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Are Statutes Written for Men Only?
I read with interest Miss Marguerite E. Ritchie’s article Alice
Through the Statutes in your Journal,’ in which she castigates male
legislative draftsmen for demeaning women by writing laws as if
only men existed. She singles out me, and me alone, for special men-
tion, but while I appreciate the honour, I must decline it and plead
not guilty.
There is a slight inaccuracy in her second sentence when she
says that in a Memorandum I wrote over twenty-five years ago on the
drafting of statutes2 I adopted without criticism or comment the
provision of the Interpretation Acta which provides that words im-
porting male persons include female persons and corporations, and
which she likens to excessively artificial definitions such as “‘dog’
includes ‘cat’ “. I did not adopt anything; I simply drew attention to
the existence of this provision. A comment on or criticism of the
substance or policy of that provision would have been wholly out of
place in that Memorandum. However, I do now decline to “adopt”,
for the reason given at the end of this article, but I accept the
invitation to criticize and comment.
Miss Ritchie’s problem is not one that was created’ or is curable
by legislative draftsmen, male or female. It is rooted in a defect in
the English language; it exists in all English speech or writing and
is not confined to legislation.
The problem lies with pronouns. We have common-sex general
words such as person, every person, any person, anyone, no person,
or sexless class words, such as beneficiary, contributor, shareholder,
employee. But in a sentence, whether in a statute or elsewhere, these
nouns must often be referred to by a pronoun. The plural personal
pronouns, they, their, them, are common-sex, but there is no common-
sex personal pronoun in the singular. In statutes the masculine
he, his, him are used and it is this fact that generates the complaint
that male terms are used to apply to both sexes, that legislation is
written as if only men exist, or written in terms of the male.
Otto Jesperson says one of three makeshift expedients must be
used:
1(1975) 21 McGiULJ. 685.
2Memorandum on the Drafting of Acts of Parliament and Subordinate
Legislation (1951), Ottawa.
2aR.S.C. 1970, c.I-23, s.31 (1)(i).
19761
COMMENTS – COMMENTAIRES
if he or she have any (Fielding).
The reader’s heart –
He that hath eares to heare, let him heare (AV).
Nobody prevents you, do they (Thackeray).
English is an uninflected language, and gender declensions have
disappeared except in the personal pronouns singular. Since nouns
do not have gender recognizable by their forms or endings, the
result is that the personal pronouns, which follow natural sex lines,
have become strongly identified with sex.
The situation is quite different in inflected languages, such as
German and French. In those languages gender is not equated to
sex; masculine is not necessarily male, feminine is not necessarily
female, and an inanimate thing could be masculine or feminine in-
stead of neuter. “Gender” says Eric Partridge “refers to words; as
a synonym for sex it is jocular and archaic.”4
Thus, in German, words denoting persons in general without
regard to sex, are masculine gender – Mann, Jeder, Jemand, Nie-
and they must be followed by a masculine pronoun.
mand, Ein –
But the masculine pronoun denotes gender and not sex. Similarly
in French, chacun and un (corresponding to the English one) mean
everybody, but they are masculine gender and the pronoun referring
to them must be masculine in the nominative and accusative. By
way of contrast, however, personne is feminine, although it em-
braces both male and female persons. It must therefore be referred
to by the feminine pronoun in the nominative and accusative; I am
sure no Frenchman would object and he would never associate
this gender with sex.
Old English was also an inflected language with three genders
independent of sex; for example, wif (wife, woman) was neuter,
wifmoon (woman) masculine, mona (moon) masculine and sunne
(,sun) feminine.
The problem in modem English is that it is difficult to dissociate
gender from sex in personal pronouns. In referring to words that
denote persons in general, when sex is inconspicuous or unimportant,
what should we say – he, she, it or something else?
What is the solution? Jespersen’s first example would be hopeless
in statutes, especially since we must add it. No one could seriously
suggest that we must now in our statutes substitute he, she or it
for he; and his, her or its for his; and him, her or it for him. Jesper-
sen’s second example is akin to the usage of the masculine in the
inflected languages, where it denotes only gender and not sex. This
3 Essentials of English Grammar (1950), 193.
4 Usage and Abusage: A Guide to Good English (1969), 130.
McGILL LAW JOURNAL
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is a perfectly correct use of the pronoun. The Shorter Oxford Dic-
tionary, for example, gives person as one of the meanings of he;
and in Funk and Wagnalls Standard College Dictionary, he is defined
as including that person; anyone. Jespersen’s third example, although
common in speech and used occasionally in writing, is grammatically
incorrect. And it would be hopeless to try to speak and write only
with the plural personal pronoun and thus in effect expunge the
singular pronouns from the English language.
A choice must be made. Theodore M. Bernstein, Assistant Manag-
ing Editor of the New York Times has opted for common usage:
The use of their in such contexts is common enough in spontaneous,
casual speech, and even occurs occasionally in the work of reputable
writers. Yet the writer of craftsmanship and taste will reject the gram-
matical inconsistency of the combination of a singular noun and a plural
pronoun. He will examine the possibilities available. They are either to
use his or her or to use simply his. The first alternative is stilted and is to
be shunned except when the issue of sex is present and pointed, as in,
“The pool is open to both men and women, but everyone must pay for
his or her towel”. Commonly, however, the word to be used is his, as the
nearest approach in this imperfect language of ours to a neutral pronoun
in such a situation, Therefore: “Give everyone credit for having the
courage of his convictions”.
Fowler’s Modern English Usage approves of the use of his, which it
says has become a convention of the language.
There are three makeshifts: first, as anybody can see for himself or her-
self; second, as anybody can see for themselves; and third, as anybody can
see for himself. No one who can help it chooses the first; it is correct,
and is sometimes necessary, but it is so clumsy as to be ridiculous except
when explicitness is urgent, and it usually sounds like a bit of pedantic
humour. The second is the popular solution; it sets the literary man’s teeth
on edge, and he exerts himself to give the same meaning in some
entirely different way if he is not prepared to risk the third, which is
here recommended. It involves the convention (statutory in the interpre-
tation of documents) that where the matter of sex is not conspicuous
or important the masculine form shall be allowed to represent a person
instead of a man, or say a man (homo) instead of a man (vir.)o
The masculine singular personal pronoun has been used in
English literature since its very beginnings. Take, for example,
Chaucer’s “The Knight’s Tale”:
And whan a beest is dead, he hath no peyne;
But man after his deeth moot wepe and peyne7 (italics added).
Shakespeare begins scene ii of Act IV of Cymbeline with this
interesting dialogue:
5 The Careful Writer (1973), 351.
GA Dictionary of Modern English Usage 2d ed. (1965), 404.
7Oxford Dictionary of Quotations 2d ed. (1953), 137.
19761
COMMENTS – COMMENTAIRES
Belarius (To Imogen, daughter of Cymbeline);
You are not well: remain here in the cave;
We’ll come to you after hunting.
Arviragus (To Imogen): Brother, stay here;
Are we not brothers?
Imogen: So man and man should be (italics added).
Or, in proverbs we find:
Every man for himself
He laughs best who laughs last
He who hides can find
He who pays the piper may call the tune.
No one would say that proverbial wisdom applies only to half the
population.
But why he? Why not she or, as in the French, sometimes he and
sometimes she? The answer is probably that English simply follows
its ancestor languages. A comparison of English and its closest Euro-
pean relative, German, is very illuminating I have selected a passage
(John viii.7) from the New Testament, as I believe we can all agree
that Martin Luther and the authors of the Authorized Version or the
Revised Standard Version knew their language.
Wer under euch ohne Siinde ist, der werfe den ersten Stein. (Luther)
He that is without sin among you, let him cast the first stone. (Authorized
Version)
Let him who is without sin among you cast the first stone. (Revised
Standard) (italics added)
In the German, the wer means everybody, but its gender is masculine;
therefore the pronoun der is also masculine because it must agree.
No one who reads the German would ever say or think that it is
addressed to men only. The English has the same meaning; the He
stands for man (homo), and means everybody. The German Mann
has two meanings –
a human being or a male person. In both
meanings it is masculine gender. In English also man may mean a
male person, or a human being of either sex. The masculine gender
here has no sexual connotation whatever; no more than the use of
the neuter gender for girl has in German or the masculine gender
for woman had in Old English.
The situation seems to be that although gender forms and
declensions have disappeared, gender still remains, hidden but never-
theless active in a few situations. The result is that words like man,
one, everyone, each, every person are, just like their ancestors,
masculine gender. The pronoun representing these words must also
be masculine, and all we have available is he, his and him. When
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used in this way, these pronouns indicate the gender of the words
they represent, and have nothing to do with sex. 8
The provision in the Interpretation Act really does not do very
much. The Interpretation Act is not a dog and cat definition; it
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. It is intended to be a rule of gender
or grammar, and not of sex. Removal of “unless the context otherwise
requires” would also not solve anything because it would still be
open to the courts to hold that the meaning or scope of words in a
particular context differs from formal definitions.
Miss Ritchie says there are many examples in the Criminal Codesa
where neutral words (everyone, persons) are used. That is no answer
to the problem. That is the problem. She refers particularly with
approval to section 157 of the 1953-54 Criminal Code, which begins
with the words Every one who. If she will continue reading she will
see that sections 159, 161, 162, 163, 164, for example, also begin with
Everyone who, but in those sections she will find his, him, he and
himself, but no her, hers, she or herself, or it, its or itself.
In the French version of the statutes the word personne, mean-
ing everybody, appears countless times followed by feminine pro-
nouns. No one would say or even think that these provisions are
written as if only women existed. The situation is not that the
English version applies only to males and the French only to
females! Both apply to both as a matter of language.
Although I disagree with Miss Ritchie’s arguments and conclu-
sions, I think she must be commended for bringing this issue to the
fore. I must confess I had never given much thought to this provision
of the Interpretation Act, but now that I have I think that the Statute
Revision Commission for the 1905 Revision made a mistake. Section
7(21) of the Interpretation Act in the Revised Statutes of 18860 read
as follows:
Words importing the singular number or the masculine gender only,
include more persons, parties or things of the same kind than one, and
females as well as males, and the converse.
It was perhaps inelegant to mix number and gender, but at least
the male-female rule was reciprocal.
8In A Dictionary of Contemporary American Usage (1957), Bergen and
Cornelia Evans say that “[c]ompounds ending in man can be applied to women,
as in Madam Chairman and she was a good horseman or a good penman. It
is even possible to say the boats were manned by women” (at p.196).
Sa R.S.C. 1970, c.C-34.
9 R.S.C. 1886, c.1.
19761
COMMENTS – COMMENTAIRES
In the 1906 revision’ this provision of the Interpretation Act was
split in two by the Revision Commission:
31(i) words importing the masculine gender include females;
(j) words in the singular include the plural, and words in the plural
include the singular.
Now the provision became a one-way street, and it is quite under-
standable that women have grounds for complaint because this
provision literally appears to deem women to be men. The 1906
version was carried into the 1927 revision” without change, but was
amended in 194712 to read:
[W]ords
porations.
importing male persons
include female persons and cor-
The main change was the addition of corporations, but because
they are legal persons, “masculine gender” was changed to “male
persons” and “females” to “female persons”, presumably for the
sake of parallelism. This section was carried forward unchanged
into the 1952 revision” and was repeated in the new Interpretation
Act of 1967.14
The present provision would appear to be defective, because it
does not fit the French version of the statutes; a reciprocal provision
is needed. Moreover, a reciprocal provision would put men and
women on an equal footing. Something along the lines of the 1886
provision could do, but it would be desirable to separate number
and gender, as was done in 1906, and provide that words importing
the masculine gender include the feminine, and words importing
the feminine gender include the masculine. However this rule would
not include corporations, and to do so would complicate the provi-
sion to the point of inelegance. A better solution might be simply to
provide that words importing one gender include all other genders;
there could then be no suggestion of discrimination.
An amendment along these lines would not, however, solve the
pronoun problem. We would still be stuck with the English and
French languages as they exist. But such an amendment would assist
in indicating that the masculine in English and the masculine or
feminine in French, according to the respective rules of these lan-
guages, are universal and indicate gender rather than sex.
10R.S.C. 1906, c.1.
“1R.S.C. 1927, c.1, s.31(i).
12 S.C. 1947, c.64, s.6.
‘3 R.S.C. 1952, c.158, s.31(1)(i).
‘4 S.C. 1967, c.7, s26(6).
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The “unless the context otherwise requires” rule would have to
remain. A gender provision could not be absolute, because there
are certainly instances where corporations would not in a particular
context be included, and the same could be said of male or female
persons.
The only other solution is to invent a new series of pronouns, but
that is not something that draftsmen may do; they must take our
languages as they are.
E.A. Driedger, Q.C.*
* Professor of Law, University of Ottawa.
