Written by Mary Sullivan, Legal Council at Octopus Ventures
The old ‘sticks and stones’ chant that we are taught as kids is wrong. Words matter. That chant is dismissive of the inherent power that words have and is, when you think about it, bad advice to be giving kids.
As a lawyer, I spend a lot of time thinking about words. In legal documents words can grant rights, take them away, create relationships, end them… the list is long. Even the absence of words can infer meaning in a contract. This is why lawyers pay meticulous attention to the words used in legal drafting. Yet, on an almost daily basis I encounter drafting that is littered with male pronouns. In 99% of those cases, use of ‘he/him’ is either unnecessary, or factually incorrect. It is too often that the careful and considered approach to drafting falls shy of the mighty pronoun – see a typical example:
The casual use of male pronouns in legal documents is problematic, as it reinforces (among other things):
- Bias on who the audience/reader is, or could be (e.g. Dear Sirs);
- Bias on who is eligible to fit within the subject matter (e.g. he shall, to him);
- Bias about gender roles (note, this includes bias that can be harmful against men too); and
- A binary view of gender itself (i.e. to the exclusion of gender diversity).
So, I maintain that sticks and stones will break my bones
but words will never hurt me and words can also hurt me.
These negative biases are not fixed by the complacent (or in my view, lazy) use of “male imports female” boilerplate clauses¹ (which also fail to acknowledge anyone non-binary, by the way). Our brains simply do not read a document this way, every ‘he/him’ reference imputes only the male gender, and therefore contributes to the harmful outcomes that biases cause. The kicker is this can be easily avoided through using ‘they/them’, ‘chair’, ‘keyperson’ etc.
Arguments against using ‘they/them’ often maintain these pronouns are intended only for plural references, making any other usage confusing or grammatically incorrect. Candidly, if you cannot draft a clause using ‘they/them’ in the singular, then you have no business holding the pen on a legal document. Lawyers pride themselves on perfectionism; we should hold both the profession and its work product to this higher standard.
I recognise that when updating a document to gender neutral language it can feel like a nuisance or nit-picking request, likely because the words being corrected are so small. I (or rather, we) need to remember that the impact of everyday biases is not small. When viewed through this lens, there is no satisfactory argument against using inclusive language. It is worth the effort to correct these practices, one
Chairman Chair at a time.
¹‘boilerplate’ is jargon for ‘standardised’ clauses found in legal documents (often to aid interpretation of a contract)