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Introduction from the Office of the Parliamentary Counsel and GovernmentLegal Department The UK’s Office of the Parliamentary Counsel and Government Legal Departmenthave been promoting the use of gender-neutral drafting for UK statutes and statutory instruments for many years. Both organisations are at the heart of drafting legislation in the UK and are proud to have this opportunity to share our approach to gender-neutral drafting with the wider legal profession responsible for private law agreements and other products. There is no reason why gender-neutral drafting cannot become the norm across the profession. We are both committed to being outstanding legal organisations and brilliant places to work, where our people can thrive and fulfil their potential. We are also committed to being leading employers in relation to diversity and inclusion. We are most grateful to the InterLawDiversity Forum for helping us reach out to their network of practitioners for this breakfast seminar, perhaps the first of its kind in London. We hope to exchange best practice with colleagues across the legal profession and demonstrate how it is easy to draft in a way that is legally effective and gender neutral. Elizabeth Gardiner CB First Parliamentary Counsel Office of the Parliamentary Counsel Jonathan Jones QC (Hon) Treasury Solicitor Government Legal Department 1Foreword from Global Butterflies and the InterLaw Diversity Forum 2 We are very proud to be supporting the publication of this simple, yet well- crafted and effective Guide to Gender-Neutral Drafting for the wider UK legal profession.This publication has been drafted by theOffice of the Parliamentary Counsel and the Government Legal Department, distilling years of work by both organisationsto promote gender-neutral drafting in a wide range of UK government legal documents. When servicing our clients and supporting the members of our organisations, it is important to reflect them in an inclusive manner that providesequal respect to all. Gender-neutral drafting in legal documentation has multiple benefits for equality and inclusion, including promoting gender equality and equality across the gender-identity spectrum. Furthermore, a significant percentage of the next generation of the workforce nolonger sees gender as binary and expects to see a new and better approach to gender identity and expression in documentation. We hope that a wide range of legal employers will use this guide to transform documentation within the UK legal sector and to create better work product and more inclusive workplaces and client service. Emma Cusdin People Director, Aviva Director, Global Butterflies Rachel Reese Director, Global Butterflies Vice Chair, Law Society LGBT+ Solicitors Division Trustee, GiveOut Daniel Winterfeldt Founder & Chair, InterLawDiversity Forum Global Capital Markets Partner, Reed SmithW HATISGENDER - NEUTRALDRAFTING ? In its broadest sense gender-neutral drafting involves: • avoiding gender-specific pronouns and adjectives (such as “she/her/hers” or “he/him/his”); • avoiding nouns that might appear to assume that a person of a particular gender will do a particular job or perform a particular role (e.g., “chairman”). A VOIDINGGENDER - SPECIFICPRONOUNS A range of techniques are available for avoiding gender-specific pronouns. Which of them works best will depend on each specific context. The techniques available fall into three main categories: (1) Repeat the noun; (2) Change the pronoun; (3) Rephrase to avoid the need for a noun or pronoun. (1)Repeat the noun You can repeat the noun each time rather than using a pronoun. __________________________________________________________ EXAMPLE ... earnings, in relation to a person, means sums payable to the person in connection with the person’s employment ... __________________________________________________________ This works well in a simple case, but in some cases constant repetition may lead to long or inelegant drafts, in which case one of the other techniques discussed below may be preferable. G ENDER -N EUTRAL D RAFTING 3One way to minimisethe awkwardness of repeating a long compound noun is to use a defined term. __________________________________________________________ EXAMPLES ... may give a youth conditional caution to a child or young person (“the offender”) if the offender ... 1. Definitions … “D” means a director or other officer of the company. 2. Powers … may give D benefits under this contract where the following conditions are met ... __________________________________________________________ (2) Change the pronoun They (singular). In everyday speech, “they” is often used in relation to a singular antecedent which could refer to a person regardless of gender. Whether this popular usage is correct is sometimes disputed. OED (2nd ed, 1989) records the usage without comment; SOED (5th ed, 2002) notes “considered erron. by some”. It is certainly well-precedented in respectable literature over several centuries (e.g., Shakespeare, Dickens, Sir Walter Scott, CS Lewis … ). “They” as a singular pronoun may seem more natural in some contexts (for example, where the antecedent is “any person” or “a person”) than in others. __________________________________________________________ EXAMPLE It is a defencefor a person charged with an offence under this section to prove that they had a reasonable excuse for their action. __________________________________________________________ G ENDER -N EUTRAL D RAFTING 4They (plural). It may be possible to turn the noun into a plural noun and then to use “they”, but care needs to be taken to ensure that use of the plural does not lead to ambiguity. __________________________________________________________ EXAMPLE Participants may only carry on [particular activities] ... if they hold a permit … __________________________________________________________ (3) Rephrase to avoid the need for a noun or pronoun Use the passive __________________________________________________________ EXAMPLE ... explaining why the regulations have not been laid … (rather than “explaining why he has not laid the regulations”) __________________________________________________________ If using the passive voice particular care needs to be taken to ensure that it is clear who has to do what. Use “who” instead of “if he” __________________________________________________________ EXAMPLE A person who … commits an offence … (rather than “A person commits an offence if he") __________________________________________________________ A potential disadvantage of the approach in this example is that it postpones the operative words to the end. That can detract from readability, especially if the relative clause (introduced by “who”) is long. G ENDER -N EUTRAL D RAFTING 5Impersonal constructions. Other impersonal constructions are possible. Again, care needs to be taken not to produce an unnatural dislocation between the person and the thing, event or action being spoken of. __________________________________________________________ EXAMPLES It is an offence for a person to ... (rather than “A person commits an offence if he”) Dropping litter is an offence … (rather than “A person commits an offence if he drops litter”) Before giving guidance ... (rather than “Before he gives guidance”) __________________________________________________________ Substitute “the” or “that” for “his/her” __________________________________________________________ EXAMPLES … the reasonableness or otherwise of that belief … (rather than “his belief”) The members of a company may remove an auditor from office if satisfied that the auditor .... has failed to discharge the functions of that office. (rather than “his office”) __________________________________________________________ On occasion this approach may risk losing the link between the noun and the person being spoken of and thereby lose clarity, or at least may give the reader an unexpected jolt. G ENDER -N EUTRAL D RAFTING 6Omit the pronoun. Sometimes it is not necessary to use a pronoun at all. __________________________________________________________ EXAMPLES … circumstances which justify doing so … (rather than “justify him doing so”) … immediately before death … (rather than “his death”) __________________________________________________________ This technique relies on the reader using the context to supply the word omitted. Care is needed to avoid uncertainty. Omit the phrase with the pronoun. It might be worth asking whether the phrase requiring the personal pronoun adds anything worthwhile in the particular context. __________________________________________________________ EXAMPLE … the Secretary of State may … (rather than “the Secretary of State may, if he thinks fit”) __________________________________________________________ G ENDER -N EUTRAL D RAFTING 7A VOIDING GENDER - SPECIFIC NOUNS “Chair” is now widely used in primary legislation as a substitute for “chairman”. Some English words denoting a particular occupation, role or activity exist in a form with a feminine suffix, the obvious example being -ess (manager/manageress, actor/actress, author/authoress). In many cases the feminine form has fallen or is falling out of use and the suffixless form is or can be used for any person regardless of gender (“they are a marvellous actor”). Where that is the case, the suffixless form is preferable. November 2019 © Crown Copyright* *This note is based on guidance produced by the Office of Parliamentary Counsel in drafting legislation, which is publicly available at www.gov.uk. G ENDER -N EUTRAL D RAFTING 8Next >