter’s ‘conscience’ should not have difficulty going that way.
No doubt the private sector may be behind the times in such matters, the legal profession being notoriously conservative (and fond of its precedents of ancient lineage), but the theory and the best practice have moved definitively on.
The solution, 0f course, is the acronymic pronoun “shit” – she him it.
OK, maybe not.
Sf writers have used neologisms such as “ser” for species and gender neutral pronouns or terms of hierarchy or status. If avoiding offence or implicit (actual or perceived) bias drives drafting, then a neologism seems a route to a solution.
English only distinguishes pronouns on a gender basis in the third person singular (eg. “he” and “she”). Unfortunately, the third person singular is the central character in most legal writing. The pronouns “he” and “she” are inadequate and may be offensive for persons who do not identify as male or female. In such cases the writer has the option of avoiding pronouns or using singular “they”. The key point is to think about whom you’re writing to or about. English lacks a universally accepted gender neutral singular pronoun. But a careful, thoughtful writer has ample tools to avoid inadvertently offending their reader.
It might be interesting to take a look at Wikipedia’s table of invented gender-neutral pronouns. There are many more than I’d imagined. Lawyers have been in there for a while: “thon” was proposed in 1884 by American lawyer Charles Crozat Converse, apparently.
There are many pleonasms that are constantly used by lawyers, “null and void”, “real and substantial”, etc., which could be dispensed with but “devise and bequeath” is not one of them. Real property was devised by will to the beneficiary; personal property was bequeathed. Both kinds of property may, of course, simply be left or given to the beneficiary.
Language and many other concepts and things are necessarily limited in the distinctions they can make (or ignore) and there is often nothing that can be done about it.
It is simply horrible to find the pronoun “they” used in the singular. I applaud the decision of the Ministry of the Attorney General in Ontario to use “he or she” and deplore the decision of the Department of Justice to use “they”.
Look that this ghastly language from the CBCA:
122. (1) Every director and officer of a corporation in exercising their powers and discharging their duties shall…
Since directors have to be individuals, “his or her” would be both accurate and correct.
Here’s another example:
91. A trustee in exercising their powers and discharging their duties shall …
Since the act has just provided that the trustee has to be a corporation, the correct pronoun would be “it.” Why on earth couldn’t the drafter have used it?
The Ontario act in contrast provides:
47. (1) A trustee in exercising the trustee’s powers and discharging the trustee’s duties shall …
The drafter has neatly avoided the pronoun trap.
I am embarrassed and ashamed when I have to refer a foreign lawyer to any statute of the Parliament Canada.
The practice now in much legal writing to replace “he” by “he or she”— dare I hope for a “she or he” sometime? — or by “she” alone — a practice I generally applaud — can, however, lead to serious problems if the use of those pronouns leads the author to misstate the question she or he is dealing with. In much legal writing, particularly in the commercial context, the correct pronoun is often “it” and an it is legally a much more complicated entity than either a she or a he and this complexity sometimes must not be ignored.
In my writing I generally use “it” unless the context requires either a “she” or a “he” (or both) or, of course, an occasional “they”.
A nice phrase to use is “that person”. It includes natural persons of every gender and identification, as well as all variety of corporate and similar entities.