1st place in the SULS Writing Competition 2021
By Dominic O’Sullivan (JD 1)
To me, onward means progress, embracing change and new ideas. But onwards also means reflecting on the past. Over the past few years, we have seen a substantial growth in awareness of non-binary gender-diverse people, and a drive for inclusivity. As a burgeoning law student, I wonder how the legal profession, as an advocate for both reform as well as protecting our values, will navigate a post-pandemic world where our personal and collective identities are rapidly shifting in new directions.
In February this year, at the start of my Juris Doctor degree, one of the first texts I was made aware of, and undertook to read, was the Australian Guide to Legal Citation (AGLC) (4th Edition). As I was skimming through the pages, one rule stuck out to me. It was Rule 1.9.3, titled Inclusive Language. It is extracted here:
Gender-inclusive language should generally be used. It is preferable to use ‘they’ (and derivative forms ‘their’ and ‘them’) as neutral singular pronouns. It is also acceptable to use ‘he or she’, ‘she or he’ or any derivative form (e.g., ‘his or hers’ and ‘her or him’).
Authors should avoid terms such as ‘the reasonable man’, ‘spokesman’ and ‘mankind’. Neutral terms such as ‘the reasonable person’, ‘spokesperson’ and ‘humankind’ should be substituted.
It may be appropriate to retain gender-specific language where this accurately conveys the intended meaning in the relevant context (e.g., A plaintiff may be liable in negligence to her own foetus while driving)[1].
I resonated with r 1.9.3 as I came across it at a time where dialogue concerning non-binary gender identities was becoming more frequent. While I recognise many Indigenous and Non-Western societies have long recognised genders outside of the binary[2], Western culture has for many hundreds of years imposed a binary gender division between men and women. This was up until recently, when suddenly, public figures were coming out as non-binary. People began featuring pronouns on their social media profiles. All-gender toilets were becoming more common place. I found myself discussing gender and identity with my close friends. There seemed to be a swift and resilient push for recognition and inclusivity of gender-diverse people.
R 1.9.3 is an example of this drive for inclusivity. The rule encourages those engaged in legal writing to use language that is inclusive of gender-diverse people. An easy way to do this is, as explained in r 1.9.3, is to use ‘they’ as opposed to ‘he or she’. Another example includes saying ‘Good evening folks’ instead of ‘Good evening ladies and gentlemen’[3].
The 4th edition of the AGLC was published in 2018 and reflects the increased awareness of gender-diverse people at the time. The first paragraph was a subtle re-writing of its predecessor, Rule 1.11 in the 3rd Edition of the AGLC, which was published in 2010. The original paragraph in r 1.11 is extracted below:
Gender-inclusive language should be used. The words ‘he’, ‘his’ and ‘him’ should not be employed as the supposedly neutral third-person singular. It is acceptable to use ‘he or she’, ‘she or he’ or any derivative from (‘his’ ‘her’ and ‘him’). It is also acceptable to use ‘they’ (and derivatives ‘their and them’) as neutral singular pronouns[4].
You can see that the editors rewrote the rule to emphasise that using they/them/theirs is not only an appropriate alternative to saying ‘he or she’ as a neutral third-person singular pronoun, but is actually the preferred option.
The editors also removed the statement about using male pronouns as a neutral singular pronoun. I suspect this is because it is so obvious that it need not be said. We are all familiar with this custom in older texts, including many older cases we must read in Law school. Undoubtedly, such practices exclude women and non-male identities and re-enforce patriarchal notions.
To me, r 1.9.3 demonstrates that the AGLC editors recognise that not only is it vital to ensure
women aren’t excluded by the language we use in law, but also that non-binary gender-diverse people are not either.
The pandemic has continued, if not accelerated, our growing awareness and acceptance of non-binary gender identities[5]. It has forced many of us into situations we didn’t necessarily plan to be in and to spend more time alone and inside our dwellings than we have ever previously. A positive side effect of this is that we are then allowed the space and time for introspective and self-reflective dialogue. These meditative conversations can be a helpful antidote to the anxiety created by the pandemic. We can harness the fear and uncertainties in the world aggravated by the pandemic to confront the complexity of our own person and challenge our ingrained and unyielding perceptions of self.
I have always identified as a cisgender man, and up until the pandemic, I had never questioned my gender identity. It wasn’t easy for me to come to terms with the reality that, for much of my life, I have often felt uncomfortable with my gender identity. As a result, I have experienced years of shame and self-hatred because of my inability, despite my earnest desires, to comply with the social expectations placed on to me dictating how I should behave, who I should be, what should bring me joy. Recognising this was, and is still, incredibly healing.
There are countless ways society continues to exclude gender-diverse people and impose binary gender norms. Look at gender reveal parties for example[6]. Categories in major film and music award ceremonies are still binary[7], as are sporting competitions such as the Olympics[8]. The other day I found gift cards at a store, one marketed ‘For Her’ which was redeemable at make-up, shoes, and clothing stores, and one ‘For Him’ which was for use at hardware, sports, and electrical stores.
Because of the way binary gender stereotypes are imposed by society, it can lead to bizarre rejections of behaviour that falls outside of them. For example, one time, when I was about 12, I was mocked for putting on lipstick, when in fact I was simply putting on lip balm for my chapped lips (in fairness, it was pink and strawberry scented). More recently, a child asked me why I had piercings in my ears, because ‘Boys don’t have ear rings!’.
As a cisgender person, I find our societies constant imposing of binary gender norms exhausting. I can only imagine how non-binary gender-diverse people find it.
This is not to say that we should throw out the window everything we know about gender and identity necessarily. It is almost important to reflect on the values and beliefs of the past. However, as we become more accepting of the diverse arrays of gender identities, we must be open to collective and personal changes to be more inclusive.
As current and future legal professionals, it is important we ensure we are at the forefront of this movement by challenging ingrained customs and beliefs within legal and educational institutions that not only exclude gender-diverse people but constrain all of us. Being more conscious with the language we use, in our writing and how we speak to others, is a simple and effective way to be inclusive of people of all identities, including non-binary, trans and other gender-diverse people, including people still grasping and understanding their identity. This is particularly so considering misgendering has a real and significant impact on non-binary and trans people’s health and wellbeing[9].
Inclusive language is important across all fields, but I would argue it is of even greater importance in the legal profession. We learn early on in law school about the Rule of Law, an important part of which is ensuring the law is accessible to all and it is applied consistently among different groups of people[10]. How then, can this be achieved if the language used by lawyers, legislatures, judges, and the like, deliberately excludes groups of people? This is why r 1.9.3 is so important.
Much like society’s inclusion and acceptance of gender-diverse people, there is much progress to be made in coming to terms with my own identity. But where once I was terrified of embracing my true self and of not conforming to binary gender expectations, I am now excited by the multiple facets of my personality, and I welcome the ambiguities and uncertainties of my person. What is certain, and which I find comfort in, is that as we collectively move onwards, we can and will become more open to the diverse identities of human beings.
[1] Melbourne University Law Review Association Inc and Melbourne Journal of International Law Inc, Australian Guide to Legal Citation, (Melbourne University Law Review Association Inc and Melbourne Journal of International Law Inc., 4th ed 2018), 28.
[2] Meghan Werft and Erica Sanchez, ‘Male, Female, And Muxes: Places Where A Third Gender Is Accepted’, Global Citizen (Article, 28 June 2016) <https://www.globalcitizen.org/en/content/third-gender-gay-rights-equality/#:~:text=For%20many%20cultures%2C%20however%2C%20the,%E2%80%9Cthird%20gender%E2%80%9D%20for%20centuries>.
[3] Victorian Government, ‘LGBTIQ+ Inclusive Language Guide’, Vic.Gov.Au (Web Page, 3 August 2021) <https://www.vic.gov.au/inclusive-language-guide>.
[4] Melbourne University Law Review Association Inc and Melbourne Journal of International Law Inc, Australian Guide to Legal Citation, (Melbourne University Law Review Association Inc and Melbourne Journal of International Law Inc., 3rd ed, 2010), 25.
[5] Nick Levine, ‘Lockdown Helped Me Recognise My Gender Identity’, VICE (Article, 14th September 2020) < https://www.vice.com/en/article/5dz8zb/lockdown-helped-me-recognise-my-gender-identity>.
[6] Rebecca Schiller, ‘Why the mother who started gender-reveal parties rejects them’, The Guardian (online, 20th October 2019), < https://www.theguardian.com/lifeandstyle/2019/oct/20/why-the-mother-who-started-gender-reveal-parties-regrets-them>.
[7] Stephen Daw, ‘Is it time to retire gendered categories from music awards?’, Billboard (Web article, 25th March 2021), < https://www.billboard.com/articles/news/pride/9545464/awards-shows-gendered-categories>.
[8] Joan Niesen, ‘Quinn: the Olympics first out trans medalist aims for Gold with Canada’, The Guardian (online, 4th August 2021), < https://www.theguardian.com/sport/2021/aug/04/quinn-the-olympics-first-out-trans-medalist-aims-for-gold-with-canada>.
[9] Sabra L. Katz-Wise, ‘Misgendering: What it is and why it matters’, Havard Health Publishing (Blog post, 23rd July 2021), < https://www.health.harvard.edu/blog/misgendering-what-it-is-and-why-it-matters-202107232553>.
[10] Jeffrey Jowell, ‘The Rule of Law and its Underlying Values’, in Jowell and Oliver, The Changing Constitution (Oxford University Press, 6th ed, 2007), 11 - 12.