Gender-Silent Legislative Drafting in a Non-Binary World

Language both reflects and changes society. From the 1970s onward, English-language jurisdictions successfully shifted from a male-centric framework (where “he” was presumed to include women) to a style of legislative drafting that was gender neutral. In most jurisdictions, women are no longer invisible but can see themselves in the laws that apply to them. Now, there is growing recognition of the rights of those who identify as neither male nor female – but this group is not represented in traditional gender-neutral drafting. This article is an important contribution to the conversation about the treatment of gender in language in general and in legislative drafting in particular. We show how English-language legislative drafting throughout the world has moved from the dominant representation of males in legal policy and the masculine gender in legislation to a more balanced representation of men and women and a gender-neutral style and how, despite resistance from grammarians and others, the arc of justice now requires an analogous shift to a gender-silent style. Language is an instrument that can be used as a tool to oppress, discriminate, and exclude – or it can equally well be used to advance equality. We believe it is high time to treat non-binary persons with the respect and fairness now accorded to women in legislation. We believe all jurisdictions should embrace gender-silent drafting as an honorable way to treat one another in a non-binary world, and we provide clear guidelines of how to achieve a gender-silent style.