All hail the patriarchy! These are archaic salutations for a society where misogyny reigns supreme, where ‘he’ remains the default and where women shrink their experiences to appease the masculine perception of language. Language, like the law, reflects the dominant cultural, economic and social realities of the time and possesses the ability to dually oppress and liberate women. As the role of women evolves in society so does the expectation that such experiences are reflected in policy and language.
Gender-biased language, also referred to as sexist or exclusive language, uses language that assumes men as the norm, such as through third-person pronouns (him, his and he) or gender-marked terminology (e.g. chairman or businessman).[1] Conversely, gender-neutral or non-sexist language endeavors to eliminate gender bias by employing various techniques.[1] The struggle for gender-neutral language has been present in the context of legislative drafting for decades but has not seen universal adoption. Difficulty in implementation arises because legal language is the most formal use of language, entrenched in tradition.[2] The elimination of gender bias in legislation begins with the departure from the masculine rule found in interpretation Acts purporting that words signifying the masculine also include the feminine. An interpretation Act is a law that specifies how to interpret all other Acts in a specific jurisdiction.[3]
Many jurisdictions have amended or proposed amendments for the masculine rule in order to redefine women’s representation in legislation. Alternatives to the masculine rule include the two-way rule, the all-gender rule and the separate gender rule. The United Kingdom has adopted the former in the Interpretation Act, 1978, establishing that either masculine or feminine words include the other gender.[4] In contrast, the all-gender rule holds that words importing one gender include every other gender.[4] However, these amendments are criticized for ‘false neutrality’ due to their inability to alter drafting style or discourage the use of male terms to include women.[5] Conversely, the separate gender rule mandates a change in drafting style by prohibiting the use of either the masculine or the feminine to refer to the other.[5] This approach requires a clear commitment from policymakers but has rarely been successful.
Within the Pakistani context, Article 263 of the Constitution of Pakistan, 1973 abides by the masculine rule to interpret the Constitution. Similarly, Section 13 of the General Clauses Act, 1897 meets between the masculine and two-way gender rules. While the Act does not expressly state that ‘words importing the feminine gender shall be taken to include males,’ the ‘vice versa’ at the end of the clause implies the former. Regardless, gender-marked terminology (such as “Chairman” in the Constitution) and gender-biased drafting persist, contributing to the degradation of women to secondary or invisible status and trivializing their linguistic portrayal.[1]
Unfortunately, strides towards gender-neutral drafting are barricaded by vehement opposition. To begin with, critics believe that the issue is too trivial to merit the effort needed to overhaul the rigid legal language that is deeply rooted in tradition.[6] In addition, aesthetic arguments insist that gender-neutral drafting is either overly repetitious, overly lengthy, or simply awkward,[4] which compromises brevity and increases legislation costs.[7] Lastly, critics suggest that gender-neutral language engenders uncertainty in the law due to a lack of specificity.[8] This argument concerns primarily with specific techniques to draft neutrally rather than opposition to the policy itself.
However, resorting to gender-biased terminology does not resolve the issue of clarity as it is difficult to discern whether specific gender-marked terminology refers to males only or both sexes. It was exemplified in Umar Asif Janjua vs. University Of Engineering And Technology Through Vice Chancellor University Of Engineering And Technology, Lahore And Others where the court held that, “…the word ‘father’… has been used as a term of art and not in the popular sense… [thus] includes the father as also the mother…” when mentioned in the university’s prospectus, yet in other circumstances the term ‘father’ is meant to be understood to refer to one sex only, such as in Section 4 of the Pakistan Citizenship Act, 1951.
Furthermore, scholarly research in various disciplines has emphasized the detrimental effects of gender-biased language. Speakers of gendered languages continually differentiate between males and females, which activates the concept of gender in their memory, making it more accessible when constructing opinions.[9] Consequently, these individuals are more likely to view the role of men and women as divergent and distinct.[9] Specifically, gender-biased language is associated with restricting girls’ perception of suitable career options,[10] hindrance and inefficacy of political quotas and proliferation of gender-discriminatory attitudes.[11] For instance, a study by Givati and Troiano revealed that the more gendered the language of a participant had been, the more likely would the respondent believe that men deserved preferential access to jobs during job scarcity.[12] Furthermore, a study where participants were requested to delineate the gender of people described with male-linked generic terminology such as “the potentialities of man” demonstrated that gendered terminology produced biased images. 66% of the participants described males in response to the questions, with only 29% referring to neither sex and a mere 9% describing women.[13]
Essentially, the drafters must approach gender-neutral drafting through an agenda of fairness and equality. The law communicates a society’s standards that should be equitable towards all of its members. In fact, policymakers should go a step ahead and assist in developing principles of fairness that citizens can then internalize intellectually, emotionally and ethically. Tradition or aesthetics are not sufficient justifications for masking the power imbalance and preserving the status quo through the masculine or two-way rule. All forms of prejudice require some effort to reverse, but anything is possible given enough dedication and commitment.
However, it is pertinent to remember that women and men are equals yet ‘different and gendered’.[14] Therefore, striving towards reducing discrimination should not legitimize other forms of oppression. It is necessary to distinguish between gender awareness and gender neutralization when it comes to gender-specific crimes.
Despite international dialogue on various proposals for gender-neutral drafting, most techniques have not gained enough traction within Pakistani legislative drafting manuals. For instance, the manual prepared by the Pakistan Institute for Parliamentary Services mentions only one technique for gender-neutral drafting without a strong commitment towards non-discrimination. The 2017 manual produced by Manzil Pakistan dedicates a subsection to gender yet does not cover every technique to fit different contexts. Consequently, Bills proposed to and passed by the legislature reflect such gaps. For instance, a recent Act of the National Assembly of Pakistan, the China Pakistan Economic Corridor Authority Act, 2021 predominantly uses masculine pronouns with only one use of ‘her’ which contributes to the exclusion of women from the law.
Pakistan must take a firm stance against discrimination towards women by instructing every Ministry to employ gender-neutral language and prepare a comprehensive guideline with every technique and appropriate use. While gender-neutral drafting is not a universal cure to gender inequality, it is a necessary condition to achieve an equitable reality.
References
[1] J. D. Fischer, “Framing Gender: Federal Appellate Judges’ Choices About Gender-Neutral Language,” University of San Francisco Law Review, vol. 43, no. 3, 2009.
[2] M. Wilson, “Gender Neural Law Drafting: The Challenge of Translating Policy into Legislation,” European Journal of Law Reform, no. 2, 2011.
[3] J. V. Donald L. Revell, “Gender-Silent Legislative Drafting in a Non-Binary World,” Capital University Law Review, vol. 48, no. 2, 2020.
[4] C. Toro, “Gender neutral drafting: Gender equality or an unnecessary burdern?,” IALS Student Law Review, vol. 5, no. 1, pp. 34-40, 2018.
[5] Sandra Petersson, “Gender-Neutral Drafting: Recent Commonwealth Developments,” Statute Law Review, vol. 20, no. 1, 1999.
[6] L. M. Rose, “The Supreme Court and Gender-Neutral Language: Setting the Standard or Lagging Behind?,” Duke Journal of Gender Law & Policy, 2010.
[7] K. Kabba, “Gender-neutral language: an essential language tool to serve precision, clarity and unambiguity,” Commonwealth Law Bulletin, vol. 37, no. 3, 2011.
[8] D. Schweikart, “The Gender Neutral Pronoun Redefined,” Women’s Rights Law Report, 1998.
[9] E. O. Pérez and M. Tavits, “Language Influences Public Attitudes toward Gender Equality,” The Journal of Politics, vol. 81, no. 1, 2019.
[10] J. B. Park and M. A. Roberton, “Explaining Age and Gender Effects on Attitudes toward Sexist Language,” Journal of Language and Social Psychology , vol. 24, no. 4.
[11] E. Santacreu-Vasut, A. Shoham and V. Gay, “Do female/male distinctions in language matter? Evidence from gender political quotas,” Applied Economics Letters, vol. 20, no. 5, pp. 495-498, 2013.
[12] Y. Givati and U. Troiano, “Law, Economics, and Culture: Theory of,” The Journal of Law & Economics, vol. 55, no. 2, 2012.
[13] V. Kidd, “A Study of the Images Produced Through the Use of the Male Pronoun as the Generic,” in Moments in contemporary rhetoric and communication, 1971.
[14] A. Mooney, “When a woman needs to be seen, heard and written as a woman: Rape, law and an argument against gender neutral language,” International Journal for the Semiotics of Law, pp. 39-68, 2006.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.
Excellent article on this topic
I read the whole article thoroughly and am in agreement of your ideas about how important it is to have gender neutral terms, particularly when it comes to the word of law…
I decidedly admire your thought process in this regard.🍎