Making women disappear from the law, one one word at a time
Last week the government introduced a Bill to enable female ministers and shadow ministers to take maternity leave without having to resign their posts. The legislation is being rushed through because Attorney General Suella Braverman is due to give birth soon.
As many have commented, these provisions are long overdue.
Joeli Brearley, chief executive and founder of campaign group Pregnant then Screwed said it is “total insanity” it has taken 103 years for the government to recognise women cabinet members may have babies. Fawcett Society CEO Felicia Willow said “No woman should be forced to give up work due to maternity, and we hope that we will also see paid cover for MPs follow suit urgently.”
But the Ministerial and other Maternity Allowances Bill is written in a strange language that makes no mention of women; those adult human females whose needs it is belatedly recognising.
Like parts of the NHS websites it studiously avoids the word woman or female pronouns and talks about a “person [who] is pregnant” and a “person [who] has given birth to a child” as though this might be a situation that Boris Johnson or Jacob Rees Mogg, or Winston Churchill or Benjamin Disraeli before them, might have found themselves in.
This talk of pregnant people contrasts with the Equality Act 2010 which talks about pregnancy and maternity using the ordinary language of “woman”, “she” and “her”.
All such female talk has been expunged from this new Bill and its accompanying notes. The explanatory notes refers to female ministers throughout using the awkward plural indeterminate “they”. For example;
“The Minister on Leave would be able to access papers they were able to access in their previous role “
Is this what was intended by “gender neutral drafting”?
Since 2007 it has been government policy to use “gender neutral” language in legislation. As Jack Straw said, as Leader of the House, this was a move away from the previous situation where “male pronouns are used on their own in contexts where a reference to women and men is intended”.
As Meg Munn MP, said:
“It may seem a small thing in one sense, but language is important. We have a society in which we believe men and women are equal, so why shouldn’t the law refer to us equally?”
Of course this policy was never meant to refer equally to men or women, where only one sex was meant. While gender-neutral language can be positive this does not mean erasing all language about the sexes. The CEDAW Convention on the Elimination of All Forms of Discrimination Against Women makes this clear.
Human Rights organisations internationally often raise concerns about the absence of gender specific language in national laws and international agreements:
Evidence shows that by neutralising the language the actual issue is also being neutralised. It is therefore important that the language applied in the legal framework is specific and clearly demonstrates the intend of the law.
As the international NGO Plan International argues clear language about the sexes is critical for protecting women and girls rights.
Use of gender-specific language rather than gender-neutral language must be standardized in international agreements and national policies
That the UK government did not intend to erase women from legislation through gender neutral drafting is shown by the use of straightforward sexed language in relation to pregnancy, maternity and breastfeeding in the Equality Act 2010.
Drafting of legislation is overseen by the Office of the Parliamentary Counsel They produce official Drafting Guidance makes clear that gender neutral drafting doesn’t mean that “man” and “woman” should never be used. It says:
[by gender they mean sex]
Nothing in the guidance says not to use sex-based nouns or pronouns where they are appropriate.
Giving birth is not like chairing a meeting. It cannot be done by a person of either sex. When it comes to words and roles like mother, father, pregnancy, rapist, abortion, “man” and “woman” are useful words and are not interchangeable.
When it comes to pronouns, it would not make sense to refer to pregnant Ministers as “he or she”. There is no need for the indeterminate “they”, as if there was uncertainty as to whether Yyvette Cooper or Ed Balls might be the “birthing parent” of their children.
Why do they want to legislate for “pregnant people?”
Perhaps this tortured and awkward language is simply the result of a junior drafter getting the wrong end of the stick about what “gender neutral” drafting requires and mechanically going about replacing the words “woman” and “she” with “a person”, even where it reduces clarity. In which case it might simply be fixed like a typo.
Or perhaps it reflects that the drafter, and their bosses, were frightened of saying “woman”. Perhaps they have picked up the idea that ordinary language about sex is controversial, having seen the opprobrium heaped on the head of women such as JK Rowling who seek to retain the word woman to talk about female people:
Perhaps they had read the Law Commission proposal on reforming the Communications Act which, shockingly, quotes JK Rowling’s tweets as examples of the type of thing that could potentially be a criminal offence in the regime they propose creating.
Or maybe it is something even more concerning.
Why are the government lawyers working on “Stonewall Law”?
Perhaps the drafters were not just confused, or frightened. Perhaps they are exponents of “Stonewall Law” actively trying to erase sex based language from legislation before legislators even see it?
In 2019 the Office of the Parliamentary Counsel (responsible for drafting laws) and the Government Legal Department, responsible for advising the government on the law, collaborated with Interlaw Diversity Forum and Global Butterflies to produce a co-branded guide on “gender neutral drafting” for lawyers. The Guide bears © Crown copyright but I cannot find it on the .gov website. The Government Legal Department is also a Stonewall Champion.
This UK Government/Interlaw/Global Butterflies guide on gender neutral drafting has a different aim than that stated by Jack Straw when the policy was established; recognising equality between men and women. Instead it aims to promote “inclusion across the gender identity spectrum”.
Interlaw Diversity Forum is a private group that helps law firms improve their rating on Stonewall’s Equality Index . Global Butterflies is a “Corporate Trans & Non-binary Inclusion Training & Consultancy” which promotes the same approach. Neither of them show any sign of considering whether the inclusion policies they recommend to employers (including allowing males into the category and spaces for women and avoiding recognising sex) might lead to discrimination indirect against female staff, religious staff, disabled staff or any other group. Their only concern is that everyone must be forced to validate gender identity.
“Stonewall law” takes issue with any use of sex-specific terms, as Barrister Naomi Cunningham writes, Stonewall’s feedback to one client was that the language of their HR policies was not inclusive enough because:
“use of Mother and Father has not been explicitly stated as inclusive of all trans identities. We would recommend using a gender neutral term, such as ‘parent who has given birth’ or ‘new mothers and other pregnant employees’… “
The Parliamentary Counsel/ Government Legal Office branded publication states that it is based on the official guidance. But it doesn’t reproduce it faithfully. It provides a slight but significant alternative formulation:
The distinction “for a person who is not necessarily of that gender” [i.e. sex]is absent.
This edit changes it from a position of “gender neutrality” in situations where the sex of the person doesn’t matter, to erasing sex where it matters and replacing it with the idea of a spectrum of gender identities.
There is no sign that the Office of the Parliamentary Counsel or Government Legal Office consulted with any wider groups about this.
Thus, a piece of official guidance on drafting legislation, designed to support equality between the sexes has been re-purposed to erase sex from the language of the law altogether and present a spectrum of gender identities as if that was the law.
The institutions of state whose responsibility it is to to draft clear, coherent, accessible law and to help the government to govern well, within the rule of law have instead put themselves, and their institutional reputations, at the service of a lobby group seeking to erase the protected characteristic of sex and replace it with “gender identity”.
Sex matters: language is important
It shouldn’t be impossible to correct the over-enthusiastic gender neutralisation that replaced the word “woman” and the pronoun she with “A person” if someone would be brave enough.
Either it is a simple mistake, in which case it should be corrected.
For the word “person”, replace “woman”
Or it is a political move to say that “women” is not inclusive enough to be used to refer to the class of people who can get pregnant. In which case it cannot simply be waved through in a hurry because there is a woman due to give birth soon (as women have always done and will continue to do; whether they are allowed a name or not).
If we cannot say that women can get pregnant, we cannot say that men can inseminate. We cannot say that (some) men rape. We cannot say why disaggregated crime statistics matter. We cannot say why there is a problem with putting males into women’s prisons, refuges or hospital wards (perhaps they should be called “people’s prisons”?).
Without clear words for the two sexes, and the right to use them without fear, we cannot say that lesbians are women who love other women, or that gay men love other men. We cannot say clearly that a woman or girl has the right to ask for a female doctor or chaperone. We cannot say that it is not “conversion therapy” for clinicians to carefully work through why some young people feel distress about their sex. We cannot say that a child can accurately describe the man who abused them. We cannot object when the state forces a woman who has been raped to call her rapist “she” in court (as has already happened).
As Meg Munn MP said in 2007 when introducing “gender neutral drafting”: