Gender neutral legal drafting –
not why, but why not?

On sitting down to write this blog, I was a little embarrassed. When you actually take the time to think about drafting legal documents in a way that is gender neutral, it seems to me that the question isn’t why do this, but why not?
 

Traditionally, masculine pronouns have been used by professionals throughout the legal sector when drafting. Corporate and commercial contracts usually use male pronouns to refer to any party, irrespective of their singular or collective genders. The word ‘chairman’ was, and still is, used in a variety of company agreements and constitutional documentation to describe the chair of a board or general meeting (I would note that I use ‘chairperson’ when drafting). Many letters start ‘Dear Sirs’.

This was recognised as being an outdated practice which reinforced historic gender-specific stereotypes by law makers in 2007. In fact, on International Women’s Day in 2007, Jack Straw, a former Leader of the House of Commons, delivered a written statement announcing that the Government had asked Parliamentary Counsel to henceforth adopt gender-neutral drafting.

Jack Straw’s announcement was the first time that the Government signalled a change in the use of masculine pronouns for the universal purpose of identifying individuals in legislation and legal drafting. Up until this point the Government had been relying upon and using principles laid out in section 6 of the Interpretation Act 1978 for legislative drafting, whereby any word importing the use of the masculine gender included the feminine, and vice versa.

This change hasn’t been reflected across the legal profession though. I remember very early in my career spending ages amending a contract because our client was a woman. I then felt foolish when I was told that was unnecessary and that I should have just relied on the quite standard provision in contracts which reads along the lines “Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders”, but it felt strange and a little rude when I knew my client was a woman.

Since 2007 it has been government policy to write legislation in gender-neutral language, so shouldn’t we as a profession make (arguably a late) but concerted effort to use language that does not solely refer to the male and female genders, in order to reflect our diverse society?

I think the answer must be, unequivocally, yes. Because, why wouldn’t we?

There is an argument that gender neutral drafting distorts the English language and that ‘they’ should not be used as a singular pronoun. My view is that our language is a living, ever-evolving thing, and should reflect how we communicate with one another and the society we live in. There is another argument that gender neutral drafting can create confusion or uncertainty in legal documents, which by their very nature need to be clear and unambiguous. Part of a lawyer’s craft however, is to produce clearly drafted documents which deal with all sorts of complexities, so it should not be beyond the profession to draft in a gender neutral way. The argument ‘this is the way it has always been done’ frankly holds no sway. This is the case especially in the context of the current global pandemic. Look how much has changed and how quickly it has changed – most of the legal profession has been working effectively from home for the last 12 weeks, causing an unprecedented shift in attitude to home and flexible working which is likely to transform the workplace as we know it. And we have adapted.

For anyone who wants to find out more, the Office of the Parliamentary Counsel, the Government Legal Department and InterLaw Diversity Forum have produced a Guide to Gender-Neutral Drafting. Its message is simple, avoid gender-specific pronouns and adjectives (‘he/him/his’) and avoid nouns that might appear to assume that a person of a particular gender will do a particular job or perform a particular role. Use the passive tense and a few more definitions if you need to.

I should say that gender neutral drafting is being used by many already within the profession. The challenge for law firms and busy fee earners is to always apply this consistently, in practice. This involves agreeing on a consistent approach across teams, across departments and across the profession and most likely an overhaul of any precedent banks.

So, my conclusion? Frankly, I’m embarrassed I haven’t paid more attention to this and will be aiming to draft in a gender neutral way going forward.

About the author

Roberta advises startup founders, angel investors and established businesses on a variety of corporate and commercial legal matters. She advises on early stage investments, share option schemes, shareholder agreements, share buybacks and company sales and acquisitions.