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Solicitors looking toward gender-neutral drafting practices

Wills, trusts, shareholder agreements and bylaws impacted
|Written By Anita Balakrishnan
Solicitors looking toward gender-neutral drafting practices
Michele Allinotte says she has been trying to move away from honorifics such as Mr. or Mrs. in legal documents.

Ontario lawyers have been discussing the increased use of gender-neutral pronouns in legal documents.

Michele Allinotte, owner of Allinotte Law Office in Cornwall, Ont., says the issue comes up often in her practice and she has been trying to move away from honorifics such as Mr. or Mrs., opting instead for “colleague” when addressing other lawyers.

“I have drafted wills for clients who are trans. I just did a will for a client, and after it was signed, the client said, ‘My child is looking into gender reassignment,’” she says. “I wish I had known. I let my client know that we can change the document at no charge. But it made me think that gender-neutral pronouns wouldn’t have made a difference — to use 'child' instead of ‘daughter’ or ‘son.’”

The issue also comes up when creating trusts and even shareholder agreements, she says. In the case of one trust, some of the beneficiaries have not been born and others may not receive the money from the trust for 35 years or more, so Allinotte says she tries to make sure the documents will make sense to someone reading them 50 years down the road. While using “they” as a singular pronoun can be confusing, she says she tries to pair it clearly with the antecedent or use “he/she/they.”

In some cases, Allinotte says taking the time to use gender-neutral pronouns during drafting can prevent errors later. For example, she says that duplicating the same will for a couple is much easier when using the word “spouse” rather than “husband” or “wife.”

Allinotte says she is open to the preferences of clients and is happy to phrase things either way, but she says she would probably turn down the retainer for a client who was deliberately mis-gendering a child or relative.

The Law Society of Ontario had a similar debate in an April 25 board meeting when updating bylaws. The updated governance reform included a reference to benchers and “their capacity as a director of the law society. The law society staff said it was changed to be gender neutral and “consistent with modern statutory drafting,” said bencher Peter Wardle, counsel at Singleton Urquhart Reynolds Vogel LLP at the meeting.

The Ontario Bar Association’s Young Lawyers Division published guidelines on April 12 on how to be more “gender-inclusive,” including using “they” in place of “he or she.” Other recommendations included consulting the Ontario Human Rights Commission’s Policy on Preventing Discrimination because of Gender Identity and Gender Expression.

“Careful drafting with an eye to removing and replacing gendered pronouns and gender assumptions is a small but critical way the legal profession can promote equality and respect for gender diverse Canadians,” the guidelines said.

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