Whether you are drafting a contract or a brief, be conscious of and avoid sexist language. Sexist language can be distracting and/or offending, and may even turn off your reader to your content altogether.
A common way to avoid sexism in your legal writing is by using gender-neutral terms. This is often a good plan, but there are potential issues with it. For example, some writers alternate between male and female pronouns more or less at random, but many readers find this technique confusing. Others coin new and sometimes distracting words such as “repairperson” or “waitperson.”
Here are some ways to reduce the need to use gender-neutral terms in your writing:
- Use plural instead of singular nouns. “A lawyer may ask his secretary or law clerk to file and serve papers” becomes “Lawyers may ask their secretaries or law clerks to file and serve papers.”
- Do not use possessives. “A trial lawyer must rely on his quick wits and his thorough understanding of the Evidence Code when making objections” becomes “A trial lawyer must rely on quick wits and a thorough understanding of the Evidence Code when making objections.”
- Replace third person singular possessives with articles. “The new rules require a lawyer to complete his 36 hours of continuing education every 3 years” becomes “The new rules require a lawyer to complete the 36 hours of continuing education every 3 years.”
- Replace pronouns with nouns. “He sent his tenant a new lease” becomes “The lessor sent a new lease to the tenant.”
- Use “who” structures to avoid unnecessary gender identification. “The judge argued that a new constitutional rule should be applied for the benefit of a defendant if his case is still pending on direct appeal” becomes “The judge argued that a new constitutional rule should be applied for the benefit of a defendant whose case is still pending on direct appeal.”
- Replace words that indicate gender with those that do not. “The problem is that one man’s symbolic act is another man’s civil liberties violation” becomes “The problem is that one person’s symbolic act is another’s civil liberties violation.”
- Refer to the office or function. ”The trustee may, in his absolute discretion, invade principal” becomes “The trustee may, in the trustee’s absolute discretion, invade principal.”
Sexist language is just one type of biased language that we need to root out of our writing. For example, religiously-biased language poses a potential problem also, such as “this is my cross to bear.”
Not only can biased language be morally offensive it can be a poor tactical move. It’s always best to remove any distractions from your content.
For an excellent primer on the use of language in contract drafting, turn to CEB’s Drafting Business Contracts: Principles, Techniques and Forms, chap 2, which includes a chart of alternatives to sexist terms. Also check out CEB’s program, “Girlie Men” and “Manly Girls”: Gender and Language for Attorneys, in which Teri Shugart discusses how language can communicate bias and perpetuate prejudice and stereotyping. This program is available On Demand and provides one hour of MCLE credit in Elimination of Bias in the Legal Profession. Check out a short video clip of the program.
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