Watch your language – gender neutrality in contracts

16th May 2022

Watch your language – gender neutrality in contracts

If any profession values the significance of one’s choice of words, it is the legal profession. We know that slight nuances in the meanings of words can result in a deluge of complications. Words have power. 

The use of male dominated language has historically been accepted, normalised and expected, with the result that most people are completely oblivious or indifferent to the fact that contracts contain gendered language. It is generally the default position when the gender is unknown. For instance, references to the ‘chairman’ might not even be perceived to be male. 

As humans our collective identity has been understood as masculine – we use ‘man’ to describe our species and ‘mankind’ to unify us. The book, Invisible Women: Data Bias in a World Designed for Men provides that our culture and language follow a generic masculine framework where ‘male bias is so firmly embedded in our psyche that even genuinely gender-neutral words [like doctor or actor] are read as male’.

Those who are of the view that the use of male-dominated language is innocuous and simplifies contracts will be surprised to learn that there is a myriad of academic literature on the subject that suggests that the use of such words subconsciously perpetuates stereotypes and prejudices. 

The use of such words can significantly influence our thoughts in a way that we do not question because it is so subtle and feels ‘natural’. Using gendered language is simply a bad habit. Lawyers who mindfully adapt the way they draft are hardly radical, but this simple practice may have a positive societal butterfly effect. 

Some lawyers might argue that they have addressed this issue in contracts by replacing male terms with female equivalents. However, it has become largely accepted that gender now embraces a broad spectrum of minorities that do not consider themselves as male or female. Excluding this demographic is myopic and clings to prejudicial biases. 

An article in The Harvard Law Review aptly provided that language can be used as a tool to liberate but can also simultaneously function as a tool to discriminate against marginalised groups within society. 

It is also insufficient in my view for an interpretation clause to provide that the masculine form includes all other genders. There does not have to be a pronoun apocalypse. There are very simple ways of drafting that can avoid gender bias and many countries have even published guidelines to encourage lawyers to do so.

It is irrelevant whether or not one understands and empathises with the underlying reasons behind the insistence on gender neutrality in language. Should you embrace the sacrosanct Constitutionally enshrined principle of equality and consider the ease of drafting a gender neutral, inclusionary contract, then I think you will agree that it is time for the corporate and legal world to transition.

Written by Ricci Hackner, Knowledge and Learning Lawyer: Corporate, Bowmans South Africa