Gender Neutral Language

Introduction

Gender neutrality is important when writing about people because it is more accurate — not to mention respectful — and is consistent with the values of equality recognized, for example, in the Canadian Charter of Rights and Freedoms. It is also professionally responsible and is mandated by the Federal Plan for Gender Equality, which was approved by the Cabinet and presented to the Fourth United Nations World Conference on Women in 1995.

Recommendations

The need to deal equally with men and women highlights the desirability of drafting using gender-neutral language. Laws that exclude references to the female gender do not promote gender equality. For this reason, gender-specific language should not be used in legislation. Gender-specific words should be replaced with gender-neutral words that have the same meaning. In addition, the following writing techniques should be considered to avoid using a gender-specific pronoun:

1. use the singular "they" and its other grammatical forms ("them", "themselves" and "their") to refer to indefinite pronouns and singular nouns;
2. replace the masculine pronoun with an article;
3. use both pronouns "he" and "she";
4. use the plural;
5. use a neutral word or phrase such as "person", "any person", "every person" or "no person";
6. repeat the noun;
7. rewrite the sentence in order to eliminate the pronoun completely.

Discussion

In the past, the masculine pronoun was commonly used in the English language to signify the non-specific "he or she". The Interpretation Act provides that references to female persons include male persons and vice versa. Subsection 33(1) reads:

33. (1) Words importing female persons include male persons and corporations and words importing male persons include female persons and corporations.

It is now generally well-accepted that gender-specific language should only be used for references to persons of one gender or the other, for example in provisions that deal with women taking maternity leave. In all other cases, it should be avoided.

Drafting Techniques

There are a number of ways to avoid using gender-specific language. Many gender-specific terms may be replaced with gender-neutral terms that have the same meaning. Of course, current drafting practices already require that drafters select gender-neutral terms over gender-specific terms. For example:

Note that the pronoun(s) that follow may also need to be changed when any of the above suggestions are used.

There are also a number of writing techniques that may be used to avoid gender-specific pronouns. The technique that will be most appropriate in a particular case will depend on the sentence. What is effective in one situation may not be useful in another. For this reason, the options below have not been listed in any order of preference.

1. Use "they" and its other grammatical forms ("them", "themselves" and "their") to refer to singular indefinite nouns:

Instead of:
Every taxpayer shall file his tax return no later than April 30 of the year following the year in which he earned the income on which he is paying taxes.

Consider this:
Every taxpayer shall file their tax return no later than April 30 of the year following the year in which they earned the income on which they are paying taxes.

For a more detailed discussion of this option, see Singular 'They' in this Part.

2. Replace a possessive pronoun with a definite article:

Instead of:
If a notice has been requested under paragraph (1)(b), but the Commissioner receives no such notice, the Commissioner shall so advise the complainant in his report under subsection (2).

Consider this:
If a notice has been requested under paragraph (1)(b), but the Commissioner does not receive the notice, the Commissioner shall so advise the complainant in the report under subsection (2).

In this case, subsection (2) says that the Commissioner issues the report so it is not necessary to refer to "his" report.

3. Use both pronouns "he" and "she":

Instead of:
This Part applies despite any other law or any custom, contract or arrangement, but nothing in this Part affects any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.

Consider this:
This Part applies despite any other law or any custom, contract or arrangement, but nothing in this Part affects any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his or her rights or benefits under this Part.

However, "he or she" should not be used if an entity is included in the noun that is followed by the pronouns.

4. Use the plural:

Instead of:
A person elected under subsection (1) holds office until another is elected to replace him, at the first quarterly meeting of the next year or until he is removed from office or vacates it under the by-laws of the corporation.

Consider this:
The persons elected under subsection (1) hold office until others are elected to replace them, at the first quarterly meeting of the next year or until they are removed from office or vacate it under the by-laws of the corporation.

While the use of the singular is usually preferred, the plural may be used to avoid a gender-specific pronoun if its use does not create ambiguity.

5. Use a neutral word or phrase such as "person", "any person", "every person" or "no person":

Instead of:
After the term of a member ends, he may carry out the duties of a member in respect of a matter that was referred to the Commission under subsection 26(4) while he was a member.

The following would avoid gender specificity:
After a person's term as a member ends, the person may carry out any duties of a member in respect of a matter that was referred to the Commission under subsection 26(4) while the person was a member.

In the above example, the use of the word "person" is a useful technique to avoid the pronoun "he". (It would not be appropriate in this case to repeat the noun "member" since the provision deals with the situation where the person is no longer a member because their term has ended.)

6. Repeat the noun:

Instead of:
If a judge is satisfied that it is reasonable in the circumstances to do so, he must issue a warrant.

Consider this:
If a judge is satisfied that it is reasonable in the circumstances to do so, the judge must issue a warrant.

This technique must be used with caution since it may become too cumbersome if the noun must be repeated several times

7. Rewriting the sentence to completely eliminate the pronoun

Instead of:
A fisheries officer may issue a fishing licence and he may register the licence if he considers that the applicant has met the licence requirements.

Consider this:
A fisheries officer may issue and register a licence after determining that the applicant has met the licence requirements.

When drafting amendments that would otherwise leave gender-specific language in an amended Act or regulation, it should be recommended to the client that the entire amended Act or regulation be made gender neutral.

However, in Acts other factors may come into play. For example, it may take more time to draft the amendments, they may substantially lengthen the amending Act or the provisions to be amended may involve additional contentious issues that would not otherwise be raised. To deal with this, consider amending particular words instead of whole provisions. For example,

X. The English version of the Act is amended by replacing the word "his" with the word "their" in the following provisions:
(a) …

As concerns regulations, similar factors may come into play. In addition, amendments that are being made solely for the purpose of achieving gender neutrality may also involve questions of whether there is statutory authority for the provisions that are to be amended. Addressing issues of regulation-making authority will take extra time and may necessitate the preparation of a written legal opinion. As with Acts, pinpoint amendments to a number of regulatory provisions can be made using a single amending clause. The technique is substantially the same as that used for:

X. The English version of the Regulations is amended by replacing the word "his" with the word "their" in the following provisions:
(a)…

However, before using this technique, the drafter must carefully review each of the relevant provisions to ensure that the substitution is appropriate throughout the legislation. If a gender-specific reference has been used in various provisions for a particular reason, a single amending clause would not be effective. One example of this is the definition of "war" in subsection 2(1) of the Merchant Navy Veteran and Civilian War-related Benefits Act, R.S., 1985, c. C-31. It reads as follows:

"War" means the war waged by His Majesty's Allies against Germany and Germany's Allies, which for the purposes of this Act shall be deemed to have commenced on September 1, 1939 and to have terminated on April 1, 1947.

Another obvious example in which a single amending clause would be inappropriate is where an Act or regulation contains some provisions that have been enacted using gender-specific language, while others that have been enacted at a later date contain gender-neutral language. This technique would not be useful in such cases since the result would be that references to "his or her" would become references to "their or her".

Further Reading

Arthur Close, "Gender-Free Legal Writing", British Columbia Law Institute (03/09/99), http://www.bcli.org/pages/projects/genderfree/genderfree.html.

Robert D. Eagleson, "A Singular Use of 'They'", (1994-95) The Scribes Journal of Legal Writing 87.

Rosalie Maggio, The Nonsexist Word Finder: A Dictionary of Gender-Free Usage (New York: ORYX Press, 1987).

Mary Jane Mossman, "Use of Non-Discriminatory Language in Law" (1995) International Legal Practitioner 1.

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