Putting equality in writing : representations of women in legislation : "a feminist analysis"

Abstract

This thesis examines how women are represented in the language of legislation. Legislation is a primary source of rights and the main instrument of law reform. How women are represented in the language of legislation therefore has the potential to affect and effect women's equality. Prior to the 1800s, women were not represented in legislation under "generic" male terms. A survey of older legislation evidences a system of using male and female terms together when the law applied to both sexes. The decision to allow male terms to include women was one of many reforms aimed to reduce the verbosity of the statute book during the 1800s. The arbitrary choice of male terms to represent both sexes contributed to the construction of a male standard in the law's application. Both male terms and seemingly neutral terms (eg "person") were used and interpreted to apply to men only; however, both were ambiguous in their application to women. Yet as women were being written out of the language of legislation, early feminists were campaigning for improved women's rights. The new system of representation proved an inadequate mode of expression. In requiring that women be expressly mentioned, courts and Parliament went outside the boundaries of "normal" legal discourse, creating a separate discourse of women's equality. In response to feminist criticisms during the 1970s and 1980s, many jurisdictions have stopped using male terms to represent women. Male terms are being replaced with gender neutral language. However, what current policy and practice accept as gender neutral language is an inadequate and ineffective response. The current reforms neither challenge the male standard embedded in the law's application nor take into account the discourse of women's equality. As with the initial adoption of mate terms, stylistic concerns have been valued over language that guarantees women's inclusion. The language of legislation should reflect the substantive equality it claims to convey. Additional measures are required to improve how women are represented in legislation, to promote women's equality through the language of legislation.