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Editorial Advisory Board: Bad legal writing – the gendered contract

One of The Daily Record Editorial Advisory Board members was recently reviewing a contract to renew employee retirement benefits. The member was surprised that in 2020 a large national company would provide a contract that used all male pronouns, with the requisite language at the beginning of the contract that he equals she.

When the company was challenged about using this out-of-date practice, the member was told it was for ease of readability. Right, a contract with over 50-plus pages of dense, federally required language otherwise would suffer a dramatic reduction in friendly reading if it updated its sexist language.

As a result, the member began to shop around for another company to give business to.

If you search “legal writing” and “using gender neutral pronouns,” it clearly demonstrates that the time has come to declare that gendered language has lived its time and should be replaced with language that doesn’t unnecessarily force over half of the population to pretend that “he” somehow ever represented “she.”

The National Law Review, the ABA Journal, Thomson Reuters, State Bar of Wisconsin, the Legislation Law Prof Blog, even the Department of Justice of Canada and England’s Law Society Gazette have recently chimed in to say the time is long overdue to no longer rely on an old practice that doesn’t work in today’s society.

Over 50% of law students are women and nearly 40% of lawyers. Perhaps there was a time when “he” was “he” because all of the lawyers in the room were men, but that time is long gone. We would encourage our fellow legal writers to contemplate going one step further, to consider drafting legal documents that would also include individuals who do not identify under either gender moniker.

We declare unnecessary gendered language in legal writing and contracts to be dead. Yes, it can be inconvenient to find another alternative, but we are attorneys, we can handle this slight writing challenge.

Even if you personally don’t see a problem with using gendered language, you might want to think again.  It’s likely the right thing to do for your bottom line, as you never know if your next client is going to be like our board member who took her business elsewhere after reading a gendered contract.

Editorial Advisory Board members Arthur F. Fergenson and Julie C. Janofsky did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

Julie C. Janofsky

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

 

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