19771
COMMENTS – COMMENTAIRES
The Language of Oppression – Alice Talks Back
“But I don’t want to go among mad people,” Alice remarked.
“Oh, you can’t help that,” said the Cat: “we’re all mad here. I’m mad.
You’re mad.”
“How do you know I’m mad?” said Alice.
“You must be,” said the Cat, “or you wouldn’t have come here.”
– Alice’s first discussion with the Cheshire Cat. Alice’s Adventures
in Wonderland, by Lewis Carroll.1
I am grateful to Mr E.A. Driedger for having replied to Alice
Through the Statutes2
in his article Are Statutes Written for Men
Only?.3 Nothing could illustrate better the failure of men to listen
when women cry out against the injustices which they suffer. No
doubt it may be said that women also fail to listen or to understand
when men speak, but since men are responsible for the position of
women under the law,4 it is obvious that men who run the affairs
of Canada have a duty to listen, to understand, and to correct the
injustices.
Let us dispose of some things first. Alice explored the insane
world of the law, in which women have failed to make more than
token breakthroughs
in their long search for equal rights. Un-
counted generations of women have spent their lives working to
gain rights which later generations have seen taken away. Alice
found the same situation in Through the Looking-Glass, when the
Queen told her:
Now, here, you see, it takes all the running you can do, to keep in the
1 See Gardner (ed.), The Annotated Alice: Alice’s Adventures in Wonderland
and Through the Looking Glass by Lewis Carroll (1960), 89.
Alice’s adventures in Lewis Carroll’s world of fairy tales made her an
expert. She qualified by the Merit Principle to examine the treatment of
women under the statutes.
2 Ritchie, Alice Through the Statutes (1975) 21 McGilL.J. 685.
3 ‘Driedger, Are Statutes Written for Men Only? (1976) 22 McGill L.. 666.
4 One need only look at the absence of women from the power structure
of Canada to be made aware of this situation. This can be seen in other
countries throughout the world, of course. See e.g., Doris Sassower, Women,
Power, and the Law (1976) 62 A.B.A.J. 613: “For the nearly two centuries of
our national existence, power has not belonged to the people but to male
lawmakers. As controllers and dispensers of the nation’s collective force,
they have institutionalized legal precepts and constitutional principles that
served to perpetuate the ‘natural male dominance’ and left to women a
heritage of dependency and second-class citizenship.”
McGILL LAW JOURNAL
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same place. If you want to get somewhere else, you must run at least
twice as fast as that!6
But why should the law be insane? Why should women who run
as hard as they can, find that they are still in the same place?
Why should women find that they must run twice as hard as they
can, if they want to get somewhere else? Alice found that the
ordinary principles of the law constitute a system which excludes
the female half of the population from justice and equality. The
combined operations of the legislative drafters and the courts
have reduced women to a status of aliens in their own country.
Alice found that women have been cheated of their rights by
the customs of drafting on the one hand and by the open prejudice
of the courts on the other. Use of male terms to include women
has resulted in a double standard by which women have shared the,
burdens but have been denied the right to equality. Language has
been a tool which has taxed women or jailed them equally with
men, but haq denied them the rights and privileges of men unless
women were expressly included. And even if women are expressly
included, the courts have almost always found a means of in-
terpreting the language of the statutes to give effect to their own
prejudices against women.
The law has, in fact, operated as a “con” game, in which male
terms include women for the purposes of pains and penalties but
not for rights and privileges. It works exactly like the game adults
play with children, in which they show children a coin and say,
“Here, I will play fairly with you. Let’s toss a coin and see who
gets it. Heads I win, tails you lose.”
That is how women have been tricked by the use of male terms
on the pretence that they included women. Heads or tails, the
woman loses. If the courts find that she is included, she “wins”
the right to pay taxes or to go to jail. If the court relies upon the
“context” to exclude her, she finds that she has lost some right
which would be given to men. Heads or tails, the woman loses.
Everyone who defends this system of using male terms to
include women helps to cheat women. Contrary to Mr Driedger’s
claim,” Alice Through the Statutes did not single him out alone
for special mention, but included the names of legislators, judges,
and public officials who share responsibility in one way or another
for the present system. Contrary to Mr Driedger’s claim, I did not
“castigate … male legislative draftsmen for demeaning women by
5 Supra, note 1, 210.
6Supra, note 3, 666.
19771
COMMENTS – COMMENTAIRES
writing laws as if only men existed”: Everyone, male or female,
who supports this system must accept responsibility for the in-
justices it creates. Correspondingly, Alice Through the Statutes
identified and paid tribute to other men, in the courts, the pro-
fessions, and in government, who protested against the injustices
imposed upon the female half of society by the way in which the
laws are written and the way in which they are interpreted by the
courts.
What about Mr Driedger? Where does he stand with respect
to the drafting technique which uses male terms to include women?
He protests that there was a slight inaccuracy in the statement in
Alice Through the Statutes that he “adopted without criticism or
comment the provision of the Interpretation Act which provides
that words importing male persons include female persons and
corporations”.8 He protests that he did not adopt anything; that
he simply drew attention to the existence of this provision; and
that a comment on or criticism of the substance or policy of that
provision would have been wholly out of place. His Memorandum,9
however, speaks for itself. The Foreword expressly notes that the
rules set forth therein were intended “as a guide” to officers in
the Department of Justice and other persons concerned in the
drafting of legislation. The Memorandum included the Interpreta-
tion Acta without comment, in an Appendix,’ but the body of the
Memorandum also reproduced provisions of the Interpretation Act
with Mr Driedger’s comments or criticisms” and reproduced the
provision here under discussion without any comment or criticism
of any kind. There was therefore no inaccuracy, slight or otherwise,
in my observation. However, much more important is the fact that
Mr Dreidger fails to appreciate that the problem here is one of a
fundamental injustice extending far beyond words. Thus he seems
to think that I was protesting against the use of male terms to
include females because such use seems to be an “excessively
artificial” definition. 2 I can only suggest that he reread Alice
Through the Statutes. My concern is not with word games but
7 Ibid.
8 Ibid.
9 Memorandum on the Drafting of Acts of Parliament and Subordinate
Legislation (1951), Dept. of Justice, Ottawa, prepared by Driedger, Parlia-
mentary Counsel, Dept. of Justice.
9a R.S.C. 1970, c.I-23.
‘o Supra, note 9, 21.
“1 Ibid., 11.
‘ 2 Supra, note 3, 666.
McGILL LAW JOURNAL
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with real injustices against real women. The situation is not, after
all, merely “Miss Ritchie’s problem”, as Mr Driedger terms it. 3 It
is the problem of injustice to half the human race.
What is the solution to the problem? Mr Driedger is wrong when
he claims that I referred “particularly with approval to section
157 of the 1953-54 Criminal Code”‘1 4 to imply that neutral words
would be an answer. I cited section 157 as an example of the way
that “drafters themselves have abandoned consistency” and “have
used neutral terms or terms relating to both sexes wherever they
have thought it desirable to achieve their own purposes”. 15 As I
pointed out, the neutral words in section 157 were adopted and
the male wording abandoned, by the male drafter of that day,
to make certain that females would be included in a criminMl pro-
hibition of acts of gross indecency previously prohibited only with
respect to males. The drafter intended to share the burdens with
women, and not to confer a benefit. My point, backed by examples
drawn from different statutes, was that the drafters of legislation
“have never hesitated to abandon the sacred canon of drafting in
the form of the male whenever they themselves wished to do so ….
Drafting is flexible if the drafters wish”.16 It is time that the
drafters of legislation opened the door to equality for the excluded
half of the population.
Trying to Open the Door
Alice went timidly up to the door, and knocked .”There’s no sort of use
in knocking,” said the Footman, “and that for two reasons. First,
because I’m on the same side of the door as you are. Secondly, because
they’re making such a noise inside, no one could possibly hear you.”
-Alice’s discussion with the Footman. Alice’s Adventures in Wonder-
land.17
It
is true in most countries that the drafters are so much
occupied with the noise being made inside the establishment that
they have shown no intention of opening the door so that women
can get in. Mr Driedger is no exception; his only suggestion is the
cosmetic one of inserting into the Interpretation Act a provision
“that words importing one gender include all other genders”,’ 8
13Ibid.
14 Ibid., 670.
1′ Supra, note 2, 704.
16Ibid., 705 (emphasis added).
17Supra, note 1, 80.
18Supra, note 3, 671.
1977]
COMMENTS – COMMENTAIRES
and he adds that “there could be no suggestion of discrimination”.?9
However, he then admits frankly that an amendment along these
lines would not solve the pronoun problem.
The “unless the context otherwise requires” rule would have to remain.
A gender provision could not be absolute, because there are certainly
instances where corporations would not in a particular context be
included, and the same could be said of male or female persons. 20
So he would put us back at the starting point. He ignores the
fact that Alice Through the Statutes examined the “context rule”
and traced its infamous history dating from the 1867 Interpretation
Act.21 As Alice found and documented, the context rule, far from
protecting women, exposed them to the judiciary’s “openly pre-
judiced opinions about the mental capacity and the place of
women”.2 The judiciary “deliberately erected into permanent law
in modem times the common law view that the male includes the
female for the purposes of pains and penalties but not for rights
and privileges”.23
Jam Tomorrow and Jam Yesterday, but Never Jam Today24
Mr Driedger insists that the problem “is not one that was
created or is curable by legislative draftsmen [sic], male or female.
it exists in all
It is rooted in a defect in the English language;
English speech or writing and is not confined to legislation”.25 He
notes that although the plural pronouns, “they”, “their”, “them”,
are common-sex, there is no common-sex personal pronoun in the
singular.
In statutes the masculine he, his, him, are used and it is this fact that
generates the complaint that male terms are used to apply to both
sexes, that legislation is written as if only men exist, or written in
terms of the male.2 6
But as Alice Through the Statutes found, the drafters of legislation
fail to practise what they preach. The Criminal Code,”7 for example,
uses male terms in some places to include women, neutral terms
1) Ibid.
20 Ibid., 672.
21 S.C. 1867, c.1, ss.6 and 7. Discussed in Alice Through the Statutes, supra,
note 2, 688.
22 Ibid.
23Ibid., 702.
24Supra, note 1, 247. One of Alice’s discussions with the White Queen.
25 Supra, note 3, 666.
26 Ibid.
27R.S.C. 1970, c.C-34.
McGILL LAW JOURNAL
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in other places to achieve the same purposes and sex-based legisla-
tion in still others.2 8 It is therefore impossible for the drafters of
legislation to argue in good faith that they are using male terms
to include women only because they have no alternative. There are
too many examples to the contrary, in too many statutes, with no
rational explanation for the confusion.
It is impossible to accept Mr Driedger’s arguments that drafters
are unable to prepare laws which are not openly discriminatory
in their language. The problem is not lack of ability but lack of
will. Drafters who are in the habit of thinking in masculine terms
only, 2 9 will draft statutes in masculine terms only.
Getting Through the Door
The open discrimination which excludes women from equality
can, therefore, be removed by the drafters without any change in
anything except the goodwill of the drafters. It would, of course,
be even easier if the English language could be adapted very
slightly. Could this be done by the drafters? Mr Driedger says no.
He blames “a defect.in the English language”,30 the absence of a
common-sex personal pronoun in the singular, which would per-
form the same function as the plural personal pronouns, “they”,
“their”, “them”. But is the language so static? He notes that a
solution would be “to invent a new series of pronouns”, 1′ but
asserts that “that is not something that draftsmen may do; they
must take our languages as they are” 32 So he betrays his lack
of will by such words as “draftsmen” instead of “drafter” and he
relies on a static, unchanging language, a dead language. But we
are not, after all, dealing with forgotten hieroglyphics
left by
peoples who are extinct. We are dealing with living people, and
living languages, where words change, die out, and are replaced
by totally new ones.
28 Supra, note 2, 703: “The Actual Practice of Drafters”.
29See Charles Ferguson, The Male Attitude (1966), 17: “The male thinks of
himself as the universal, so that you find much about Man (embracing Woman)
in such stentorian terms as Man’s Unconquerable Spirit, Man and His Destiny,
Man and Civilization, Man and His Gods, Man Above Humanity, Man and
the Future, Man Against Nature, Man and the Universe … . The godhead
is encased by theologians, virtually all of them men, in phrases that pre-
serve and sanctify the male ego.”
30 Supra, note 3, 666.
31 Ibid., 672.
S21bid. (emphasis added).
19771
COMMENTS – COMMENTAIRES
Mr Driedger cites excerpts from various authorities to show
that “[t]he masculine singular personal pronoun has been used in
English literature since its very beginnings”.P He quotes Chaucer,
Shakespeare and the proverbs. His comment on Martin Luther is
significant: “I believe we can all agree that Martin Luther and the
authors of the Authorized Version or the Revised Standard Version
knew their language.134 Was it not Luther who said: “If a woman
grows weary and at last dies from childbearing, it matters not.
Let her die from bearing, she is there to do it”. Women know the
men who wrote the various translations of the Bible as men who
wrote into it their own views about women. Women are, for that
very reason, rewriting history themselves to eliminate the mascu-
line bias reflected in language or in ideas.35
The whole point is that language cannot be seen in the abstract.
It reflects the views of the writers. And the language itself is a living
organism, continually growing and changing. Look at Mr Driedger’s
Chaucer excerpt 6 (“beest”, “peyne”, “moot wepe”)
to see how
much has changed. Or to go further back, to the beginnings of En-
glish literature, look at the opening lines of the epic poem Beowulf:
HWAET, w6 Gfir-Dena on 6ar-dagum,
] od-cyninga
hii PA aelingas ellen fremedon. 37
]rymm gefrugnon,
The fact is that we cannot speak or understand the language of
our early ancestors. It is possible to find in both French and
English the traces of the history which has affected them; it is
possible to find in each, the mingling of many peoples and many
tongues. There is nothing permanent where language is concerned;
it changes with the needs of the times. And the rate of change of
all languages has grown enormously. With advances in science
new words have flooded into the languages of the world; “tele-
vision” and “radio” or “train”‘ or “airplane” were unknown to
Chaucer. The reality of a living language is that it does grow.
But do new words also come into the law? Or is law completely
immune? The same influences are at work. Alfred the Great’s Code
33Ibid., 668.
34 Ibid., 669.
3 5 E.g., the Encyclopedia Britannica (1958) does not mention Cleopatra
in the history of Egypt.
36 Supra, note 3, 668.
3 7Klaeber (ed.), Beowulf 3d ed. (1950)
1; “Yes, we have heard of the
glory of the Spear-Danes’ Kings in the old days – how the princes of that
people did brave deeds.” Trans. by Donaldson in The Norton Anthology of
English Literature, rev. (1968), vol.1, 35.
McGILL LAW JOURNAL
[Vol. 23
is an example of 9th century Anglo Saxon, virtually incompre-
hensible to the modem reader:
Be cyniiieges swiedoimc.
Be ciricene friie.
Be )(am )e steleti on eiricean.
Be tiam Pcl man fcohtet on kyninges healle.
Be tiam ]’e nunnan of mynstre uitahedti.
Be tiam
Be Imied )ingum. 38
.:et man ofislea wif mid eilde.
Statutory language has changed repeatedly over the centuries.
In Canada, the statute revision of 1970 was shaped by the decision
to give equal importance to the French and English languages,
enormously increasing costs and totally changing the format of
statutes3 9 New words
such as “ombudsman”, “Anglophone”,
“Francophone”, are proof that governments can create new words
at will. The drafting of statutes is completely flexible if the drafters
or their political rulers wish.40
What about Mr Driedger’s concern about the absence of a
common-sex personal pronoun in the singular? Mr Driedger quotes
Jesperson’s4
1 three examples of solutions: use of “he or she”, use of
the male term only, and Thackeray’s use of the plural: “Nobody
prevents you, do they”.42 Mr Driedger rejects the first possibility,
approves the second, and condemns the third as “common
in
speech and used occasionally in writing, [but] … grammatically
incorrect”.43 Yet the common usage of the plural is a practical
solution. The need for such usage is confirmed by its continuation
in the speech of the people. It will not as Mr Driedger fears, “in
effect expunge the singular pronouns from the English language”. 44
On the contrary, usage of the plural where one person represents
a plural idea will make the language more precise and more just,
and will reserve the singular pronouns for usage where a single
person or object is intended.
There are other ways to solve the problem. The invention of
a new series of pronouns is certainly possible, if the drafters or
the political rulers wish. Can new pronouns be invented? Of course.
8Tu1tk (ed.), The Legal Code of AElfred the Great (1893), 59.
3 See Revised Statutes of Canada, 1970.
40See Russell, Legislative Drafting and Forms 4th ed. (1938), 22-23.
4 1 Essentials of English Grammar (1950), 193.
42 Supra, note 3, 667.
43Ibid., 667-68.
44 Ibid., 668.
19771
COMMENTS – COMMENTAIRES
The word “thou” was once current in middle English, as a word
of familiarity like the present “tu” in French or “du” in German,
but it has passed out of ordinary usage, and has taken with it the
second singular of the verbs, such as “lovest” or “lovedst”.45 The
pronoun “you”, which is used today by everyone as the pronoun of
the second person singular or plural in any grammatical relation
except the possessive, is recorded by Webster as having been used
only as a plural pronoun of the second person from Old English
times to the 13th or 14th century.46 The acceptance of “you” for
use in the singular is therefore the best possible precedent for the
similar use of “they” and “their” to apply to the singular.
To make matters even easier, we could use a perfectly good
series of pronouns, without inventing any. I refer to “it”, which is
already used with reference to things, and with respect to babies
or pets without regard to .their sex. Can it be done? Of course, if
the drafters wish to do so. The word has already gone through a
change in spelling, from the old spelling “hit”.4 7 And the word
“its” actually displaced the use of sex terms with reference to
inanimate objects so recently that it was just coming into use in
Shakespeare’s time. Shakespeare rarely used it, and the Authoriz-
ed Version of the Bible used “his”, “her”, or “thereof” in places
where we would use “its”.4 8 Richard Chenevix Trench, the learned
author of a book on the study of words, points out that “the
constant application by our rustic population in the south, and I
dare say through all parts of England, of ‘his’ to inanimate objects,
… no less than to persons, where ‘its’ would be employed by
others” is really the retention of old grammar by some, and is not
in fact ungrammatical usage.49 So the word “it” and the recent
45See Trench, English, Past and Present 5th rev.ed. (1862), 175-76. See
also Webster’s Third New International Dictionary of the English Language
(1968), 2380-81.
46 Ibid., 2653-54: “you … used from Old English times to the 13th or 14th
century only as a plural pronoun of the second person in the dative or
accusative case as direct or indirect object of a verb or as object of a
preposition … ; used since the 13th or 14th century also as a singular pronoun
of the second person as direct or indirect object of a verb or as object of a
preposition, at first only as the appropriate form of address to a person of high
social status or to a person not well known to the speaker but later without
this limitation…
47 Ibid., 1202.
4 8 Thus see Skeat, An Etymological Dictionary of the English Language 4th
ed. (1910), 310. And see Trench, supra, note 45, 133-35.
-19 Ibid., 133.
McGILL LAW JOURNAL
[Vol. 23
word “its” have shown that they can meet a need and be accepted
fully by connoisseurs of the language. French, of course, is no less
flexible than English, and it is impossible to argue rationally that
there is any need for withholding drafting changes in English
until the drafters decide upon them in French. If the drafters
cannot do the job, the people can.
Would women obtain equality automatically by drafters using
neutral terms in statutes? Mr Driedger claims that this is something
I believe, but Alice Through the Statutes pointed out over and over
again the nefarious role which the courts have played in reducing
women to second-class citizens. The courts have, in fact, often
applied the rules of the same “con” game even when apparently
neutral terms have been used. Alice summed up the present situa-
tion in these words:
For over a hundred years it has been clear that legislation drafted in
terms of the male exposes women to denial of rights granted to men.
Even legislation drafted in neutral terms has often been used to exclude
women from rights and privileges. The whole structure of the law with
respect to women rests upon judgments of men who regarded women as
inferior.60
But the problem of the courts is a different matter. The drafters
of legislation cannot blame the courts until they themselves have
democratized the statutes of Canada.
Because the women are finished waiting. It is no longer possible
to tell them that the rule is, jam tomorrow and jam yesterday,
but never jam today. As Alice said, it must come sometimes to
“jam today”.5′ And that “sometimes” is now.
Marguerite E. Ritchie, Q.C.*
5oSupra, note 2, 705-706 (emphasis added).
51 Supra, note 1, 247: ” ‘You couldn’t have it if you did want it’ the Queen
said. ‘The rule is, jam to-morrow and jam yesterday – but never jam to-day.’
‘It must come sometimes to “jam to-day”‘ Alice objected.
‘No, it can’t,’ said the Queen. ‘It’s jam every other day: to-day isn’t any
other day, you know.’
* B.A., L.L.B., L.L.M., L.L.D.; Vice-chairperson, Anti-dumping Tribunal, Otta-
wa. Formerly with the Department of Justice, Ottawa. First woman to receive
Federal Queen’s Counsel. Recipient of Honourary Doctorate in 1975 from
University of Alberta for work in Human Rights.
