The Use of Pronouns in Contract Law

September 20, 2023

To ‘He’ or not to ‘He,’ that is the Question

The Use of Pronouns in Contract Law

When it comes to drafting legal contracts, traditionally, professionals have made use of masculine pronouns when referring to parties, regardless of their singular or collective genders. While the use of this gendered language has previously been accepted, it is falling further into disrepute as a result of the biases and preconceptions that are part of male-dominated language terms (van Eck, 2022).  

And so, in a world where the concept of gender identities is changing, and classification is not as simple as being either male or female, the question that arises is whether a more concerted effort needs to be made by legal practitioners to use language that refrains from making sole reference to the male and female genders, in order to reflect our diverse society?

Some may argue that the introduction of gender-neutral drafting may create uncertainty or confusion within contracts, which by their very nature demand clarity and unambiguity (Draper, 2020).

However, given the intricacies and complexities that legal practitioners are faced with when it comes to contract drafting, it is not unreasonable to expect them to approach drafting in a gender-neutral manner.

What is the Significance of Gender Pronouns?

The use of pronouns are used to convey and affirm gender identity. And some individuals whose gender identity doesn't fall within binary constructs, like genderqueer or nonbinary individuals may choose gender-inclusive pronouns like "they" and "them".

Using a person's preferred pronouns provides gender affirmation, is inclusive, fosters trust and indicates a safe and tolerant environment. In contrast, misgendering an individual is disrespectful, hurtful and invalidating.

In 2019, Merriam-Webster updated the definition of “they” in their dictionary to include “used to refer to a single person whose gender is intentionally not revealed” and “used to refer to a single person whose gender identity is nonbinary.”

A Constitutional Right

It is imperative for legal practitioners to uphold the constitutional right of all South Africans to be treated equally, and not to be unfairly discriminated against on grounds of gender, sexuality, and sexual orientation (section 9 of the Constitution of the Republic of South Africa, 1996).

This is a powerful means to normalise the fact that not everyone’s pronouns correspond with their gender, and aids in minimising harm for transgender, genderqueer, and non-binary people. It further ensures that everyone is shown the necessary respect, and contributes to the creation of an inclusive environment.

Clear & Inclusionary Language

A person’s dignity and very identity can be inextricably linked with their gender. Legal practitioners are presented with an opportunity to make sure that all South Africans are provided a safe legal space to exist alongside each other, which will only be made possible once inclusionary language is used for genders identifying as both binary and non-binary.

This can be achieved by introducing different drafting techniques and contractual approaches and doing away with past practices of gender-based language. Ultimately, language usage is a legal practitioner’s most powerful tool, and accordingly, the contract drafter has a duty to make use of language that is clear as well as inclusionary.

Due to the fact that our language is living and forever changing, it should reflect the way in which we communicate with others and the society in which we live (Draper, 2020).

Witz Inc is committed to advancing inclusivity and recognising the rights of non-binary individuals. Should a client request a gender-neutral contract, we are more than happy to comply. We proudly stand with the LGBTQ+ community in promoting diversity, equality, and justice.

Please note: The information contained in this article is for information purposes regarding matters of topical interest and does not constitute legal advice.