Jessica Vapnek on Gender-Silent Legislative Drafting

Published on: Author: sargeantsamara

Thirty years ago, a property student accused me of ruining the English language by using the word remainderperson.  Never mind that very few people use the language of future interests in their daily lives, the student’s point was that a man word (remainderman) is more correct than a gender-neutral word (remainderperson).  The student’s authority was Strunk and White, The Elements of Style, which opined that “The use of ‘he’ as a pronoun for nouns embracing both genders is a simple practical convention rooted in the beginnings of the English language. He has lost all suggestion of maleness. [It] has no pejorative connotation; it is never incorrect.”  In an article titled “Gender-Silent Legislative Drafting in a Non-Binary World” in Capital Law Review, Jessica Vapnek and Donald L. Revell, a former Chief Legislative Counsel for Ontario, Canada, posit that the reaction to the singular “they” (as in:  “the student shall submit their exams via the applicable software”) and other drafting solutions to account for non-binary genders may seem just as jarring to some drafters now, but these solutions will become the norm in the future.

 

Although the legal status of women in North America has improved over the last 40 years, LGBTQIA+ persons continue to face both legal and societal discrimination.  Language is only a small part of discrimination, yet its effects are pervasive. Vapnek and Revell argue that the trajectory of 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, the article proposes that legislative drafting should also change to reflect and support the legal status of transgender persons and the legal recognition of non-binary genders.

 

Reviewing the history of legislative drafting to account for women’s rights, the article explores the implications for English-language legislative drafting of the existence of people who do not fit the traditional binary classifications of gender and sexual identity. The article then reviews the results of the authors’ survey of English-language drafters around the world (the 50 U.S. states, Australian states and territories, and Canadian provinces, as well as the countries and jurisdictions that are members of the Commonwealth). The authors conclude that some jurisdictions are already accounting for non-binary genders in law, legislation, and government forms, but they argue that other jurisdictions (and legislative drafting offices) could and should do more.

 

To account for non-binary genders, the authors propose a legislative drafting style they call “gender-silent legislative drafting,” and they offer practical guidance (including examples) on how to implement the style.  Since its publication, Vapnek and Revell’s article has been viewed 1,400 times and downloaded almost 350 times.  This article has an audience far broader than legislative drafters.  If I were a law publisher, I would recommend this article to content providers.  If I were an academic dean, I would recommend it to exam writers as yet another way to practice inclusivity in the classroom.