by Greg Johnson , Esq .
Welcome to Our Gender-Neutral Future
“ Language does not only reflect reality ; it influences our perceptions of reality .”
Henry Weihofen 1
Did you ever think you would live to see the day when a legal-writing professor would recommend using “ they ” as a singular pronoun ? Well , you have . This is the story of my journey from adamant opposition , to grudging acceptance , to full embrace of using they as a singular pronoun . My journey reflects the ever-evolving nature of language , and the ways politics , popular culture , and social justice can influence that evolution . Many members of the transgender and genderqueer 2 communities do not feel comfortable with gendered pronouns like he or she . We need a gender-neutral pronoun to reflect this new reality . I have been at meetings during which the first order of business is to say our names and our preferred pronouns . When someone says they ( or one of the other non-gendered alternatives listed below ) I need to respect that . I will argue later that gender-neutral language liberates us all , but at the very least we need to adopt a gender-neutral pronoun to recognize and show respect for members of our community who do not identify with the traditional gender binary . I like they .
The problem is this good intention runs headlong into a basic rule of grammar : A pronoun must agree in gender and number with its antecedent . 3 So , “ Mitt Romney lost his bid for the presidency .” Not , “ Mitt Romney lost her ( or their ) bid for the presidency .” Changing the culture on writing so that we use they as a singular pronoun when we know the gender of the antecedent will take time . Perhaps we can head toward that goal by first using the singular they for “ generic nouns .” Generic nouns are those that can refer to either gender , as in , “ A lawyer must always follow court rules when writing his brief .” At one time , the universal convention was to use the “ generic he ,” like I did in the preceding sentence . With the rise of feminism in the 1960s and 1970s , the “ generic he ” fell out of favor and is now considered sexist . 4 For example , the book Language , Gender , and Professional Writing asserts : “ Of all the problems identified as examples of sexist language , the ‘ generic he ’ is perhaps the most common .” 5 So , here is a tip for those who still use the “ generic he ”: Don ’ t !
Legal-writing guidebooks offer many alternatives for avoiding the “ generic he .” Common solutions include using “ he or she ” ( or “ she or he ”— even better !), though guidebooks caution that “ continued use of ‘ he or she ’ throughout a long document . . . is often clumsy .” 6 Some advocates for “ bias-free language ” suggest using the “ generic she ” as a way to “ temporarily redress the traditional omission of women ” and to “ contest cultural gender expectations .” 7 Those urging the use of the “ generic she ” say that some readers find it “ exhilarating ,” but caution that other readers might find it “ bizarre or confusing or may interpret is as reverse sexism .” 8 Guidebooks generally recommend against using alternatives like he / she , s / he , ( s ) he , and he ( she ) because they are “ difficult to pronounce and awkward in the possessive .” 9 Alternating between she and he in the same document fairs no better . As one guidebook notes , “ This attempt to be fair and gender-inclusive is misguided and confusing and is disruptive to the flow of a project .” 10
Several alternatives to the “ generic he ” achieve gender neutrality by avoiding gendered pronouns altogether . These alternatives include using the noun “ one ” ( also clumsy in my opinion ); using the pronoun “ who ” ( changing “ If a judge does not give proper instructions to the jury , he will be reversed .” to “ A judge who does not give proper instructions to the jury will be reversed .”); 11 changing singular nouns to plural nouns ( from “ A defendant may claim his constitutional rights were violated .” to “ Defendants may claim their constitutional rights were violated .”); 12 and rewriting the sentence to avoid using any pronoun (“ A taxpayer can expect to be audited once in his lifetime .” becomes “ A taxpayer can expect to be audited once in a lifetime .”). 13 A variation on this last alternative is to repeat the noun , so the sentence becomes , “ A taxpayer can expect to be audited once in the taxpayer ’ s lifetime .”
Alternatives like omitting the pronoun or repeating the noun do achieve gender neutrality , so I could leave well enough alone . Still , I urge us to consider adopting a gender-neutral pronoun to use when omitting the pronoun or repeating the noun might be awkward . Although I prefer they , this is far from the only choice for a gender-neutral pronoun . Many dozens of new words have been proposed as gender-neutral pronouns , “ with the vast majority being abandoned by all but their creators .” 14 Some have gained popularity at liberal arts colleges . Perhaps the most popular of these is ze and hir , as in “ Ze filed suit .” ( instead of he / she ) and “ The court entered judgment against hir .” ( instead of him / her ). I poll my students every year and an increasing num- ber of them have heard of or have even used ze / hir as an undergraduate . Other such neologisms include ey / em , jee / jem , ve / ver , xe / xem . 15 The problem with these made-up words , however earnest the intent , is that , well , they are made up ! They seem clubby and coded for insiders who are “ in-the-know .” 16 I like they because it is an existing word that actually has been used as a singular pronoun for centuries .
They has been used as a singular pronoun since the 14 th century . 17 Shakespeare , 18 Austin , 19 Thackeray , 20 and other luminaries of English literature used the singular they . None other than H . W . Fowler , the arbiter of grammar and style for generations with his book Modern English Usage , used the singular they . 21 The Oxford English Dictionary recognizes they as a singular pronoun , and has done so since at least 1915 . 22 The American Heritage Dictionary of English Language acknowledged back in 1992 that , given the drawbacks of the alternatives , they “ may be the only sensible choice in informal style .” 23
From all of this it would seem a short step to using they as a singular pronoun in formal legal writing . Yet this moderate suggestion has met with fierce resistance . Even those legal-writing guidebooks sympathetic to the gender-neutral movement refuse to budge . Enquist and Oates , for example , in their leading guidebook , Just Writing , acknowledge that language “ is moving in the direction of gender-neutral word choices .” 24 Still , when pressed , they state unequivocally that the sentence “ A defendant may claim that their constitutional rights were violated .” is “ ungrammatical .” 25 Here ’ s my challenge to readers who agree with me on the singular they : Let ’ s make this sentence grammatical !
We think of grammar as being prescriptive — a set of rules we have no choice but to follow . But grammar can also be seen as descriptive — a collective assessment of how we write now . If enough of us use they as a singular pronoun , then grammar will follow . I am a member of an email listserv for legal-writing professors . Last year , someone raised the question of whether they could be used as a singular pronoun ; not surprisingly , the list erupted with varied opinions . I like what Professor Andrej Starkis from Massachusetts School of Law said : “ There ’ s a hole in our language ; we have no gender-neutral singular pronouns for human beings . Those human beings are coming up with their own solution , however partial . Our job is to deal with that , not to pretend we can block it .” 26
36 THE VERMONT BAR JOURNAL • FALL 2016 www . vtbar . org