21 June 2024 by Roger Longaron

Acknowledging transgender and non-binary identities through gender-neutral vocabulary in Will drafting

In recognition of Pride Month, we want to discuss what legal professionals can do to promote equality and protect the different and wonderful minority identities in our plural society.

Sometimes, the smallest changes are those with the biggest impacts, starting a chain reaction.  With this in mind, Bolt Burdon’s Wealth and Estate Planning team has implemented the option of using gender-neutral vocabulary when drafting a Will.

We want to acknowledge our clients and contacts correctly, embrace their identities, and help them to feel seen and safe. It starts with using the correct pronoun or title.

Transgender and non-binary identities in the UK

Full legal recognition for binary transgender people arrived in the UK in 2004 through the Gender Recognition Act 2004. This was a consequence of the UK’s infringement of the European Convention on Human Rights in the case of Goodwin & I v UK Government (a.k.a. Christine Goodwin & I v United Kingdom [2002] 2 FCR 577), where the UK government had failed to alter the birth certificates of transsexual people or allow them to marry in their new gender.

Since 4 April 2005, as per the Gender Recognition Act 2004, it is possible for transgender people to change their legal gender in the UK. Nevertheless, the current procedure has been highly criticised and is regarded as one of the worst in Europe, as it has not been correctly updated with the current needs of transgender people, leaving it behind international human rights standards.

According to the British Trans Report 2018 produced by Stonewall, a UK-based charity that stands for the freedom, equity and potential of all LGBTQ+ people:

  • One in eight trans employees has been physically attacked by a colleague or customer in the last year.
  • Over half of trans people have hidden their identity at work for fear of discrimination.
  • A quarter of trans people have experienced homelessness.

These are some of the reasons why acknowledging and protecting transgender people’s rights is crucial. They face discrimination daily.

People of non-binary gender identify as neither male nor female and prefer the use of gender-neutral pronouns (such as they/them). They are not formally legally recognised in the UK, and this does not seem to be changing in the near future. In May 2021, the government rejected a petition to legally recognise non-binary identities, which may have allowed, for example, the use of X as gender in passports. The petition was discussed in Parliament in May 2022, with no further developments.

Nevertheless, there have been recent developments. For example, non-binary status was recognised in the latest census of England and Wales and the Higher Education Statistics Agency allows the use of non-binary gender markers for students in higher education.

What is gender-neutral vocabulary?

Gender-neutral language avoids using a specific gender to refer to someone. This language can be used where one is already aware of the non-binary identity of the person one is referring to, or it can be used simply to avoid the assumption that someone’s gender is linked to their sex.

The starting point for this is pronouns. A gender-neutral or gender-inclusive pronoun is a pronoun that does not associate a gender with the individual being discussed. The most commonly used are ‘they’ and ‘them’, as they are third-person pronouns and gender-neutral.

Other examples of gender-neutral vocabulary would be:

  • Using the person’s name.
  • Using plural nouns, such as children.

How can we protect identities when drafting a Will?

Respect and understanding are key factors when dealing with a client. It is always better to ask for someone’s preferred pronouns sensitively and respectfully rather than assuming them.

From a legal perspective, when drafting a Will, the law does not recognise the existence of plural identities and non-binary people. Using gender-neutral language, such as they or them, or the title ‘Mx’, can lead to ‘confusion’ (and by confusion, we mean situations where, for example, the testator wanted to leave an asset to a non-binary person who has siblings and has used the pronoun ‘they’ to refer to the non-binary person). Depending on how the Will is drafted, the other siblings could potentially challenge that legacy claiming that the pronoun ‘they’ referred to all the siblings.

The above can have a negative impact on non-binary people. It is discriminatory to refer to non-binary people as either male or female as they do not identify with either of the sexes.

Regarding transgender people, there may be a concern about their future acknowledgement. Why should we assume that someone who identifies as a male in 2024 will not identify as a female or a non-binary person in 2030? Using gender-neutral vocabulary in a Will when referring to anyone allows us to treat everyone with respect in case they have transitioned.

If the law does not fully accommodate the use of gender-neutral language, what can we do? There are different ways to protect someone’s identity when drafting a Will, avoiding discrimination and making them feel comfortable:

  • Using names instead of pronouns.
  • Including a clause stating that, if someone referred to in the Will has transitioned, their new name will be the one used to refer to them.
  • Using gender-neutral vocabulary, such as children, instead of sons and daughters.
  • Being aware of the plurality of identities and always treating everyone with respect. We might not be able to use ‘they’ and ‘them’ or ‘Mx’ in the Will, but we can use these in all our correspondence.

We strongly suggest reading the following document regarding gender-neutral language:

Guide to Gender Neutral Drafting – FlowPaper FlipBook

Conclusion

Even though the different LGBTQ+ community identities and rights are increasingly being acknowledged and protected, there are still many issues to address to make our society equal for everyone, especially from a legal perspective.

The use of gender-neutral vocabulary is important because it acknowledges the existence of these identities and gives them the respectful treatment they deserve. Using the correct pronouns to refer to someone can make a huge difference to them. Therefore, all of the above must be considered when drafting a Will, but also when assisting or acting for a client.

At Bolt Burdon, we are committed to promoting an equal society for everyone.

If you want to draft a Will using gender-neutral vocabulary, or you would like to discuss any issues around this, please contact our expert Wealth and Estate Planning team.

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