Breaking down gender stereotypes in legal writing

This article was first published in the June 2022 issue of the CIPA Journal.

Dear Sirs Readers,

Re: Breaking down gender stereotypes in legal writing

Why did we delete ‘Sirs’ you may ask? It’s because like others in the legal profession, we question whether the use of the exclusive and gendered salutation ‘Sir’, an honorific title, first documented in the English language in the early 1200s, is really the appropriate default way of addressing IP professionals in the 21^st century.

In many spheres of society, you may notice a move to the use of gender-neutral language. This avoids bias, whether unconscious or otherwise, towards any gender, and ensures an inclusive environment for everyone. Gender-neutral language avoids one sex or social gender becoming the norm.

The Legal Profession, where Latin is still widely used, is pleasingly starting to re-adopt gender-neutral language. In the mid-19^th century, it was common to find legislation drafted in gender-neutral terms, but in 1850 Parliament passed an Act ‘for shortening the Language used in Acts of Parliament’. From then on masculine words in legislation were ‘deemed and taken to include females’.

The use of masculine words to cover people regardless of gender or sex is unnecessary, inaccurate and tends to reinforce historic gender stereotypes.

In 2007, this practice changed for drafting legislation and the UK’s Office of the Parliamentary Counsel and Government Legal Department produced a ‘Guide to Gender-Neutral Drafting’[1] for use by the wider legal community.

Back in 2020, The Law Society decided to end the use of ‘Dear Sirs’ as a salutation in formal letters and business emails, considered as an ‘outdated greeting’ that runs contrary to the Law Society’s Gender Equality, Diversity and Inclusion Policy.

Great strides in adopting gender-neutral language have also been made in the IP profession.

The European Patent Office’s Rules of Procedure of the Board of Appeal 2020, and The Guidelines for Examination at the European Patent Office (March 2021 Edition), were recently updated to replace gendered language. For example, the ‘skilled man’ is replaced by the ‘skilled person’, and ‘Chairman’ with ‘Chairperson’.

Closer to home, in 2020, a team of UK patent examiners took on the task of upgrading all 1,028 pages of the UKIPO’s 35-year-old Manual of Patent Practice (‘MoPP’). The team spotted 496 instances of non-inclusive language across 185 sections of the MoPP, all of which are now replaced by gender-neutral language.

Yet, we still too often see unconscious bias creeping in and assumptions being made. This is particularly noticeable in correspondence. By using gendered titles such as ‘Dear Sir’ or assuming a person’s pronouns, we send an unintended message that people must look a certain way to demonstrate their gender or worse still, be a certain gender to perform a certain role.

A brief review of correspondence from the UKIPO shows that Examiners are still addressing communications to ‘Dear Sirs’. Along with the 45% of Chartered patent attorneys here in the UK that do not identify as male,[2] we’re sure were not alone in being incorrectly referred to as ‘Dear Sirs’ in correspondence. This may simply be default language used in standard letters, rather than the result of unconscious bias leading to the assumption that a patent attorney called Alex Wood or Dr. Curran must be male.

It is also common for the EPO to refer to parties, whether it be an inventor, applicant or representative, as male. An example of this can often be found in the minutes of an oral proceedings, where assumptions on gender are commonly made.

So, what are the alternatives?

We could, of course, simply use a person’s name.

We could use pronouns. Pronouns are used to describe individual people or groups of people, and are often the first word we see in communications. Examples include ‘she/her/hers’, ‘he/him/his’, ‘they/them’ and ‘ze/hir‘. They are personal, important and used in our everyday lives, so it is vital we get them right.

However, there are instances where people do not know and/or want to disclose their pronouns. This is one of the many reasons why we should consider using gender-neutral language in all communications, unless someone has identified their preferred pronouns.

By using gender-neutral terms, we reduce gender bias and help eradicate gender stereotypes.

The gender-neutral ‘Mx’ can be used as an alternative title if you do not know someone’s preferred pronouns or for those who do not identify as being of a particular gender (Mr., Mrs. and Ms. are all gendered).

Alternatively, gender-neutral language such as ‘Dear Colleague’, ‘Dear Examiner’, ‘Dear Counsel’, ‘Dear Applicant’, or ‘Dear Boards of Appeal’ could be adopted.

The use of such language remains respectful whilst being inclusive. It also reflects the fact that 21% of patent Examiners at the UKIPO and 47% of Examiners or Members of the European Patent Office’s Boards of Appeal identify a female.[3],[4]

The list of alternatives to gendered pronouns is long and can be implemented by everyone. The solution is a simple one we hope to see more of in the future.

Best regards,

Clair Curran & Alex Wood

[email protected]; [email protected]