Building up to equality?

Most people would not argue that the world of construction has historically been dominated by men – a truth which pervades not merely the actual act of construction but also the contracts which govern those acts.

Despite a declaration by then leader of the House of Commons, Jack Straw in 2007 that gender neutral drafting would thereafter be adopted in all legislation, it seems that this has yet to filter through to some standard form contracts and, to a certain extent, the legal profession generally. It remains commonplace for letters to start with 'Dear Sirs' and for bespoke professional appointments and other construction contracts to use masculine pronouns in general, whilst containing somewhere in the depths of the interpretation provisions a sentence acknowledging that 'a reference to one gender shall include a reference to the other genders' or other wording to that effect.

It was not until the NEC published their 4th iteration of their suite of contracts in 2017 that this issue was acknowledged by draftsmen in the construction industry, and the NEC4 contracts now all contain gender neutral wording as opposed to using the traditional masculine pronouns. However other industry standard forms (including the JCT) as well as many bespoke forms of contract still contain references to the Contractor/Employer being a 'he'. Critics would suggest that this is sub-conscious gender bias – the drafters of these contracts would likely argue that these were errors which will be corrected in the next iterations of those contracts.

For those involved in the drafting of documents, it is worth having a look at the Guide to Gender Neutral Drafting which was produced by the Office of the Parliamentary Counsel and was published in November 2019. There are good examples within the document of how to change the drafting to make the text gender neutral.

As for me, I'm off to check our set of precedents to make sure that we are not falling into the same trap!