As a profession, we are obligated to uphold and promote the values enshrined in the Canadian Charter of Rights and Freedoms, including; equality, respect for diversity, human dignity, liberty and autonomy. Careful drafting with an eye to removing and replacing gendered pronouns and gender assumptions is a small but critical way the legal profession can promote equality and respect for gender diverse Canadians. The following legal resources, as well as practice and drafting tips, can help you get started in meeting this important obligation.
GENDER BASED RIGHTS AND PROTECTIONS IN ONTARIO
Assented to on June 19, 2017, Bill C-16 An Act to amend the Canadian Human Rights Act and the Criminal Code, amended the Canadian Human Rights Act to include “gender identity or expression” as grounds protected from discrimination and the Criminal Code to include “gender identity or expression” in the definition of ‘identifiable group’ under subsection 318(4).
In 2014, the Ontario Human Rights Commission (OHRC) published the Policy on Preventing Discrimination because of Gender Identity and Gender Expression. While not legally binding, the OHRC Policy provides guidance and best practice tips for Ontarians.
There are a variety of simple ways you can make your practice more gender inclusive:
1. SEX AND GENDER – KNOW THE DIFFERENCE AND WHERE IT MATTERS
Sex, the classification of individuals as male, female, or intersex, is usually assigned at birth and based on the individual’s reproductive systems generally. Gender, on the other hand, relates to an individual’s deeply held internal sense of self as being a woman, man, both, neither, or anywhere on the gender spectrum. It is crucial for legal professionals to recognize and respect that gender and sex do not align in every case. For example, in applying Ontario’s Employment Standards Act pregnancy leave policies, it is important for lawyers to recognize that the pregnant employee could identify as a man, as gender non-binary, as gender queer, or any host of other gender identities.
While it is outside the scope of this article to review or define various gender identities, gender expression, or the numerous challenges faced by gender diverse Canadians, educating yourself is one of the best ways to serve your clients. The OHRC’s Policy provides ample guidance on discrimination faced by gender diverse Canadians, best practices, and a glossary for understanding gender identity and expression.
3. CLIENT INTAKE QUESTIONNAIRE
Including a space for your client to provide you with their pronouns on your client intake form will enable you to appropriately address them on a go-forward basis. In requesting this information, it is best to provide a space for your client to fill in, as opposed to selecting from two or more pre-provided options.
Below is a non-exhaustive list of some gender-neutral writing techniques and considerations to take into account the next time you are drafting or reviewing documents:
1. USE “THEY” IN PLACE OF HE/SHE
It is commonplace to see he/she, him/her, or himself/herself throughout legal documents. Instead, consider using they/them/themselves to refer to singular indefinite nouns. The use of ‘they’ not only simplifies your language and makes it easier for the reader to digest, it is also more correct as it encompasses all persons, irrespective of their gender and gender-identity.
2. CHOOSE INHERENTLY GENDER-NEUTRAL TERMS OR PHRASES
Wherever possible, remove gender specific terms and replace them with inherently gender-neutral options. For example, chairman can be replaced with chairperson or chair in a shareholders agreement.
3. ASK FIRST AND DON’T ASSUME
When you are drafting with a mind to a specific client or individual, the use of gendered pronouns may be appropriate or even unavoidable. Where this is the case, include in your standard list of questions to the client a section for them to identify their pronouns. Remember when drafting this question that it is preferable to allow the client to fill in their pronouns as opposed to choosing from a set of pre-populated options.
As lawyers, we are in the fortunate position that through small changes in our day-to-day practice we can greatly improve the experience of our clients and gender diverse Canadians across the country. If you would like to learn more about gender-neutral drafting in the legal profession see Gender-Free Legal Writing, Managing the Personal Pronouns, British Columbia Law Institute (July, 1998).
An earlier version of this article appeared on the Young Lawyers Division webpage.
1. A full copy of Bill C-16 is available at https://laws-lois.justice.gc.ca/PDF/2017_13.pdf.
2. Ontario, Human Rights Commission, Policy on Preventing Discrimination because of Gender Identity and Gender Expression, (April 14, 2014) available at www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression.