Lesson 9: Avoid gender words in your legal writing

I remember as a child reading this riddle (riddle: a statement deliberately worded to require careful thought to work out its meaning):

A father and son were involved in a terrible car accident. The father's injuries were so severe that they went to separate hospitals. Just as the son was about to undergo surgery, the surgeon said, "I can't operate on him; he's my son!" How is this possible?

Baffled, I looked up the answer: the surgeon was the boy's mother. The confusion arose because of my gender bias. I unconsciously assumed that surgeons are inevitably male. More than fifty years later, I wonder whether the riddle has the same effect, although I have to believe it does. Were you confused, or perhaps you have an alternative answer: the surgeon was the father's male partner. The riddle now reveals two possible assumptions: that all surgeons are male and that all children have two (male and female) parents.

As a lawyer using English as a second language, it is very easy to fall into the trap of gender bias when writing or speaking. In that trap, you will find many first-language lawyers too. However, we should all strive to write and not cause offence.

Lawyers have often excused themselves by referring to statutes such as:

Section 6 of the Interpretation Act 1978, Gender and number.

In any Act, unless the contrary intention appears,—

(a) words importing the masculine gender include the feminine;

(b) words importing the feminine gender include the masculine;

["Importing" is an ancient word that means indicate or signify and you should not use it except to refer to bringing goods into a country].

This is no excuse: look at the date of the statute.

Avoid using single-gender words

When a jury returns a verdict, a person is appointed to speak on behalf of the jurors. For centuries this person was called a foreman, which speaks of a past in which only men could act as a juror. There is a recent story in which a judge was surprised that a male was permanently appointed to speak, even though the jury comprised both men and women, until he realised that he used the words, "Choose from amongst yourselves someone to act as a foreman". Women were selected when the judge changed that to foreperson.

Almost all words ending in -man signify a male in that position (policeman, draftsman, fireman, postman, chairman), and it is not always possible, or tidy, to swap 'man' for 'person'. Use police officer in place of policeman, chair in place of chairman, firefighter in place of fireman, postal worker in place of postman, and so on. It is entirely acceptable to use drafter (or even writer or author) instead of draftsman, but sometimes it is better to avoid using the noun.

Redraft to avoid the problem

The verb may often be used in place of the noun.

It is not clear what the draftsman intended by his use of the word “likely”

can be rewritten as

The drafting made it unclear what was intended by the use of the word "likely".

Here are some more examples where drafting gets us around the problem.

Clients are entitled to assume that their lawyer keeps his legal knowledge up to date

becomes

Clients are entitled to assume that their lawyer's legal knowledge is kept up to date

And

The defendant must phone the court as soon as the notice is received by him

becomes

The defendant must phone the court as soon as the notice is received (simply delete by him)

And

The lawyer's primary duty is to look after the interests of his client.

becomes

The lawyer's primary duty is to look after the interests of the client.

And

‌If a lawyer cannot explain the law of theft to you simply and clearly he must be sacked immediately.

becomes

A lawyer who cannot explain the law of theft to you simply and clearly must be sacked immediately

There is no word in English to use in place of he or she when using the third person singular. The third person plural is neutral: they, likewise the possessive their. It is common to see the substitute form s/he but if you are reading it (aloud or in your head), how do you pronounce s/he? I suspect that people say she or he anyway. The use of the plural form they is becoming increasingly acceptable. So, in the last example, it is more natural to say:

If a lawyer cannot explain the law of theft to you simply and clearly they must be sacked immediately.

even though 'lawyer' is singular. Also, the increasing use of they and their in place of he or she respects people who do not identify as either male or female.

When I first qualified as a solicitor, it was considered proper to write a letter to a firm of solicitors and start with Dear Sirs, even though the firm that might have male and female partners. A good practice now is to use Dear Sir or Madam.

‌The sentences below have been written to remove the gender bias. Click on the example sentence to see a suggested answer.