The Braverperson bill

Why the minister should have rejected gender-neutral drafting

Peers will try to amend the Ministerial and other Maternity Allowances Bill this afternoon before it is passed by the House of Lords. That’s not because they have any objection to paying Suella Braverman, the attorney general, a salary while she is on leave. It’s because the bill that allows for this to happen refers to a “person” who is pregnant and a “person” who has given birth to a child. Peers who have put down amendments want “person” to be replaced, as appropriate, with “woman”, “mother” or “expectant mother”.

I drew attention to the bill’s “admirably gender-neutral” drafting in a piece updated a few hours after the bill was published. Readers may have picked up a hint of irony in my reference.

As I said, all modern legislation is drafted in that way. The change of policy was announced by Jack Straw when he was leader of the House of Commons in 2007. Straw said that using words such as “chairman” tended to “reinforce historic gender stereotypes”. In future, government bills would “take a form which achieves gender-neutral drafting so far as it is practicable, at no more than a reasonable cost to brevity or intelligibility”.

Those who draft legislation — “drafters”, of course, rather than “draftsmen” or “draftswomen” — can consult guidance issued by the office of parliamentary counsel. This is a fascinating document that can be studied with profit by all of us who write for a wider readership. It says that gender-neutral drafting means two things:

avoiding gender-specific pronouns (such as “he”) for a person who is not necessarily of that gender

avoiding nouns that might appear to assume that a person of a particular gender will do a particular job or perform a particular role (eg “chairman”)

There are three ways round this problem:

  • repeat the noun

  • change the pronoun

  • rephrase to avoid the need for a pronoun or noun

As the guide explains, all these devices have drawbacks.

Indeed, it seems unfair to blame the drafter for doing the drafter’s job. A drafter should not be criticised for following the advice given by his, her or their superiors. And a drafter cannot be faulted for following government policy.

Peers will no doubt point out this afternoon that only a woman can give birth. The response to that is that some people who have given birth are no longer regarded as women — although the courts have refused to allow a transgender man who had a baby to be registered as the child’s father or parent.

As Lord Pannick QC (“an expectant grandfather”) explained in the Lords on Monday:

The lord chief justice said that, as a matter of common law and under the legislation governing the registration of births, the person who gave birth to a child is the mother, and the Supreme Court dismissed an application for permission to appeal. In light of that judgment, I do not think that there are any legal difficulties in referring to mothers or women in the Bill. The mother of parliaments, in doing that, would be showing no disrespect to trans men.

Penny Mordaunt, the minister responsible for the bill, should have noticed that the key word in its title and first clause is “maternity”. She should have insisted that this non-gender-neutral word was reflected in the bill’s drafting. Even though the bill is expected to become law tonight, it is surely not too late to change it.

If not, maybe we should call it the Braverperson Act.

Update 8pm: Fortunately, that will not be necessary. The government agreed this afternoon to accept an amendment by Lord Lucas to substitute the words “mother or expectant mother” for the word “person” at various points in clauses 1 to 3. MPs will have to approve the new wording before the bill becomes law.

That was announced before my good friend Baroness Deech gave this blog its first mention in the House of Lords:

My Lords — or, taking a cue from the noble Lord, Lord Triesman, how long will it be before I ought to say “My peers”? — these amendments are less about maternity leave, although even that word is now suspect, than they are about the proper use of language to reflect and protect those to whom it refers, some of whom have a special status within the law. If I can cut straight to the solution, it is this. The Interpretation Act 1978 says that

words importing the feminine gender include the masculine, 

so if the words “mother” or “woman” are used in this Bill, which incidentally and memorably Joshua Rozenberg has referred to as the “Suella Braverperson Bill”, an individual trans person—a man who had given birth—would be covered by the words “woman” or “mother” in the same way that allowances granted to men in other areas of the law include women in their remit. So there is no reason why “woman” should not be used, although I accept that there is a consensus around “mother”…

As such, by supporting these amendments, let us reinforce clarity, precision and dignity in language, preserve the special status of women in childbearing and motherhood, follow precedent and simply show some common sense. I thank the noble person, Lord True, for all that he has done in this respect, and I hope that he does not get trolled. I commend these amendments to your persons’ House.