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The Gender Politics of Legal Language and Its Implications

Introduction

Discriminatory legal undertones in legislations and their interpretation contribute to apathy towards the social and political subjugation of women within the traditional court system. The courts and the lawmakers are further influenced by the existing orthodox stereotypes about women in society.

Courts are interpreters of law; however, they primarily work within the language prescribed in legislation. If legislation is inherently patriarchal the same bias shows up in judgements since the language used remains the same. It is painfully clear that patriarchy pervades everywhere, including the Apex Court. Therefore, there is a globally recognized need to adopt gender-neutral language. Acknowledging this emerging need, the Punjab and Haryana High Court has urged the Union Government to embrace gender-inclusive language and replace terms such as ‘Ex-servicemen’, that undermine gender inclusivity and fail to acknowledge the invaluable contribution of women in the armed forces. This direction comes in light of a broader push in recent years for gender sensitivity in legal and administrative discourse. On similar lines, the Handbook on Combating Gender Stereotypes issued by the Supreme Court (“SC Handbook”) in 2022 is one such landmark step as it identifies the need for eliminating the use of words laden with gender stereotypes in court language. Another notable step in India occurred with the introduction of  The Digital Personal Data Protection Act, 2023 (“DPDP Act, 2023”). This legislation uses ‘her’ and ‘she’ as inclusive pronouns in a bid to highlight the role of women as contributing citizens in the society. However, pressing questions remain: is swinging the pendulum from one extreme to the other an answer? Is using female pronouns truly gender inclusive?

Delving into the gender politics of language within legal discourse, in this article, the authors aim to analyse the interplay of gender and legal language. Moreover, they will be shedding light on the significance of adopting gender-neutral terms in legal drafting while scrutinizing the legislative frameworks and drafting guidelines employed by different countries. The authors assert that amidst the recent push for gender-neutral rape and property laws in India, it is essential to reformulate our existing approach and move forward with a more inclusive stance towards legislative drafting in the country.

The Gender Question in the Legal Language

The need for inclusivity persists across legal language. This can be seen in the Supreme Court’s recent rejection of a petition calling for removal of male pronouns in the Indian Constitution wherein it reasoned that changing previous legislations can be a cumbersome process and may hardly be a feasible attempt. A better decision would thus be to introduce inclusive language in bills, such as the DPDP Act, 2023 using ‘she’ as touched upon earlier. However, while it is appreciated that the Act acknowledges women, using ‘she’ or ‘her’ may simply shift the burden onto other gender, i.e., the women.

An admirable decision of the Court in recognising gender diversity was NALSA v Union of India, which was the first judgement to recognise transgender persons in India ushering in a new sensitivity towards gender inclusivity. It was observed that “gender identity did not refer to biological characteristics but rather an innate perception of one’s gender”. It is this representation which is sought when discussions on gender neutral language arise.

Other countries have also taken steps in this arena, especially in their legislations. In its 2023 legislative session, the South Dakota Legislature in the United States passed the South Dakota Gender-Neutral Constitutional Language Amendment (2024) to remove gender-specific language in the State Constitution and replace it with gender-neutral language. This amendment is scheduled to be put to a vote by the electorate in 2024. As of now, nine US state constitutions make use of gender-neutral language or both male and female pronouns. There are also formal guidelines introduced by various organisations and countries to assist in gender-inclusivity in various spheres. For instance, the United Nations released Guidelines outlining various strategies to assist its staff in employing gender-inclusive language. These guidelines align with the United Nations System-wide Strategy on Gender Parity, aiming to create a workplace environment characterized by inclusivity for all employees. According to the guidelines, precedence should be given to ‘Ms.’ over ‘Mrs.’ as the form of address consistent with their gender identity. This is because the former is more inclusive and can refer to any woman, regardless of marital status. Moreover, employees are suggested to reverse the gender of designation or terms to recognise if they are using discriminatory language. For example, replacing the word ‘women’ with ‘men’ in the sentence: “Men cannot do two things at the same time”, makes it sound odd and highlights the discriminatory stereotypes towards women.

On similar lines, the European Parliament adopted multilingual guidelines on gender-neutral language in 2008. Also, in 2019, the United Kingdom introduced a Guide to Gender Neutral Drafting with the objective of standardizing gender-neutral drafting practices within the legal profession. The guidelines suggest that there are three techniques available to avoid gender-specific pronouns: (1) Repeat the noun; (2) Change the pronoun; (3) Rephrase to avoid the need for a noun or pronoun. For example, using ‘they’ as the substitute pronoun or using ‘who’ instead of ‘if he’ in sentences: “A person who commits an offence…”, rather than “A person commits an offence if he”.

One country that has shown admirable dedication to the pressing language question, even before this was discussed widely, is Malta. In its Act XIX of 1991, Malta introduced provisions which provided security against sexism, such as amending Article 14 of its Constitution, which after the new Act, reads as “The State shall promote equal right of men and women to enjoy all economic, social, cultural, civil and political rights and for this purpose shall take appropriate measures to eliminate all forms of discrimination between the sexes by any person, organisation or enterprise; the State shall in particular aim at ensuring that women workers enjoy equal rights and the same wages for the same work as men”.

 Act XXI of 1993 was worded in gender-neutral language to introduce the idea of equal partners in marriage, rather than using terms such as ‘husband’ or ‘wife’. Malta also brought out an act titled, Gender Identity, Gender Expression and Sex Characteristics Act. For example, the Act defines “gender identity” as referring to each person’s internal and individual experience of gender, which may or may not correspond with the sex assigned at birth. To have an act particularly pertaining to gender diversity and identity is extremely progressive in a world predominantly functioning on patriarchy and a vocabulary catering to male convenience.

Why Gender Sensitive Language Can be Revolutionary?

It is crucial to understand the reasons for discussing gender sensitivity in language and the multifaceted implications of the same. Language plays a key role in shaping our thinking patterns which exerts a profound effect on our decisions. The evolving nature of grammar prompts the question, what constitutes reasonable extent of change? Critics have argued that gender neutrality in language distracts the reader from more substantial legal issues. Moreover, it is culturally insensitive to compel individuals to conform to specific language usage; such changes are not eloquent, and they increase the cost of legislation.

While the authors agree that a superficial change may have the effect opposite to what is intended, it may be asserted that having a multi-gendered approach to language has significant advantages in ensuring a more inclusive society. Gender neutral language is inextricably linked with the emergence of gender-neutral laws. There have been proposals to render Section 376, which punishes the offence of rape, as gender neutral. Critics argue that making the provision gender neutral would ensure protective rights and justice for male and third gender victims of sexual assault. However, implementing this might lead to an influx of false accusations against women, and further open avenues for potential misuse. It is imperative to balance the use of gender-neutral language with equity. Therefore, it is proposed that a separate provision be introduced to provide relief to victims of other gender identities, while also protecting the rights of women as mandated by Article 15(3) of the Constitution.  While some may argue that introducing a separate provision makes the law cumbersome, however, blindly making laws gender-neutral would inherently undermine the protection of the rights of different gender identities.

Reforms pertaining to gender especially relating to women have also been introduced in property laws across India. In 2021, the Uttarakhand Government amended the Uttarakhand Zamindari Abolition and Land Reforms Act, marking it as the first Indian state to give co-ownership rights to women. The Hindu Succession Act of 1956 was amended in 2005 to confer equal rights to daughters in joint Hindu family property. However, the persisting issue with these reforms is that they often recognize only male and female gender identities, mistakenly assuming that granting equal property rights to women makes the legislation inclusive for all genders.

While these reforms are welcome, there still remains considerable ground to be covered as highlighted in the case of Aparna Bhat v State of Madhya Pradesh. In this case, Justice Bhat addressed the ‘entrenched paternalistic and misogynistic attitudes’ in judgments and orders around gendered sexual violence cases, and laid down guidelines for progressive judgment writing, which suggested gender sensitisation training sessions for all judges including guidelines on usage of appropriate language. As stated previously, the SC Handbook has also laid down detailed guidelines to help combat the challenges prejudiced language poses.

At first glance, relabelling terms may hardly seem worthy, but the authors believe that they may influence the psychological status of oppressed groups. For instance, the term ‘prostitute’ has been replaced with ‘sex worker’ in the SC gender handbook, helping to unconsciously establish the psychological impression of sex work as work and not something stained. By changing the narrative, these measures encourage psychological transformation in a way that is non-threatening and subtle. These measures also encourage sensitivity, they highlight how even seemingly little things like words matter.

Thus, gender sensitive language in the legal system would be revolutionary as it would promote equality, foster inclusivity and dismantle deeply ingrained biases. It would also help usher in gender-neutral laws, leading to a healthy cycle of sensitivity promoting neutrality in laws and these laws assisting in promoting sensitivity further.

Conclusion

The integration of gender neutrality into legislative drafting, such as the usage of the word ‘she’ to refer to a person in the aforementioned DPDP Act, 2023, attempts to address gender-based discrimination. However, there remains much to be accomplished in recognizing the rights of the LGBTQIA+ community within legal language. Simply substituting the word “he” with a marginally more inclusive pronoun fails to adequately address the diverse needs of other gender identities. Not only this, the DPDP Act, 2023 appears to be an isolated case as legislations introduced post the DPDP Act, such as the Multi-State Co-Operative Societies (Amendment) Act, 2023 reverted back to using ‘he/him’ in its wording. The authors further believe that adherence to guidelines in resources like the SC Handbook is imperative during the legislative drafting process, such as using ‘homemaker’ in judgements rather than ‘housewife’ and ‘rape’ rather than ‘forcible rape’ to keep pace with internationally emerging practice.

Additionally, solutions that reduce the readability of a text, such as combined forms of ‘s/he’, ‘him/her’ should be avoided to maintain brevity and intelligibility of law.

As a dynamic concept, language serves as a weapon for influencing society. There is a reason the Department for Altering Language (Newspeak) features so prominently in George Orwell’s dystopian ‘1984’, highlighting the role of language in dictating psychological sympathies. The same rationale underlies the patriarchal structure of language, highlighting ‘a man’s world’. The recognition around the world such as the legislations suggested or brought about in countries like the United States of America and Malta is a welcome step in tackling subjugation. The very fact that such discussions are taking place, even if not implemented on a large scale, is a stepping stone, but more needs to be done. One feasible solution for bringing change in the language of legislations seems to be using ‘they/them’ which has been the historical gender-neutral personal pronoun. For instance, the European Parliament has mentioned the use of gender-neutral job titles and professional functions such as using ‘Chair’ instead of ‘Chairman’ or ‘President’ for both genders. It is imperative for India to embrace a more inclusive approach by drafting legislations in such a manner that they reflect gender inclusivity, which can advance a legal framework that promotes respect for all individuals.

The DPDP Act, 2023, the Punjab and Haryana HC judgement and the SC Handbook are steps in the right direction but more concrete steps such as the Malta legislative Acts are still lacking.  Such progressive steps aid in mending gaps which divide sexes; however, care must be taken that it does not create a false impression of society treating its marginalized people better than it does, through whitewashing vocabulary.

The post is written by Khushi Krishania and Yashvi Bansal, 2nd year students at NLIU Bhopal.

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