Legistics Gender-neutral Language
In the process of being updated
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.
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:
- use the singular "they" and its other grammatical forms ("them", "themselves" and "their") to refer to indefinite pronouns and singular nouns;
- replace the masculine pronoun with an article;
- use both pronouns "he" and "she";
- use the plural;
- use a neutral word or phrase such as "person", "any person", "every person" or "no person";
- repeat the noun;
- rewrite the sentence in order to eliminate the pronoun completely.
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.
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:
|chairman||chairperson (“chair” is rarely used in federal Statutes)|
|businessman||business executive/entrepreneur/business person|
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
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.
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
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).
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”
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.
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
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.
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”
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
If a judge is satisfied that it is reasonable in the circumstances to do so, he must issue a warrant.
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
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.
A fisheries officer may issue and register a licence after determining that the applicant has met the licence requirements.
Guide on Equity, Diversity and Inclusion Terminology 2022 (online: https://www.noslangues-ourlanguages.gc.ca/en/publications/equite-diversite-inclusion-equity-diversity-inclusion-eng?view_mode=bilingual)
Inclusionary: A collection of gender-inclusive solutions 2022 (online: https://www.noslangues-ourlanguages.gc.ca/en/writing-tips-plus/inclusionary)
Inclusive writing - Guidelines and resources 2022 (online: https://www.noslangues-ourlanguages.gc.ca/en/writing-tips-plus/inclusive-writing-guidelines-resources)
Policy Direction to Modernize the Government of Canada’s Sex and Gender Information Practices 2018 (online: https://www.canada.ca/en/treasury-board-secretariat/corporate/reports/summary-modernizing-info-sex-gender.html#h-6)
Arthur Close, “Gender-Free Legal Writing”, British Columbia Law Institute (03/09/99), https://www.bcli.org/sites/default/files/GenderFree.pdf.
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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