Should contracts always contain the phrase "he or she" when the person could be either gender?

Question

Must a contract explicitly state "his or her" each time if the gender could be either? For example in a rental lease should it say "a tenant is responsible for his or her guests" if it's unknown if the tenant is male or female, or would just using "his" or "her" be enough? What about using gender neutral worlds like "their"? But this may technically be wrong if it's interpreted as plural and there is only 1 tenant.

Is s/he legally acceptable substitute for either "she" or "he"?

Almost a silly question, but in this modern age could someone argue that a contract didn't apply to them as they didn't identify as either male or female and the contract used that wording?

Answer 1

Generally, this will not matter.

However, in order to remove any doubt, contracts often include an interpretation clause to the following effect:

Unless the contexts otherwise demands, words importing any gender shall be interpreted to mean any or all genders.

These clauses help to ensure that such uses of gender are not exhaustive or restrictive.

Answer 2

Think of it this way: what gender is appropriate if the tenant is "medicalSuppliesOvernight.com?"

The better approach is of course to write in gender-neutral phrases. i.e. "the conduct of the tenant's guests is the responsibility of the tenant. Damage caused by tenant's guests is blah blah blah..."

In other words, avoid pronouns when possible. It makes for somewhat clunky speech, but it removes the opportunity for ambiguity.

Answer 3

It is important to remember that the exact phrasing of a contract only ever matters when there is a dispute. If everyone is happy with how the contract is operating then no one ever looks at it.

Because the text only matters in a dispute it is very important to be clear: people are only looking at it because 1) they have entered a hitherto novel part of their relationship and they want to be reminded what they agreed or 2) the relationship is turning to shit and they want to screw the other guy over. 1 can very rapidly lead to 2 if the language is unclear. Also, once you start fighting you tend to fight over everything including what "he" and "she" mean.

Answer 4

Not necessarily.

The issue here is the same as with all contract language: to clarify the intent of the parties. So the pronouns should be selected to as clearly as possible describe their intent.

The choice of one pronoun over another does not automatically invalidate a contract. However, if the language (including but not limited to pronoun selection) is sufficiently obscure such that its meaning in unclear and the intent of the parties can not be adequately inferred by the court, then the contract might be held as invalid and/or unenforceable.

Answer 5

not a lawyer here

I don't think it matters, if it is obvious that with "he" or "she" you unambiguously meant "tenant" and not "landlord" (or vice versa depending on case). Note that "he" and "she" are words that could be ambiguous, if there are at least 2 people on contract with the same gender.

Also, how about transgender people? I don't think that all jurisdictions specify, if transgenders should be "he" or "she". So in this case you really would not know what to put.

However, for the sake of readability I would recommend to be consistent - don't use "he" in one sentence and in the next sentence "she".

And, if you want to be polite to the other person use wording "he or she" instead of simply "he" if that is female. There are people out there who could get offended by this.