Legislative Drafting in Genderless Language: Is Gender-neutral

Drafting Relevant?

Ekawestri Prajwalita Widiati and Dwi Rahayu Kristianti

Faculty of Law, Universitas Airlangga, Indonesia

Keywords: Gender, neutral language, legal drafting, plain language.

Abstract: The technique of Gender-neutral drafting has been introduced in many jurisdictions that use English language

to draft legislation aiming to alter the use of masculine pronouns. As commonly known, some languages are

categorized as gendered language namely, French, Deutsche, Arabic and English often encounter challenges

in formulating a non-sexist legislative sentences. This is not to say that the use of sexist language always

results in discrimination on one gender. Thus, using of gender-neutral language is actually a tool to produce

clarity which in turn should contribute to an effectiveness. For an inherently gender-neutral language such as

Bahasa Indonesia, gender-neutral drafting is a new concept because technically a genderless language is

unlikely to produce a sexist norm. In fact, there are cases where numbers of local legislations has resulted in

discrimination against women. This article underline that gender-neutral drafting for a genderless language is

relevant as concept that is applied in the research paper accompanying a draft bill to produce a more gender-

responsive content and analysis. Gender-neutral drafting is a response to gender equality demands. Therefore,

the drafter and policy maker should not entrapped in the use of terminology an-sich but taking into account

the higher value to achieve by drafting legislation that is effectiveness. Furthermore, gender-neutral drafting

approach is the earliest stage towards the concept of gender aware legislation that looking at equality as results

or equality on the facts not merely a technique. In other words, gender equality is expected both formally in

the text of legislation and substantially in the society.

1 INTRODUCTION

On 2010, Indonesian National Commission on

Violence against Women reported there were at least

154 local regulations in Indonesia that was

discriminative during 2002 to 2009 (Women, 2010).

Years after that, problems related to the quality of

local regulation has showed very little sign of

improvement. On 2016, there were around 3000 local

regulations invalidated by the central government

based on two major considerations; firstly, it was in

contrast to the government effort to draw investment

for the purpose of national development. There were

numbers of local government enacted regulations to

impose permit in many areas which perpetuate long

bureaucracy; and secondly, it did not accommodate

diversity in a plural society which in turn affects

minority groups including women (Ihsanudin, 2016).

‘Language does not merely reflect the way we

think: it also shapes our thinking. If words and

expressions that imply that women are inferior to men

are constantly used, that assumption of inferiority

tends to become part of our mindset. Hence the need

to adjust our language when our ideas evolve.

Language is a powerful tool’ (UNESCO, 1999).The

concept of gender and language are two interrelated

things. The link between gender and language was

conceived by Kleinman who argued that ‘when any

group is made invisible by another, it becomes easier

for the more powerful group to do what they want

with the less powerful one’ (Kleinman, 2011).

Similarly, Ore argued‘while language is certainly

not the only social factor shaping reality – society’s

social institutions such as the family, education,

economy, media, etc. all play their part – it is an

extremely important one’ (Ore, 2003). The use of a

more gender-neutral form of language instead of

male-generics is considered as worthwhile efforts to

reduce gender inequality. In the context of legal

drafting which has evolved at the same time with

language, the debate on the use of language in the law

making ranging from a trend of an archaic legalese to

the plain one without exception to the pros and cons

146

Widiati, E. and Kristianti, D.

Legislative Drafting in Genderless Language: Is Gender-neutral Drafting Relevant?.

DOI: 10.5220/0010051501460150

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 146-150

ISBN: 978-989-758-482-4

about the concern to the techniques of gender-neutral

language (Butt & Castle, 2006).

Gender neutral drafting has been a social response

to the assertion that the enactment of legislation in a

‘masculine’ language contributes to the perpetuation

of a male-oriented society. Xanthaki emphasized that

legislation addressed to both men and women must be

expressed in a gender neutral manner. This is to

impress the readers accurately which legislation has

gender as indeed an issue to be expressed in gender

specific language and which legislation does not

(Xanthaki, 2013).

Indonesian language is categorized as genderless

language. However, the fact that there were numbers

local regulation concerning prostitution which is bias

and results in discrimination against women showed

that even drafting in genderless language might

produce a sexist norms. Departs from the above, this

article intends to analyze whether gender neutral

drafting technique is relevant to respond sexist norms

in the legislative text in a genderless language.

Discussing the issue, this article will look at the

two main element of the validity of regulation which

are substantive aspect and procedural aspect. The

analysis will first discuss the provision by asking the

criteria or approach used in gender neutral drafting

technique with the challenge of drafting in Indonesian

language. Then the discussion continued with

analysis regarding the dynamics of the process of

regulatory making to look deeper on the procedural

aspects.

2 DISCUSSION

Striving legislative quality is undeniably a challenge

for every jurisdiction, because quality of legislation is

a prelude to serve justice and legal certainty for the

society. The law making process is a big thing

because it involves many resources, the deliberation

and thorough study of the theory and principles of law

also a fundamental rights issue. Therefore, legislation

should be the last resort because once it is enacted,

the freedom of the people has been taken gradually.

But in reality the enactment of new regulations is still

believed to be an effective effort to solve problems in

society which is then encourages the rise of various

regulations.

Apparently, it is no longer considered as the last

policy choice but the first and instant one. This is

exacerbated by the hasty, formalistic and poor

analytical on the root caused, so that regulations are

often repressive rather than preventive assuming

many problems will be resolved with severe

sanctions.

2.1 Sloppy Drafts That Is Results in

Bias and Discrimination against

Women

Indirect discrimination exists where an apparently

neutral provision, criterion or practice disadvantages

a substantially higher proportion of the members of

one sex, unless that provision, criterion or practice is

appropriate and necessary and can be justified by

objective factors unrelated to sex (Hepple & Barnard,

2000).

As stated before, the promotion of gender neutral

drafting departs from the idea to treat genders equally

since it is written in the legislative text. Promoting the

gender neutral drafting technique, Xanthaki

introduces some approaches as follows: 1) repeat the

noun in place of pronoun; 2) use ‘his or her’ instead

of ‘his’; 3) recast the sentence using the plural; 4)

omit the pronoun; 5) replace the nominalisation with

a verb form; 6) recast the sentence using a relative

clause; 7) recast the sentence using a participle; 8) use

‘they’, ‘them’ and ‘their’ as singular unisex pronoun;

also 9) avoid ‘man’ words for example: worker

instead of manpower, firefighter instead of fireman,

the average person instead of the average man

(Xanthaki, 2013).

While in Indonesia, the above technique might be

incompatible. Compare to English, Indonesian

language is structurally simpler. To express

something happened in the past or present it uses time

signals without any changing to the verb or the

structure. Furthermore, Indonesian language is

categorized as genderless language. This language

does not have any specific pronouns to indicate

different gender which is in English for example (he

or she). Therefore, challenge to drafting in Indonesian

is basically not about how to bring up a neutral term

but rather coming out from exhaustive words and

redundancy.

Considering different challenge of the gender

neutral drafting technique, the technique should be

seen more than platform to reduce the use of

masculine terms. While the drafter and policy maker

should not entrapped in the choice of word, the spirit

of the technique is actually prelude to achieve higher

value of drafting legislation that is effectiveness. The

gender-neutral drafting technique for a genderless

language is relevant as concept that is applied in the

research paper accompanying a draft bill to produce a

more gender-responsive content and analysis. In other

Legislative Drafting in Genderless Language: Is Gender-neutral Drafting Relevant?

147

words, gender equality is expected both formally in

the text of legislation and substantially in the society.

Seeing the trend of the promulgation of regional

regulations aimed at preventing prostitution, some

regions show almost the same response with even the

similar drafts. Firstly, it defined the word

‘prostitution’ is based on the gender assumption that

prostitutes are female who have limited women from

getting equal legal treatment. Local regulation of

Indramayu Region Number 4 Year 2010, for

example, define the term prostitution as an act in

which a woman surrenders herself to have sex with

the opposite sex and accept payments for the service.

Secondly, the formulation of multi-interpretation

and prejudice-based does not address clearly what

action is prohibited resulting in the condition where

women being the target of bias accusation. Similar

with Indramayu regulation, Local regulation of

Tasikmalaya region Number 28 Year 2000,

Tangerang region Number 8 Year 2000 provide

provisions that forbid an attitude or behavior which

may raise an assumption as prostitutes in the public

area. Based on these rules, a number of women were

victims of wrongful arrests by law enforcement

officers.

Thirdly, the formulation of rules ignores the fact

of vulnerability experienced by women in the long

chain of prostitution including poverty and unequal

gender relations that do not even touch users of the

services. Repressive rules as such is more to make an

impression of whatever to take as long as it does not

happened in the region. The question then, how can

regulations that was formulated in such condition

could pass policy process?

2.2 Fabrication of Political Identity

Indonesia has ratified CEDAW in 1984 by enacting

Law Number 7 of 1984 concerning the Ratification of

the Convention on the Elimination of All Forms of

Discrimination against Women. There are three

principles towards gender equity namely substantive

equality, non-discrimination, and state responsibility

(UN Women, 2012). The CEDAW standard for

equality is substantive equality. This is translated by

the CEDAW Committee as de facto equality or

equality in fact, or it can also be said as equality of

results. However, there are challenges to the principle

of substantive equality, namely the view from several

parties to translate gender equality as formal equality

and views that use protectionist approaches. Formal

equality views are more often understood as similar

treatment for people in similar circumstances. This

formal equality sees men and women as parties who

are in similar circumstances so that both genders

receive similar treatment in the regulations.

Another view considered as challenge to

substantive equality is the protectionist approach. In

contrast to the view of formal equality, this

protectionist approach actually over-sees the different

condition of women. This approach sees that women

as vulnerable group must be protected. However, the

protection efforts provided are often misguided. An

example is the prohibition of women from working at

night (article 130 of the Philippine labour law), and

the prohibition of women from working in hazardous

employment sectors (Article 113 of the Vietnamese

labour law). If viewed carefully, the situation

mentioned above is dangerous for women and men.

However, instead of fixing an unsafe atmosphere to

be safe, some argumentation prefer to provide

"protection" to women by limiting their scope and

access to work.

A number of regulations above use a similar

rationale which states that the purpose of the issuance

of policies is in order to promote religious teachings,

to accommodate local religiosity and as the reflection

of the strong Islamic character in the region. For

instance, there are Local regulation in Enrekang

region Number 6 Year 2005, Maros region Number

16 year Year 2005 and Agam region Number 6 Year

2005 concerning attire rules for muslims (men) and

muslimahs (women) which results in stigmatization

and social exclusion against women who unwillingly

dressed as ruled (Komnas Perempuan, 2010).

This is in line with the tendency of using political

image which is closely related to fabrication of

political identity namely to gather votes by using

symbols of ethnicity, religion, race and gender for a

short-term political interests (Women, 2010). Due to

the fact that it put more weighs on political imaging,

the policy that was articulated through regulation was

not supported by a strong, objective and thorough

analysis to truly solve fundamental problems in

society. Instead of unravelling the tangled threads of

prostitution with multidisciplinary approach, this

kind of regulation becomes a mere political tool for

gaining voter turnout.

2.3 Gender Mainstreaming in Law

Making Process

This section will discuss the legislative drafting

mechanism which is concern to gender equality. In

international law, legislative drafting must pay

attention to the principles of gender equality as a

value and standard set forth in the Convention on the

Elimination of all forms of Discrimination against

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Women (CEDAW). For Indonesia, CEDAW must be

legally obeyed given that it has been ratified.

CEDAW is also known as a substantive convention.

This is due to CEDAW stipulates that States Parties

must adopt the principle of equality between men and

women in their national law, for ‘the practical

realization of this principle’.

Particularly regarding the formation of

legislation, there are currently several scholars who

formulate matters that need to be considered in

legislative drafting that has the perspective of gender

equality. For example is a guidebook which made by

the UNDP Team on legislative drafting. It pays

attention to aspects of gender equality by making the

term Gender-Aware Legislation (GAL) (UNDP,

2003)

Similarly, the OSCE (Office for Democratic

Institutions and Human Rights) has also made a

practical guidebook. However, the term used is

Gender-Sensitive Legislation (GSL) (OSCE, 2017).

However, both GAL and GSL use the international

framework and aim to achieve substantive equality in

accordance with the principle in CEDAW.

In Indonesia, a guidebook has been created from

the Ministry of Women's Empowerment and Child

Protection regarding the parameters of gender

equality in the formation of legislation. The term used

in this document is Gender-Responsive Legislation.

This gender equality parameter is important because

it can be used as a reference and gender analysis tool

in the formation of legislation and further on the

technical formulation of operational policies. Thus it

will prevent the emergence of discriminatory or

gender-biased legislation. The targets to be achieved

by publishing the Parameters of Gender Equality are

how: (1) guaranteed gender justice in various policies

both contained in the Laws of Regulations,

development programs, and in other technical

policies; (2) the reduced opportunity gap between

women and men in achieving development; (3)

decreased acts of violence against women and

children. In addition, this document also has the aim

of establishing Gender Responsive Laws, integrating

gender equality perspectives in the process of

establishing legislation, and guaranteeing gender

equality recognition in the provisions of legislation

and operational technical policies. Furthermore, this

document also regulates a legislation monitoring

mechanism through judicial review and executive

review (Deputy for Gender Mainstreaming ind

Politics, Social Affairs and Law, 2012). With these

parameters, it is expected to reduce the promulgation

of gender-biased legislation as discussed in previous

section.

3 CONCLUSIONS

The hard work of English speaking countries to apply

equality since it is explicated in the text of legislation

needs to inspire Indonesia even though the language

technically does not encounter the same obstacles.

Gender-neutral drafting is a response to gender

equality demands. The cost of gender neutrality that

is feared in gender neutral drafting may also not be

experienced by Indonesia but the cost to society due

to discrimination arising from norms that are not

gender aware obviously must be paid more

expensive. The formation of legislation in Indonesia

is faced with non-technical factors that greatly affect

the quality of design that is dominance of local

majority expression and identity politics that

delivered sloppy draftsmanship which, in turn,

discredit women.

In the Indonesian context, the concept and

techniques of gender neutral drafting should be seen

as a spirit of pursuing equality and serving various

segmentation. More importantly, it is an idea to raise

an awareness to socially invisible group of people to

get a recognition through text and not to be

marginalized or sacrificed for a short-term political

interest.

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