The 'singular they’ and the legal minefield of gender neutral pronouns - Andrew Stevenson

The recent For Women Scotland case showed how emphasising gender in legislation can lead to a guddle. Most Acts try to avoid gender altogether. The Interpretation Act 1978 states that words importing the masculine gender are taken to include the feminine and vice versa unless the contrary intention appears. In 2007, then leader of the House of Commons, Jack Straw, advised that Parliamentary counsel must adopt “gender neutral drafting” of legislation. In 2018 the Scottish Parliamentary Counsel Office issued similar guidance.

Andrew Stevenson is Secretary of the Scottish Law Agents Society

There is still plenty of older legislation in force which offends against these strictures. The Misuse of Drugs Act 1971 refers to “his possession” and the Road Traffic Act 1988 refers to a person and “the way he drives”. If drafted now, it would say “the way that the person drives”. It would be a sorry day if the phrase were to be “the way that they drive”. The use of the “singular they” is now endemic in literature issued by government bodies such as HMRC. It is a grammatical device detrimental to clarity in many legal documents. The House of Lords debated the subject in 2013. Strong views were expressed, Lord Scott of Foscote saying: “To prostitute the English language in pursuit of some goal of gender equality is, I suggest, unacceptable.”

To avoid the “singular they” may require that lawmakers deploy a singular pronoun that is gender neutral. Alas, none exists in the English language apart from “it” which can be used in relation to animals but would sound dehumanizing in relation to people.

As recently as this year, the Irish Parliament passed legislation using “his or her”, and one sees “he or she” in legislation from Canada, Australia and South Africa, although the most recent Acts do try to avoid pronouns. However, as the Scottish Parliamentary Counsel Office observed, “he or she” fails to accommodate those who identify as non-binary. Hence the term finds no favour in Scotland.

The singular they has found its way into Commonwealth legislation; the Conversion Practices Prohibition Legislation Act 2022, from New Zealand, refers to an “individual” lacking capacity in respect of “their” health or welfare. Those riled by questionable grammar can be disregarded as elitist or stuffy. It is more difficult to brush off problems of ambiguity caused by the singular “they” or “their”. This lack of clarity can be seen in some secondary legislation relating to the UK benefits system.

Bad grammar exists in Scottish legislation too. Take the Student Support (Scotland) Regulations 2022. It says: “The allowance may be paid to the holder or to another person for their benefit”. “Their” is clearly supposed to mean the holder’s benefit, but taken literally it means for the benefit of both the holder and the other person. On the other hand, “his or her” would be ambiguous too as it could mean that the benefit is to vest in the holder or the other person. Perhaps, as in this instance, Acts ought to avoid pronouns altogether and simply repeat nouns.

This seems to be happening increasingly, and there is now a preponderance of nouns, all gender neutral. The Domestic Abuse (Protection)(Scotland) Act 2021 uses “person A” and “person B” to describe scenarios in which there is a protective remedy. In fact, there is now a remarkable prevalence of the word “person”. Quite how remarkable is clear by reference to some Acts passed recently by Holyrood.

One might suppose that it would be challenging to avoid female nouns or pronouns in the Transvaginal Mesh (Cost Reimbursement) (Scotland) Act 2022. However, these are studiously avoided. There are references to the removal “from a person’s body” of synthetic mesh originally implanted through a “person’s vaginal wall”. The possessive pronoun “her” is avoided

The Period Products (Free Provision) (Scotland) Act 2021 provides that such products are to be obtainable free “by all persons” who need to use them.

Paradoxically the Female Genital Mutiliation (Scotland) Act 2020 contains a gender specific adjective in its title and in the orders it creates, but maintains gender neutrality in defining those who are to benefit from such orders; a female genital mutilation protection order is available to a “person”.

It appears that with a few exceptions, such as the Gender Representation on Public Boards (Scotland) Act 2018, the future of legislation may be that “person” is used almost ubiquitously.

Andrew Stevenson is Secretary, Scottish Law Agents Society