Sandra Petersson, “Locating Inequality -- The
Evolving Discourse on Sexist Language” (1998) 32 U.B.C. Law Review 55 at 55-56;
57-59; 60-68; 79; 83-86; 90-91
I. INTRODUCTION
In this article, I trace
the progress of the debate about sexism in legal language, with special
reference to sexism in the language of legislation. Beginning in 1975 with Marguerite Ritchie's initial challenge
that the statute book is sexist and written from a male perspective, the debate
moves through three phases:
1. Initial feminist
criticism that legal language is sexist and discriminatory.
2. Denial of sexist
language as a legal or equality issue.
3. Further feminist
theorizing to locate the inequality in sexist language.
Though the initial feminist criticism refers to numerous decisions in
which male terms were used to discriminate against women, those who justify
male terms ignore this historic evidence of discrimination. This fundamental
difference between the two sides regarding whether male terms discriminate
against women polarizes the debate in the second phase, bringing it to an
impasse and hindering reform. This impasse is later resolved during the third
phase, as later feminist theory draws law and language together to identify the
continuing detriment to women in the use of male terms. The inequality that
flows from male terms is not isolated in the past but is also located in the
present text of the law.
II. LEGAL LANGUAGE IS
SEXIST
… I would like to define
three terms which I use throughout this article.
1. THE MASCULINE RULE
I refer to the
legislative authority to use words denoting males when referring to both sexes
as the "masculine rule." For example, until recently, federal
interpretation legislation provided that "words importing male persons
include female persons and corporations."
This provision supplies the argument that any word seeming to refer to
men also includes women. Legislation
also extends the masculine rule to a variety of private instruments.
2. THE CONTEXT RULE
The masculine rule has
never been absolute. For example, the federal Interpretation Act
excludes the masculine rule's operation where "a contrary intention
appears." Though the wording of
the exception varies both among jurisdictions and over time, its effect is to
invoke contextual considerations to assess women's inclusion. Accordingly, I
refer to the means of excluding the masculine rule as the "context
rule."
3. MALE TERMS
The masculine rule allows
words importing the masculine gender to include females. For brevity, I refer
to words importing the masculine gender as "male terms." Before proceeding, however, it is helpful to
consider which words import the masculine gender.
"Gender" is a grammatical term that describes the
classification of nouns and related words as masculine, feminine, or neuter. In
many languages, French and German for example, gender is assigned on a purely
grammatical basis, regardless of any inherently perceived masculinity or
femininity, or even in disregard of animacy. However, English gender is said to
be "natural." Meaning
determines gender in English -- only words referring to living creatures of
known biological sex can be classed as belonging to the masculine or feminine
gender. Masculine gender words, that is
words identifying male beings, therefore, make up only a small part of the
overall English word stock. Of these,
the masculine rule will only be invoked by words appearing in legislation. Thus, words importing the masculine gender
are such nouns as "man," "father," "son,"
"brother," "king," "boy," "bull," and
"stallion."
Within the scope of my analysis, the list of male terms is further
restricted to words denoting people.
Though there are instances of nouns such as "man,"
"father," and "boy," the most frequent male terms in legal
texts are the masculine pronouns "he," "his,"
"him," and "himself."
On occasion, the context makes it more appropriate to speak of the
narrower category of masculine pronouns, rather than male terms. However, the
masculine pronouns are often used with reference to nouns which themselves do
not belong to the masculine gender, words such as "person,"
"everyone," "individual," or "employee." Indeed, this was the rationale for adopting
the masculine rule. The masculine
pronouns may, thereby, be thought to appropriate such words to the masculine
gender, making them male terms.
Katherine de Jong shares this assessment in her conclusion that the
"combination of a neutral word with a masculine pronoun has the effect of
making the neutral word masculine -- it becomes identified with maleness in the
mind of the reader." I therefore
include neutral words used with masculine pronouns within the definition of
male terms.
B. FEMINIST THEORIES AND
LANGUAGE
Since the late 1960s,
language has been a subject of feminist study. Deborah Cameron explains how
language first became a feminist concern:
One of the
ways a concern with language entered contemporary feminism was through the
preoccupation of the early second wave (in the late 1960s and early 1970s) with
"images of women," that is, representations. . . .
Language too
is a medium of representation, and not surprisingly the sexism of many
conventional usages was challenged by feminists early on. . . . Usages were
thought to be in need of reform if they were blatantly offensive ("Blonde
in fatal car crash"; "bitches wear furs") or else androcentric,
implying that the norm of humanity is male ("Man,"
"mankind," "man in the street," and so on). Reform usually
meant avoiding offensive expressions and recasting androcentric ones so they
became neutral (thus "mankind" becomes "humanity" and so
on).
The formal nature of legal language curtails the instances of
blatantly offensive usages, though these do occur. For example, the
"female person of previously chaste character" was deemed in need of
special protection. However, the
endorsement of male terms in legal language, backed by legislative authority of
the masculine rule, made it an inevitable target of feminist criticism.
The initial feminist criticism focuses on the male images presented by
legal language. This early criticism reflects the influence of liberal feminism
in both its traditional case law analysis and its reliance on the law as a
means for its own reform. In contrast,
the third phase of the debate draws on radical and postmodern feminism to argue
that legal language discriminates against women at a deeper level and not just
by its obvious use of male images.
Those writing to oppose male terms in legislation raise three
arguments to support the conclusion that legal language is sexist. These writings span the decade 1975 to 1985.
I summarize each of these arguments below.
C. THE MASCULINE RULE IS
ARBITRARY
The initial criticism of
the masculine rule frequently met the reply that male terms simply reflect
correct English grammar. For example,
Elmer Driedger claims that the masculine rule "merely confirms English usage
for the statutes. Even if it were not there, correct English usage would
require the use of the masculine pronoun to refer to all persons." However, as those opposing male terms
reveal, both the rule of grammar and the rule of law are arbitrary choices.
Opposition to male terms incorporates research by feminist linguists
Ann Bodine and Dale Spender to show the arbitrary nature of this grammatical
rule. Bodine traces the use of male
terms, the masculine pronouns in particular, to represent both sexes through
the grammar books of three centuries.
Beginning with Wilson's 1553 comment that it was more
"natural" to place male terms before female terms, as in
"husband and wife," she notes the gradual shift to using male terms
to include women. She follows the
rule's construction through to Kirkby's 1746 formulation of "Rule Number
Twenty One" which declared that male terms are more comprehensive than
female terms. Spender highlights the
social significance of Bodine's work in discussing how Rule Number Twenty One
was promoted as "correct" over other options:
Rule Number
Twenty One is one man's bias, verified by the bias of other men, and imposed
upon women. They did not participate in its production, they do not benefit
from its use. It was a sexist principle encoded in the language by males and
which today exerts a considerable influence over thought and reality by
preserving the categories of male and minus male.
During Mr
Kirkby's time, most people did not modify their language to accommodate his
rule. Although he wrote for such a select audience, even many males remained
oblivious to his rule. It may have served to reinforce hierarchical
distinctions among those who "knew" that the use of he/man
included women on the "grammatically objective grounds" that he/man
was more comprehensive, but it was not taken up avidly by the whole population.
But the rule was there, it had been recorded, and it was extremely useful for
the nineteenth century grammarians who vehemently took it up and insisted on
rigid adherence to this rule in the name of grammatical correctness -- another
invention of the dominant group which legitimates their prejudice!
Before the
zealous practices of the nineteenth-century prescriptive grammarians, the
common usage was to use "they" for sex-indeterminable references. It
is still common usage, even though "grammatically incorrect": for
example, it is not uncommon to say "Anyone can play if they
learn" or "Everyone has their rights." Then -- and now --
when the sex of a person is unknown, speakers may use they, rather than
the supposedly correct he in their reference.
To the
grammarians, however, this was incorrect and intolerable. When the sex is
unknown the speaker should use he -- because it is the more
comprehensive term. It is also, of course, the term which makes males visible,
and this is not just a coincidence.
Bodine and Spender stress the arbitrary choice of "he" over
"they" in constructing the grammatical rule.
Bodine and Spender also note the new rule's success by pointing to its
parliamentary sanction in an 1850 British statute. Some have even suggested that the statutory rule lends legitimacy
to the grammatical rule. For example, Cornelia Schuh observes that:
As much as
anything, it is the use in interpretation acts of [the masculine rule] . . .
that has tended to cement the idea in lawyers' minds that "he" is sex
neutral. In other words, this is not a linguistic fact but a convenient legal
fiction, developed at a time when the subjects of legislative statements were
likely to be males.
However, self-perpetuation does not cure the rule's original
artificiality and androcentricity. It remains an arbitrary choice in both
grammar and law. Male terms do not naturally include women.
D. MALE TERMS ARE NOT
INCLUSIVE
In addition to being an
arbitrary choice, male terms are criticized because they cannot guarantee
inclusion of women. This finding is based on the context rule and on judicial
interpretation.
The masculine rule is not absolute but is subject to the context rule.
For example, the first general British legislation provided that male terms
include women "unless the contrary as to gender . . . is expressly
provided." The masculine rule
extends male terms to women, while the context rule reaffirms their use to
refer to men only. The dilemma is to determine, with certainty, which meaning
is intended. On its face, the masculine rule does not secure women's inclusion,
despite reassurances that it does from those who justify male terms.
The second basis for concluding that male terms are not inclusive is
that courts have often interpreted them to exclude women. Case law confirms
that the masculine rule does not assure the inclusive meaning of male terms.
There is considerable overlap among the cases reviewed in the first
phase of the debate, though no one source discusses them all. The literature generally presents the cases
chronologically, showing an evolution of discrimination against women under
male terms. However, I adopt Jocelynne Scutt's approach which looks at the
nature of the male terms in question.
As noted, male terms can be either actual masculine gender words or
words appropriated to the masculine gender through masculine pronouns. A
word-based approach is a more appropriate means to assess whether male terms
include women. I expand on Scutt's
review by including all additional cases from other authors and my own
research.
Among the cases raised in the first phase, only one involved a
masculine gender word. Chorlton v. Lings considered whether a
provision that "every man, shall . . . be entitled to be registered [and
to vote in Parliamentary elections]," included women. The Court refused to apply the masculine
rule stating:
No doubt, the
word "man," in a scientific treatise on zoology or fossil organic
remains, would include men, women, and children, as constituting the highest
order of vertebrate animals. It is also used in an abstract and general sense
in philosophical or religious disquisitions. But, in almost every other
connection, the word "man" is used in contradistinction to
"woman." Certainly this restricted sense is its ordinary and popular
sense.
Thus, the one instance interpreting a masculine gender word excluded
women from its meaning.
The remaining cases put forward to test the inclusiveness of male
terms involved the word "person."
On its own, "person" does not belong to the masculine gender
and could be considered neutral. The
Privy Council in 1930 described "person" as ambiguous, though in
nearly all prior cases, "person" was held to mean men only. In many of these cases, "person"
was appropriated to the masculine gender by association with masculine
pronouns. I have not been able to
locate the statutes referred to in some cases, though it is not unreasonable to
assume they also used masculine pronouns.
Whether masculine pronouns were used or not, in all but three instances
courts refused to rule that a woman was a "person" within the meaning
of the legislation. I discuss the relevance
of these findings below.
The case law supports the conclusion that male terms are not
inclusive. Both masculine gender nouns ("man") and neutral nouns
appropriated as male terms ("person") have been restricted to males.
As Ritchie summarizes:
For over a
hundred years it has been clear that legislation drafted in terms of the male
exposes women to a denial of rights granted to men. Even legislation drafted in neutral terms has often been used to
exclude women from rights and privileges.
Both the context rule and the masculine rule's historical application
undermine any claim that male terms include women. The context rule allows the
possibility that male terms will refer to males only. Courts have repeatedly
found them to do so, evidencing that the concern over the exclusionary nature
of male terms is neither abstract nor hypothetical.
E. INCLUSION DEPENDS ON
BURDEN OR BENEFIT
The initial criticism of
male terms also identifies a pattern in their inclusion or exclusion of women.
Generally, male terms exclude women when the law conveys a benefit or
privilege; they only include women when the law imposes a burden or penalty.
For example, in the cases refusing to interpret male terms to include women,
women had sought and been denied a benefit or privilege -- a university degree,
the right to vote, the right to serve in public office, or the ability to enter
a profession. Conversely, with only one
exception, the cases which did include women subjected them to fines or
imprisonment.
This benefit/burden dichotomy is not a new revelation of the debate.
In 1907, Charlotte Stopes noted: "The lawyers of the 19th century have
decided for us that the word 'man' always includes 'woman' when there is a
penalty to be incurred, and never includes 'woman' when there is a privilege to
be conferred." However,
recognition did not prevent the pattern continuing through to the twentieth
century.
The initial criticism thoroughly reviews the cases on both sides of
this benefit/burden dichotomy. For
review purposes, I will therefore illustrate the dichotomy with only one
case. De Souza v. Cobden
exemplifies the dichotomy as it both included and excluded women as
"persons." Cobden was duly
elected to the London County Council and her election was not challenged within
the limitation period. The Court ruled
that Cobden, as a woman, was not a "person" qualified to hold the
office. However, the Court had no hesitation in ruling she was a
"person" liable to a fine for the unqualified exercise of a public
office. Thus De Souza v. Cobden illustrates the double prejudice
women experience in the interpretation of male terms.
The finding that male terms exclude women from benefits while
including them under burdens clearly shows male terms as an equality issue.
While the first two arguments challenged the origins of male terms and their
alleged inclusiveness, this criticism links male terms and substantive
discrimination against women, locating inequality in the language of the law.
However, as I discuss in Part III Male Terms Are Not Discriminatory,
this reliance on historic authority would be used to counter the claim that
male terms remain a source of discrimination.
F. REFORMING SEXIST
LANGUAGE
Having set out why male
terms are unacceptable, the logical outcome is to recommend their reform. I have alluded to the fact that the analysis
of sexist language changes as feminist theory evolves. One aspect that changes
is the perception of sexist language. As
Cameron asks, "is sexist language just an offensive reminder of the way
the culture sees women, as nonentities and scapegoats? Or is it positively
harmful in and of itself? Can it be reformed, and if so, should it
be?" According to Cameron, some
view sexist language as yet another symptom of a patriarchal society; others
view sexist language as an independent cause of oppression. This basic division in turn shapes the
approach to reform.
The early feminist criticism of male terms considers that sexist
language is a symptom of a larger problem. For instance, Ray Stilwel observes
that, within a system that has "a need to include women under
male-specific legislation" but lacks a "corresponding need to include
men under female-specific laws," the choice of male terms is logical. This pre-existing sexism facilitates male
terms being accepted as the norm. Or as de Jong puts it, "interpretation
statutes actually reinforce the oppression of women rather than alleviate
it."
The case law analysis presented by those who oppose male terms also
casts sexist language as a symptom. For
example, judicial prejudice is found to play a key role in interpreting male
terms. For example, Ritchie states:
We have seen
that judges, under the influence of openly prejudiced opinions about the mental
capacity and the place of women, have deliberately chosen from two possible
views of the common law the one which denies women equality with men.
Scutt also considers that external sexism directs male terms'
interpretation:
Because the
persons in charge . . . already had the rights, benefits and privileges conferred
by laws, they had no overriding interest in ensuring that these rights,
benefits and privileges were conferred upon those outside their sphere. Indeed,
their interest would appear to be to the contrary. Power and privilege were to
be confined to men, in their interests.
Thus, both the initial choice of male terms and their subsequent
interpretation simply manifest the overriding sexism of society.
How sexist language is perceived determines the approach to
reform. A key dividing line between the
initial criticism of male terms and later theory on the maleness of legal
language is whether the law can be used to effect reform. The initial criticism
relies on the law as a mechanism for its own reform, believing male terms are a
symptom of external sexism. Reform is
possible through repealing the masculine rule and changing drafting
practice. These are symptomatic cures
designed to remove male terms. They do
not address the underlying cause of sexism, a problem requiring separate
substantive reform.
In addressing sexist language as a symptom, however, the initial
criticism suggests two different approaches to implementing internal reform.
The first approach recommends repealing the masculine rule and replacing it
with a two-way rule, a rule that additionally provides that words importing the
feminine gender include males. This first approach would also adopt gender
neutral language in drafting. The
second approach recommends that the masculine rule be repealed without
replacement and that drafting expressly include women. Rewriting the legislation in Re Kitson
illustrates the difference in these two approaches. The first approach produces "every person who desires an
appointment to act as a Public Notary shall satisfy the Court as to that
person's fitness and qualification."
The second approach produces "every person who desires an
appointment to act as a Public Notary shall satisfy the Court as to his or her
fitness and qualification." Each
approach has been adopted in various jurisdictions. For example, Canadian, Australian, and New Zealand policies have
endorsed the first approach and recommend gender neutrality by repeating the
noun. More recently, however, "he
or she" has been accepted for use in specific situations.
In summary, the three arguments initially raised against male terms
highlight the overt male bias of legal language. Male terms neither naturally
nor logically include women. Nor does artificially extending their meaning
ensure women's inclusion; both the context rule and judicial consideration
refute the claim that male terms are inclusive. Moreover, when male terms do
include women it is likely to be for the purpose of imposing a penalty. In
contrast, male terms consistently exclude women from benefits and privileges.
However, the initial criticism of sexist language does not maintain that male
terms are the cause of these problems. Instead, male terms are considered
symptoms of societal sexism. This characterization shapes the recommendations
for reform, aiming primarily to remove male terms.
III. MALE TERMS ARE NOT
DISCRIMINATORY
In response to the
feminist criticism that legal language is sexist, those who justify male terms
maintain that language does not discriminate against women. They raise four arguments
to justify the use of male terms. However, the recent shift from male terms to
gender neutral language evidences insufficient justification for their
continued use.
Those who justify male terms intend not only to defend their past use
but also to deflect the demands for change.
As noted, male terms are often a matter of masculine pronouns. Consequently, some of the justifications are
specific to masculine pronouns, while others apply across the broader category
of male terms.
…
In summary, those who justify male terms maintain that the masculine
rule is simply a convention and not inherently sexist. As such, they conclude
male terms do not discriminate against women.
This leads to the assertion that language reform is trivial when there
are "real" injustices to address.
The lack of an adequate substitute for male terms further demonstrates
that criticizing legal language is pointless.
Moreover, in rejecting alternatives, those who justify male terms reveal
the low value they attribute to non-sexist language. The alternatives are
rejected for being wordy, unfamiliar, ambiguous, or possessing some other
perceived fault. This shows that
concision, familiarity, and clarity are valued over language that does not
exclude women.
IV. POLARIZING THE DEBATE
I have set out the main
arguments on each side of the sexist language debate. However, there is little
correspondence or rebuttal between them…
While one side demonstrates how male terms have excluded women from the
law, the other ignores this evidence of inequality and frames the problem as a
mere linguistic phenomenon. …
In summary … the sexist language debate arrives at an impasse over the
effect of male terms on women's equality. I have suggested that later theory
resolves this impasse. … Although later theory does not identify this impasse
in the sexist language debate, by drawing law and language together it
evidences how and why male terms continue to be discriminatory towards women.
However, the division over the responsibility for male terms also suggests a
further means to bridge the two sides. While the opposition to male terms
stresses their arbitrary choice to address a perceived defect in the English
language, they do not independently challenge their adoption in legislation. For example, if male terms were commonly
understood to include women in legal contexts, there would be no need to have
enacted the masculine rule. Thus, while
the use of male terms in general language is beyond the law's control, the
decision to enact the masculine rule and make male terms the legislative
standard clearly falls within the borders of legal responsibility. Male terms were not an embedded trait of
legal language before the masculine rule:
they were written into the law after the rule. Recognizing the masculine
rule's historical background and how male terms become embedded in the language
of legislation also lends support to the later theory.
V. LEGAL LANGUAGE IS
INHERENTLY MALE
As the practice of using
male terms to represent women is now widely discouraged in legal language
generally, and in legislation specifically, this suggests that the impasse in
the debate has been resolved in favour of those who oppose male terms. Later
feminist theory allows the debate to move forward by drawing law and language
closer together and locating inequality in the current text of the law.
One of the effects of the masculine rule is that it makes women
invisible in the statute book by writing them out of the language of
legislation. As male terms can be used
where laws apply to both sexes or to men only, female terms need only be used
when the law does not apply to men. However, invisibility is hard to describe
as a concrete legal problem. The initial feminist criticism of male terms
relied on historic case law as objective proof that male terms excluded women.
In turn, those who justified male terms implicitly demanded similar proof of
how male terms exclude women today. Though ambiguity regarding which laws apply
to whom should disappear with the assumption that all laws apply equally to
both sexes, later theory accepts that legal language remains problematic for
women. Radical and postmodern feminism analyze how legal language continues to
exclude women despite advances towards substantive equality.
A. EVOLVING FEMINIST
THEORY
The starting point for
the analysis of why legal language remains a problem is to recognize the
subjective impact legal language has on women. This "new" evidence of
how legal language continues to discriminate against women resolves the impasse
in the debate.
Later theory incorporates personal experience to explain how legal
language alienates women despite guarantees of substantive equality. Including personal narratives uses the
feminist methodology of consciousness raising.
Consciousness raising reveals the common thread in personal experiences
in order to recognize their broader impact and cause. The common experience emerging from women's accounts of legal
language is that it does not include women, nor are women in control of the language
they must use within the law.
Griffith offers an example of her experience with legal language:
It seemed
apparent to me that "the law's favourite creature," a
"reasonable man," did not include women. I needed only to look at the
historical role of women in the law to arrive at that conclusion. However, my
statement to that effect during a discussion in my Feminist Legal Theory class
met opposition, so I stopped to think about it. . . .
The second
time I noticed the exclusion was in the Feminist Legal Theory class discussion
on Roe v. Wade, when a comment was made regarding Blackmun's
introduction to the history of abortion using "man's attitudes toward the
abortion procedure over the centuries." The speaker felt that her
attitudes as a woman were not included in Blackmun's opinion and that, in this
context, man did not also mean woman.
These
experiences reinforced my belief. Common usage illustrated that "man"
did not include the female sex, and judicial decree made clear that
"person" did not include women. I decided to investigate this
language of the law that excluded women.
As Griffith's account illustrates, where women's experience differs
from the norm presented in legal language, dissonance and alienation result.
There is also a reluctance to recognize women's experience as legitimate. For
example, Griffith discounted her discomfort with legal language until it was
externally confirmed by another woman; she then sought to validate her
experience by further investigation. Recounting experiences such as this
illustrates how language is both socially constructed and socially
constituting.
B. LOCATING INEQUALITY
Having recognized that
legal language often continues to alienate and exclude women, the next step is
to determine why. Later feminist theory acknowledges the inherent power of
language to shape thought as a factor in sexist usage. Theories connecting
language with how we perceive, or indeed, how we structure reality have played
a significant role in linguistics and philosophy throughout this century. While allusions to the power of language are
frequent in the literature opposing male terms, those seeking to justify male
terms largely ignore this body of thought.
Determining why legal language excludes women involves an analysis
that looks beneath the surface of a text to include the factors that shaped its
creation. Lucinda Finley explains the necessity for such an analysis:
By always
referring back to what has previously been defined, by building on precedent,
legal language tends to stabilize and reflect the status quo, rather than to
reach for radical understandings. Understandings that do not neatly match the
existing definitions are suspect as radical, unthinkable, unexpressable, and
unreachable by legal language.
Because legal
reasoning and the language by which it is expressed have the power to construct
and contain individual and cultural understandings of situations and social
relationships, they can inhibit change. In light of this power, those who seek
to use law to help empower and positively change the status of a group such as
women must, in their theory and practice, be concerned with the origins,
nature, and structure of legal language and legal reasoning. To tame the beast
you must know the beast. Thus, a crucial project for feminist jurisprudence
must be to ask constantly and critically who has been involved in
shaping law, in selecting and defining its terms, and in deciding what is and
is not one of those terms. Whose understandings, philosophy, and world view are
imprinted on law? Consequently, how neutral and how inclusive is the
structure of legal reasoning?
By acknowledging this relationship between language and thought, it
becomes clear that there are no mere issues of language.
If the language which women must use to describe their experience in
legal reality was constructed in disregard of these experiences, then language
becomes an impediment to substantive equality.
Thus, as Busby suggests we must ask "What is not being said? What actors are not named? What are readers
being encouraged to imply? Is male
dominance encouraged or assumed?"
The legal vocabulary offers a brief example of this form of analysis.
For example, legal language lacks words derived from and describing women's
experience. As Busby notes,
"without a word to describe an experience, it might be difficult to
imagine that the experience has a basis in reality." She offers the example of sexual harassment;
before "sexual harassment" became an accepted term, it was difficult
for a woman to describe her experience as one with legal consequences. Without adequate words to define their
experience, women's stories may be altered by the available vocabulary. Thus,
even at the basic level of vocabulary, legal language may lack the neutrality
attributed to it.
As seen in the example of legal vocabulary, a critical approach to
legal texts reveals why legal language alienates women. Legal language
alienates women because it is inherently male. It not only makes them invisible
through the use of male terms, but also because its neutrality has been
constructed by a male perspective. As Finley concludes:
The language
of neutrality and objectivity can silence the voices of those who did not
participate in its creation because it takes a distanced, decontextualized
stance. Within this language and reasoning system, alternative voices to the
one labeled [sic] objective are suspect as biased.
As women's experience has not shaped the standard it remains forever
outside the standard. Neutrality is thus doubly dangerous in creating a false
sense of inclusion and perpetuating a discriminatory male standard.
…
VI. CONCLUSION
The use of male terms in
legal language, particularly in legislation, has generated much discussion. In
this article I have summarized the three phases of the sexist language debate
as it relates to legal language. Male terms were initially criticized as
sexist. They were arbitrarily chosen and offer no guarantee of women's
inclusion, except when the law imposes a penalty. This criticism met the
argument that male terms do not discriminate against women. They are merely a
linguistic phenomenon. Though some individuals find them offensive, they have
no substantive legal effect. Moreover, it is beyond the law's power to replace
them. This failing to recognize male terms as an equality issue created an
impasse in the debate.
To some extent, the debate over sexism in legal language also
represents a case study in the evolution of feminist legal scholarship. An
initial period of feminist criticism met with resistance and the
recharac-terization of the issue as harmless. As women bring forth
"new" evidence that the problem remains a source of harm, new
theories evolve to reanalyse the problem and to bring about a solution.
Drawing on radical and postmodern feminism, later theories identify
legal language as a male language. The masculine rule made women invisible in
the statute book and contributed to a male standard in the law's application.
By demonstrating how legal language continues to alienate women despite
improvements in women's legal status, later theory bridges the gap between the
two sides of the sexist language debate. Male terms are not a problem of the
past but an enduring aspect of a legal language that has been shaped by a male
perspective. As long as the language of the law favours men over women, women's
equality is contingent upon women passing as honorary men. In contrast,
adopting language that includes both sexes equally advances equality on an
unbiased standard.
See further:
Deborah
Cameron, Feminism and Linguistic Theory, 2d ed., (New York: St Martin's
Press, 1992) at 2.
Marguerite
Ritchie, "Alice Through the Statutes" (1975) 21 McGill L.J. 685;
Elmer
Driedger, "Are Statutes Written for Men Only?" (1976) 22 McGill L.J.
666
Marguerite
Ritchie, "The Language of Oppression -- Alice Talks Back" (1977) 23
McGill L.J. 535;
Ray Stilwel,
"Sexism in the Statutes: Identifying and Solving Gender Bias in Legal
Writing" (1983) 32 Buffalo L. Rev. 559;
Jocelynne
Scutt, "Sexism in Legal Language" (1985) 59 Aus. L.J. 163;
Katherine de
Jong, "On Equality and Language" (1985) 1 C.J.W.L. 119.
Dale Spender, Man
Made Language, 2d ed. (London: Pandora Press, 1994) at 148-49
Cornelia Schuh
et al., "Sex and Gender in Legislative Drafting" in Uniform
Law Conference of Canada, Proceedings of the Sixty-Eighth Annual Meeting
(Winnipeg: 1986) 90 at 91.
Charlotte
Stopes, The Sphere of 'Man' in Relation to that of 'Woman' in the
Constitution (London: T. Fisher Unwin, 1907) at 5.
Mary Ellen
Griffith, "Sexism, Language and the Law" (1988) 91 W. Virginia L.
Rev. 125,
Lucinda Finley, "Breaking Women's Silence in
Law: The Dilemma of the Gendered Nature of Legal Reasoning" (1989) 64
Notre Dame L. Rev. 886.