Gender-Silent Legislative Drafting in a Non-Binary World

• Author: Donald L. Revell - Jessica Vapnek
• Position: Chief Legislative Counsel for Ontario, Canada - Lecturer in Law at UC Hastings College of the Law in San Francisco, California
• Pages: 1-45

GENDER-SILENT LEGISLATIVE DRAFTING IN A

NON-BINARY WORLD

DONALD L. REVELL AND JESSICA VAPNEK*

I. INTRODUCTION

Gender and sexual identity, as issues in law, have been with us for

centuries. The rights of women to hold property, to vote, and even to serve

in the legislature were once in doubt (and remain so in a handful of

jurisdictions). Women’s rights to govern their own bodies have been

circumscribed by abortion laws and by laws against birth control. The right

to work and to equal pay for work of equal value are recent developments in

North America, as are statutory protections against sexual harassment and

discrimination based on sex. These new protections and a dawning

awareness do not mean that harassment of and discrimination against

women have disappeared.

1

But the last 100 years have seen much progress.

What almost all women confronted in terms of overt discrimination,

bias, harassment, and violence in the past (and present), members of the

LGBTQIA+

2

community face now. Same-sex relationships are still a crime

* Donald L. Revell is a former Chief Legislative Counsel for Ontario, Cana da. Jessica

Vapnek is a Lecturer in Law at UC Hastings College of the Law in San Francisco, California.

The authors thank Jasmin Cohen, Kelsey Galantich, Dale Radford, and Helga Turku for their

research assistance on this article, and Grace Hum, David Marcello, and Cornelia Schuh for

thoughtful review of earlier drafts. We also thank Kae Warnock, Policy Specialist with the

National Conference of State Legislatures, a nd Ross Carter, Pr incipal Counsel, Office of

Parliamentary Counsel, New Zealand, and Secretary to the Commonwealth Association of

Legislative Counsel, for their assistance in administering a survey to legislative drafters

around the world in connection with preparing this article. Finally, we thank those who took

the time to respond to the survey and we give special thanks to our editor, Megan Nelson,

and the staff at Capital University Law Review.

1

See, e.g., Me Too Movement, WIKIPEDIA, https://en.wikipedia.org/wiki/Me_Too_

movement [https://perma.cc/PV5M-GBP6] (last visited Jan. 10, 2020).

2

Michael Gold, The ABCs of L.G.B.T.Q.I.A.+, N.Y. TIMES (June 21, 2018, updated June

7, 2019), https://www.nytimes.com/2018/06/21/style/lgbtq-gender-language.html [https://

perma.cc/9HU3-DDVQ]. In this article, we use LGBTQIA+ to mean a person who is lesbian,

gay, bisexual, transgender, questioning (or queer), or intersex, or who is an ally (or asexual).

The plus sign refers to anyone else not includ ed in the LGBTQIA formula.

104 CAPITAL UNIVERSITY LAW REVIEW [48:103

in many countries, punishable by significant prison time or even death.

3

LGBTQIA+ persons continue to face both legal and societal discrimination

throughout the world, and even their ability to migrate to safety is restricted.

4

Language is only a small part of discrimination, yet its effects are

pervasive. Although many jurisdictions have taken steps to change legal

language to place women on an equal footing, gender bias in language

persists. This may derive from traditional views concerning legal

personality, or it may stem from fixed ideas about legislation and legislative

drafting: among the arguments against gender-neutral language are that it

creates legal uncertainty; does not serve precision or clarity; fosters

ambiguity; distracts readers; is indirect; is not specific; is not eloquent; and

increases the length and thereby the cost of legislation.

5

Other barriers may arise from the structure of the language itself. In

some languages, for example, masculine plural nouns are used to refer to

groups containing both genders.

6

In the English language, “she” has been a

“he” for purposes of statutory interpretation until recent decades.

7

3

Nicole Chavez, Same-Sex Relationships are Still a Crime in 69 Countries, CNN HEALTH

(Sept. 7, 2018), https://www.cnn.com/2018/09/07/health/same-sex-relationships-worldwide-

list-trnd/index.html [https://perma.cc/Z55H-BEC3].

4

Protecting and Assisting LGBT Refugees, U.S. DEP’T ST. (“[I]n countries where they

seek safety, LGBT refugees often risk being harassed, hurt, or even killed. They may be

targeted by other refugees, host communities, or government officials and police, who may

threaten to arrest and detain them.”), https://2009-2017.state.gov/j/prm/policyissues/issues/

c62979.htm [https://perma.cc/AH48-BPVF] (last visited Feb. 6, 2020).

5

ENHANCING LEGISLATIVE DRAFTING IN THE COMMONWEALTH 55 (Helen Xanthaki, ed.,

2016); but see id. at 55–56 (convincingly dispatching these arguments). Cf. Martin Patriquin,

Canadiens and Canadiennes in Uproar as Student Paper Takes Stand on Gender, GUARDIAN

(May 8, 2019) (the decision of a Québec university newspaper to use both the masculine and

feminine “eats up more column inches”), htt ps://www.theguardian.com/world/2019/

may/08/canadiens-and-canadiennes-in-uproar-as-student-paper-takes-stand-on-

gender?CMP=Share_iOSApp_Other [https://perma.cc/BR2D-7FFY].

6

MARK EVAN SEGAL, LEGISLATIVE DRAFTING: PRINCIPLES AND MATERIALS 102 (July

2011), https://marksegaldotnet.files.wordpress.com/2011/07/legislativedrafting-

marksegal.pdf [https://perma.cc/T5SS-VQK6].

7

Interpretation Act (Ontario), R.S.O. 1990, c. I.11, s. 28(j) (Can) provided that: “In every

Act . . . unless the contrary intention appears, words importing . . . the masculine gender only

include . . . females as well as males and the converse . . . .” https://www.ontario.ca/

laws/statute/90i11?search=interpretation+act [https://perma.cc /D4G2-KPUE]. This was

repealed on July 25, 2007, when the Legislation Act came into force. Section 68 stated:

2020] GENDER-SILENT LEGISLATIVE DRAFTING 105

Nonetheless, despite resistance and doubt, significant changes have occurred

in legal language; what was once controversial (e.g., calling a female person

who acts an “actor” rather than an “actress”) is now, in many cases, routine.

We believe that the trajectory of recent language changes to account for

women’s rights should guide and inspire the next wave of language

transformation to take account of LGBTQIA+ rights. Just as drafting

conventions shifted over time in North America and elsewhere to reflect

women’s changing legal status, we believe that legislative drafting should

now change to reflect and support the legal status of transgender persons and

the legal recognition of non-binary genders. These changes are essential

because in addition to the traditional binary classifications of gender and

sexual identity, there are now recognized persons with a third gender or no

gender. Many jurisdictions in North America and elsewhere have begun

making changes in the law related to gender and sexual identity to reflect

growing LGBTQIA+ rights, having recognized that a change in language

can be one small step in advancing equality. Much more can be done to

recognize the rights of members of the LGBTQIA+ community in legal

language to account for non-binary genders.

This article explores the implications for English-language legislative

drafting (and potentially other legal drafting) of a growing recognition that

gender and sexual identities exist along a continuum.

8

The article first

analyzes what we mean by gender-neutral drafting, then examines how such

drafting has evolved in the English-speaking world and elsewhere. Drawing

on our research and a survey we undertook with English-language drafters

in the United States and throughout the Commonwealth of Nations and

elsewhere, we offer a snapshot of how current drafters are taking account (or

“Gender-specific terms include both sexes and include corporations. S.0. 2006, c. 21 (Can.),

https://www.ontario.ca/laws/statute/s06021?search=legislation+act

[https://perma.cc/LMW5-TGA8]. This in turn was replaced in 2016 when the All Families

Are Equal Act enacted a new section 68 of the Legislation Act, which reads: “Gender-specific

terms refer to any gender and include corporations.” See S.O. 2016, c. 23, s. 56 (emphasis

added), https://www.ontario.ca/laws/statute/s16023?search=gender-specific&use_exact=on

[https://perma.cc/S5GE-Y8HR].

8

See Gender Identity, WIKIPEDIA, https://en.wikipedia.org/wiki/Gender_identity

[https://perma.cc/2TMU-PEPZ] (last visited Feb. 6, 2020); see also Understanding Gender,

GENDER SPECTRUM, https://www.genderspectrum.org/quick-links/understanding-gender/

[https://perma.cc/C7MY-GNC2] (last visited Feb. 6, 2020). For an example of this growing

recognition, see Richard Pérez-Peña, English Freemasons Open Door to Transgender

Members, N.Y. TIMES (Aug. 1, 2018), https://www.nytimes.com/2018/08/01/

world/europe/uk-freemasons-transgender.html [https://perma.cc/PT58-EDPA].