Inclusivity and the necessary art of gender-neutrality

Last year, we noticed an increase in the number of client enquiries about gender-neutral documents. This reflects a wider discussion about sex and gender in society. While the UK’s national anthem changes according to the monarch, in 2018 Canada’s Senate approved altering the words of O Canada to make the English language version gender-neutral (replacing “in all thy sons command” with “in all of us command”).

Why do it? As the European Parliament states, the purpose of gender-neutral language is to avoid word choices which may be interpreted as biased, discriminatory or demeaning by implying that one sex or social gender is the norm. In other words: let’s be inclusive. Let’s not hurt people’s feelings. Let’s be nice to each other.

The only question is, then: how to do it?

What do clients mean by gender-neutral? Our experience is that some say gender-neutral, but on enquiry have turned out to mean “gender-specific”. In the old days it was almost certain that your senior employees would be men; a contract would be drafted accordingly, and then the ladies would be given a metaphorical pat on the head by including in the boilerplate the reassurance that references to the male gender should be interpreted to include the female. Those days are (or should be!) well and truly gone.

Others truly mean gender-neutral. This may be because they want to tailor their documents to an employee who prefers that, or simply to ensure that template documents can be rolled out across the workforce with the minimum of amendments.

Those who are non-binary (such as my favourite character in Billions, Taylor – and if you don’t know what I’m talking about, the next series has a breach of their post-termination restrictions as a major plot point, making it a must for employment lawyers who don’t want to switch off …) may prefer to use third person pronouns (they, their and them). Others may still have a personal preference for gendered pronouns, while others may simply say, “Hey, I don’t really mind.” Above all, it’s important to find out the person’s own preference and to recognise that simply because someone does not correct the use of he or she, doesn’t mean that they wouldn’t prefer something else. For some, they may not feel comfortable raising the subject.

Pronoun preference is not “one size fits all”, and what works for one non-binary person may not work for another. If your intent is to be inclusive, you must take account of the individual’s views.

When not referring to those who consider themselves to be non-binary, I dislike using the third person pronoun (they, their, and them) for a single known person. However, I am on the wrong side of history on that one. Respected dictionaries including the Oxford English dictionary and Merriam-Webster’s dictionary have recognised “they” as a singular pronoun as grammatically correct for years, and there are examples as far back as the 16th century of its use in that format.

My opinion is that it works when you do not know the identity of the person (“an employee must report any concerns to their line manager”) but not necessarily when you do (“Rachel should report any concerns to their line manager”, when you know that Rachel is female and wishes to be referred to as such). That leaves a grey area around a contract, for example, which defines Rachel as “the Employee” and then says “The Employee should report any concerns to their line manager”.

Of course, technology is your friend here. “Find and replace” can result in some obvious mistakes (“tshe Employee”, or “tthey Employer”). But the increasing automation of documents, including Practical Law’s FastDraft templates, make it easy to pick an option at the beginning of the process and create a bespoke contract.

After seeking customer feedback, Practical Law Employment has adopted “we” and “you” in their standard documents when referring to employer/company and employee.

Sadly for the employment lawyer and his, her or their targets, however, many clients don’t want to instruct us to produce individual contracts for every employee at every level and just need a template suitable for use for most new hires.

Gender-neutral drafting in practice means avoiding gender-specific pronouns, and avoiding nouns that might appear to assume that a person is of a particular gender (if you are still using “chairman”, for example, the 21st century would like a word. And it’s “chair”).

The Office of the Parliamentary Counsel has provided drafting guidance for those drafting legislation, which includes advice on gender-neutral drafting. It is government policy that primary legislation should be drafted in a gender-neutral way, so far as it is practicable to do so.

The alternative to using they, their and them is to use “he or she” and so on throughout. Those who do not use he or she are excluded from this formulation, and it can become clunky to refer repeatedly to both options.

Alternatively, a gender-neutral approach can be taken by repeating the employee’s name (“Rachel’s notice period”) or referring back to a defined term (“the Executive’s employment”).

A third option is to reword the document to avoid the need for a pronoun entirely. Sometimes that’s easier than others, so it may be necessary to use a combination of the above two techniques to avoid something that sounds too repetitive.

The final option open to lawyers, if not legislation-drafters, is the simplest: to move away from the third person entirely. After all, there aren’t many situations nowadays in which it is acceptable to talk about yourself in the third person without sounding like an anachronism or a pre-schooler with an imaginary friend. Why, then, do we go to this in legal documents involving people?

An employment contract is a relationship between an individual and another, who may also be an individual. We put personal service at the heart of the tests for employment status and we protect individuals from discrimination because of protected characteristics, so why not use “you”? It’s simple, it’s easy to understand, and it’s truly inclusive.

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