Gender-inclusive Language

Introduction

Most legislative provisions are meant to apply broadly to all persons or to specific classes of persons without distinction based on sex, gender identity or gender expression. The traditional practice for Canadian legislative drafting in English was to apply the default masculine rule when referring to persons, which meant that words that ostensibly refer to men only – such as “fireman” or the pronoun “he” – were used to refer collectively to persons of any gender.Footnote 1 Over time, the default masculine rule has given way to drafting practices that limit the use of words marked for gender to contexts in which their use reflects the legislative intention, which helps ensure that legislative provisions use language that is inclusive of the diverse readers to whom they may apply. A gender-inclusive approach to legislative drafting is also consistent with the values of equality recognized, for example, in the Canadian Charter of Rights and Freedoms, as well as with government policies that seek to promote gender equalityFootnote 2 and the drafting conventions of the Uniform Law Conference of Canada.Footnote 3

This article sets out recommended techniques for gender-inclusive legislative drafting in English and provides some historical background on gender in English legislative language. It also includes many examples of the recommended techniques in use and describes their potential pitfalls.

(See the article Rédaction législative inclusive in the Guide fédéral de jurilinguistique législative française for recommended techniques in French.)

Recommendations

  1. When referring, without distinction based on sex, gender identity or gender expression, to all persons, a class of persons or an unspecified person who occupies a particular office or position
    1. use generic descriptors, titles and other words that are gender-inclusive; and
    2. avoid the pronouns “he” and “she” (including the doublet “he or she”) and their other grammatical forms by
      1. repeating the noun,
      2. using the singular, gender-neutral pronoun “they” and its other grammatical forms,
      3. replacing possessive pronouns with a definite or indefinite article,
      4. using the plural, if the context allows, or
      5. structuring the sentence so that the pronoun is not required.
  2. When referring to a specific, identifiable individual, use the pronouns, titles and other gendered terms that they would use, if known. If their pronouns are not known, consider repeating their name or title or structuring the sentence so that no pronoun is required.

Discussion and Examples

Gender in legislation – history

In common law jurisdictions, the default masculine rule has been applied in legislative drafting in English since at least the mid-1800s. Earlier legislation often differentiated references to men and women by using the pronouns “he” and “she” separately and sometimes used the doublet “he or she” to indicate that rules applied to both men and women.Footnote 4 The Parliament of Upper Canada enshrined the default masculine rule in 1837 when it became the first common law jurisdiction to enact a general interpretation statute. That statute provided that in any Act “every word importing the masculine gender only, shall extend and be applied to a female as well as to a male”.Footnote 5 Federal legislation in Canada has included a similar rule since 1867. The modern version is set out in subsection 33(1) of the Interpretation Act. Unlike its 1837 counterpart in Upper Canada, it allows for the possibility of either a default masculine or a default feminine rule:

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

Genre grammatical
33 (1) Le masculin ou le féminin s’applique, le cas échéant, aux personnes physiques de l’un ou l’autre sexe et aux personnes morales.

While the Interpretation Act creates a form of gender-neutrality from a legal perspective and helps resolve ambiguity as to the scope of gender-specific terms in existing legislation, the use of gender-inclusive language when drafting new legislation and amending existing legislation results in legislative language that is clearer on its face and reflects a conception of gender that is broader than the male-female binary expressed by the Interpretation Act. It also means that readers of legislation, including judges, do not have to rely as much on interpretive rules set out in separate texts.Footnote 6

Referring to unspecified persons

Legislation is full of references to unspecified persons that are meant to include persons of any gender. Despite its roots as a language with pervasive grammatical and social markers of gender,Footnote 7 modern English has retained few such markers. The exceptions that are most relevant to legislative drafting are the frequently used third-person singular pronouns “he” and “she” and various gender-specific terms for broad classes of persons (such as “men” or “sisters”) and for occupations and office holders (such as “stewardess” or “Chairman”). The dominant practice in English legislative drafting is to refer to unspecified persons using generic singular nouns. For example, phrases such as “a person”, “every person” and “anyone” are used to refer collectively to all persons while more precise descriptors such as “a licence holder”, “each employee”, “a manufacturer” and “a judge of a Superior Court” are used to refer to a class of persons. In addition, titles such as “the Commissioner”, “the Minister”, “the Chief Justice of the Federal Court” and “the chief mate” (of a vessel) are used to refer not to a specific individual but to whichever person may occupy the office or position at a given time. In these cases, gender-inclusive drafting involves using words and phrases that are not marked for gender and paying particular attention to pronouns.

The techniques set out earlier under Recommendation (1) are restated below, accompanied by examples and some further discussion.

  1. Use generic descriptors, titles and other words that are gender-inclusive

    Most of the descriptors and titles used in formal writing in English are already gender-inclusive. Non-inclusive terms have gradually fallen out of use and been replaced by more inclusive alternatives. Gender-specific nouns such as “woman”, “man”, “sister” and “son”, along with the pronouns “he” and “she”, may of course be used in legislation when the intention is to refer to persons of a particular sex, gender identity or gender expression. For example, there are various references to “women” in the Pay Equity Act, the Employment Equity Act and the Department for Women and Gender Equality Act, whose purposes include redressing discrimination experienced by women. However, most references to persons in federal legislation are not meant to be gender-specific, so unmarked nouns such as “person”, “individual”, “sibling” and “child” will better reflect the legislative intent in most cases.

    Gender-specific occupational names and titles were commonly used in earlier legislation but have mostly been replaced by more inclusive terms. The following chart provides some examples of occupational names and titles that should be avoided along with gender-inclusive alternatives.Footnote 8

    Avoid Use
    fireman firefighter
    policeman police officer
    foreman supervisor
    mailman letter carrier
    stewardess, steward flight attendant
    fisherman fisher
    seaman sailorFootnote 9
    chairman chairperson or chairFootnote 10
    ombudsman ombuds, ombud or ombudspersonFootnote 11

    Note: In the case of an official title, legislation should reflect the actual title used by the relevant organization or established by existing legislation, even if it is not inclusive. However, non-inclusive titles should be replaced if there is an opportunity to do so.

  2. Avoid the pronouns “he” and “she” (including the doublet “he or she”) and their other grammatical forms by

    1. repeating the noun

      An easy way to avoid gendered pronouns is to simply repeat the noun. One important advantage of this technique is that there is no ambiguity of reference.

      Example 1. The Minister must refuse to issue a permit if the Minister has reasonable grounds to believe that false or misleading information was provided in the application for the permit.

      Example 2. The Governor in Council may make any orders or regulations that the Governor in Council considers necessary for the purpose of carrying out the Agreement.Footnote 12

      Example 3. 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.Footnote 13

    2. using the singular, gender-neutral pronoun “they” and its other grammatical formsFootnote 14

      Pronouns are ubiquitous in everyday speech and the constant repetition of nouns can sometimes result in awkward phrasing. Pronouns therefore remain an important tool for the drafting of plain-language legislation that reads well. The third-person pronoun “they” – as well as its other forms “them”, “their”, “theirs”, “themselves” and “themself” – may be used to refer to an unspecified person in the singular without reference to the person’s gender.Footnote 15

      Example 4. A person must, in their application, attest that they meet each of the eligibility conditions referred to in paragraphs 3(1)(a) to (n).

      Example 5. The Minister may refuse to issue a permit, or may amend, suspend or cancel a permit, if they are of the opinion that the public interest warrants it.

      Beware of ambiguity: Because the pronoun “they” can be used to refer to persons in both the singular and plural as well as to things in the plural, ambiguity may arise as to what “they” refers to in some contexts. If the referent is not clear, repeat the noun or restructure the sentence.

      Example 6. Ambiguous “they”: The medical examiner may issue the certificate to the applicant if they have met the requirements set out in section 27.

      In this example, it is not immediately clear who has to have met the requirements of section 27, the medical examiner or the applicant. Although the content of section 27 likely resolves the ambiguity, it is clearer to replace “they have” with “the medical examiner has” or “the applicant has”, as the case may be.

      Example 7. Ambiguous “their”: The Commissioner or a person acting under their direction in carrying out their duties under the Act must not disclose any information relating to an investigation.

      In this example, the first “their” logically refers to the “Commissioner”, but the second “their” is ambiguous. Is the person carrying out their own duties under the direction of the Commissioner or are they carrying out the Commissioner’s duties? It is better to repeat the noun each time for clarity:

      The Commissioner or a person acting under the Commissioner’s direction in carrying out the Commissioner’s duties under the Act must not disclose any information relating to an investigation.

      Note on themselves/themself: Avoid using the emphatic and reflexive pronouns “themselves” and “themself” to refer to an unspecified person in the singular. Both forms are attested by the Oxford English Dictionary as possible singular pronouns for emphatic and reflexive uses.Footnote 16 However, “themselves” reads more naturally as a plural pronoun and may sound odd in the singular while “themself” is less well established in usage and often considered non-standard.Footnote 17 Possible solutions include changing the verb to one that does not require a reflexive pronoun or, if the context allows, making the noun plural to go with a plural “themselves”. If no solution is available, choose the form that reads most naturally in the context. For example, “themselves” may sound more natural if it is placed farther away from the noun that it refers to or after another form of “they” that refers to the same noun. In some contexts, the addition of “every” or “each” before a singular noun may also imply a collective plural that reads well with “themselves”.

      Example 8. The employer must ensure that … each employee participates, at least once every six months, in a drill that requires them to board a lifeboat while wearing an immersion suit and to secure themselves on a seat.

    3. replacing possessive pronouns with a definite or indefinite article

      The possessive pronouns “his” and “her” (and the doublet “his or her”) can often be replaced with the definite article “the” or the indefinite article “a” (or “an”) without any loss of meaning. The choice of definite or indefinite article depends on the context.

      Example 9. Original wording: The Chief Commissioner may make a report on any claim on the basis of the information then available to the Commission if, in his opinion, postponement of his report in respect of the claim would result in undue delay.

      More inclusive wording: The Chief Commissioner may make a report on any claim on the basis of the information then available to the Commission if, in the Chief Commissioner’s opinion, postponement of the report in respect of the claim would result in undue delay.Footnote 18

      Example 10. Original wording: A judge of the court of appeal may release an appellant from custody pending the determination of his appeal if … (c) in the case of an appeal or application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served his notice of appeal or, if leave is required, his application for leave to appeal.

      More inclusive wording: A judge of the court of appeal may release an appellant from custody pending the determination of the appeal if … (c) in the case of an appeal or application for leave to appeal to the Supreme Court of Canada, the appellant has filed and served a notice of appeal or, if leave is required, an application for leave to appeal.

    4. using the plural, if the context allows

      While the standard practice for Canadian legislative drafting in English is to refer to unspecified persons in the singular in most contexts, use of the plural is sometimes appropriate. In the plural, any pronoun will necessarily be a form of “they” and therefore always be gender-inclusive.

      Example 11. Original wording: These Regulations do not apply to a wildlife officer who is engaged in the performance of his duties.

      More inclusive wording: These Regulations do not apply to wildlife officers who are engaged in the performance of their duties.

    5. structuring the sentence so that the pronoun is not required

      There are many ways to structure sentences to avoid using a form of “he” or “she”. Below are some potential solutions for common phrases seen in legislative texts.

      Replace or shorten a subordinate adverbial clause: Legislative provisions often feature subordinate adverbial clauses (especially “if” clauses) that have a pronoun as their grammatical subject. In many cases, the subordinate clause can be replaced with a structure that does not require a gendered pronoun or modified to make the grammatical subject implicit.

      Example 12. Original wording: A person is not eligible to be appointed a returning officer if he is undergoing a term of imprisonment as a result of having been convicted of an indictable offence.

      More inclusive wording: A person who is undergoing a term of imprisonment as a result of having been convicted of an indictable offence is not eligible to be appointed a returning officer.

      Example 13. Original wording: The Minister may order the owner to do any other thing with respect to the work if he or she is satisfied that it is necessary in the circumstances.

      More inclusive wording: The Minister may, if satisfied that it is necessary in the circumstances, order the owner to do any other thing with respect to the work.Footnote 19

      Example 14. Original wording: A licence holder must — if his licence authorizes controlled activities in respect of a prescribed human pathogen or prescribed toxin — notify the Minister before he makes any change to the physical structure of the facility that could affect biocontainment.

      More inclusive wording: A licence holder must — if the licence authorizes controlled activities in respect of a prescribed human pathogen or prescribed toxin — notify the Minister before making any change to the physical structure of the facility that could affect biocontainment.Footnote 20

      Use the passive voice: While the active voice is generally preferred, the passive voice is widely used in formal writing in English. It works best in contexts in which it is not necessary to the state the active subject of the verb, such as when the subject is implicit given the content of the provision itself or of surrounding provisions.

      Example 15. Original wording: If the applicant is served with a notice under subsection 26(3) before the day on which the application is submitted, he must include a copy of the notice in the application.

      More inclusive wording: If the applicant is served with a notice under subsection 26(3) before the day on which the application is submitted, a copy of the notice must be included in the application.Footnote 21

      Remove the reference to the person: A reference to an inanimate thing is sometimes sufficient to evoke the person involved, especially when a provision is read within the context established by the surrounding provisions.

      Example 16. Original wording: Every applicant must provide, in his application, an outline of the proposed project or activity in reasonable scope and detail.

      More inclusive wording: Every application must include an outline of the proposed project or activity in reasonable scope and detail.

      Caution: When restructuring sentences to avoid the use of pronouns, always assess the restructured sentence for ambiguity as to who is responsible for carrying out the action of the verbs, especially if the sentence structure is complicated or more than one person is mentioned in other parts of the sentence. The placement of phrases within the larger sentence is often the key to resolving ambiguity, or one of the other recommended techniques may provide a better solution.

Referring to a specific individual

When a text mentions a specific, identifiable person, an inclusive approach to drafting is less about choosing inclusive language than about showing respect for the person by using the pronouns, titles and other terms that they would use, if known. References to specific individuals are rare in legislation but do occur, particularly in proclamations, orders and preambles. Individuals mentioned may include the current monarch or Governor General, a person who is being appointed to a public office by Order in Council or a person to whom a tax or penalty is remitted under a remission order.

Example 17. We, the Right Honourable Mary May Simon, Governor General of Canada … proclaim that His Royal Highness Prince Charles Philip Arthur George is now …. Charles the Third, by the Grace of God of the United Kingdom, Canada and His other Realms and Territories King ….

Example 18. Her Excellency the Governor General in Council … re-appoints Aisha Njeri, of Ottawa, Ontario, as a special adviser to the Minister of Foreign Affairs, to serve as Ambassador for Women, Peace and Security … and fixes her remuneration ….

References to specific individuals do occasionally occur in the body of an Act or regulation.

Example 19. 56.1 (1) … Madam JusticeFootnote 22 Louise Arbour of the Ontario Court of Appeal is authorized to take a leave from her judicial duties to serve as Prosecutor of the International Tribunal for …. (Judges Act)

If a person’s pronouns are not known, avoid making assumptions about their pronouns based on their name or any other indicators. Instead, consider replacing the pronoun with the person’s name or title or restructuring the sentence so that no pronoun is required. For example, the reference to “her remuneration” in example 18 could be replaced with “the Ambassador’s remuneration”.

Amending existing legislation

When amending legislation, replace any gendered language in the provisions being amended with more inclusive language. However, if there is no opportunity to modernize the language of the text as a whole, be aware that the new gender-inclusive language will be read in relation to any existing less-inclusive language and choose a drafting technique that will not introduce unintended ambiguities. For example, if a series of provisions uses “he” or “he or she” to refer to “an applicant”, the introduction of a singular “they” to refer to the same applicant in only one or two of the provisions may create confusion. In such cases, explore alternative solutions, such as repeating the noun or restructuring the sentence.

References and Further Reading

Balhorn, Mark (2004). The Rise of Epicene They. Journal of English Linguistics, Vol. 2, No. 2, pp. 79-104. doi:10.1177/0075424204265824

Baron, Dennis (2018). A brief history of singular ‘they’. Oxford English Dictionary Blog. https://www.oed.com/discover/a-brief-history-of-singular-they

British Columbia Law Institute (2022). Gender diversity in legal writing: Pronouns, honorifics, and gender-inclusive techniques. https://www.bcli.org/wp-content/uploads/Gender-Diversity-in-Legal-Writing-1.pdf

Curzon, Anne (2003). Gender Shifts in the History of English. Cambridge University Press. doi:10.1017/cbo9780511486913

Department for Women and Gender Equality (2018). Gender Results Framework. https://women-gender-equality.canada.ca/en/gender-results-framework.html

Eagleson, Robert D. (1994-1995). A Singular Use of They. The Scribes Journal of Legal Writing, Vol. 5, pp. 87‑100. https://heinonline.org/HOL/Page?handle=hein.journals/scrib5&id=1&size=2&collection=journals&index=journals/scrib

Gender-inclusive writing: Use the singular “they” (n.d.). Writing Tips Plus. https://www.noslangues-ourlanguages.gc.ca/en/writing-tips-plus/gender-inclusive-writing-use-the-singular-they

Inclusionary: A collection of gender-inclusive solutions (n.d.). Writing Tips Plus. https://www.noslangues-ourlanguages.gc.ca/en/writing-tips-plus/inclusionary

Inclusive writing – Guidelines and resources (n.d.). Writing Tips Plus. https://www.noslangues-ourlanguages.gc.ca/en/writing-tips-plus/inclusive-writing-guidelines-resources

Interdepartmental Terminology Committee on Equity, Diversity and Inclusion (n.d.). Guide on Equity, Diversity and Inclusion Terminology. https://www.noslangues-ourlanguages.gc.ca/en/publications/equite-diversite-inclusion-equity-diversity-inclusion-eng

Petersson, Sandra (1998). Gender Neutral Drafting: Historical Perspective. Statute Law Review, Vol. 19, No. 2, pp. 93‑112. doi:10.1093/slr/19.2.93

Treasury Board Secretariat (2018). Policy Direction to Modernize the Government of Canada’s Sex and Gender Information Practices. https://www.canada.ca/en/treasury-board-secretariat/corporate/reports/summary-modernizing-info-sex-gender.html#h-6

Ritchie, Marguerite E. (1975). Alice Through the Statutes. McGill Law Journal, Vol. 21, No. 4, pp. 685‑707. https://lawjournal.mcgill.ca/issue/volume-21-issue-4-1975

Scutt, Jocelynne A. (1985). Sexism in Legal Language. The Australian Law Journal, Vol. 59, pp. 163‑173.