Avoiding Sexism in Legal Writing—The Pronoun Problem

We live in a politically-correct world. And like it or not, some people will make snap judgments about you if you don’t play by the rules.

If readers think you’re using sexist language—even unconsciously—you risk damaging your credibility and diminishing the effectiveness of your legal writing.

Bryan Garner sets a sensible goal when it comes to avoiding sexism in legal writing: Legal writers should write with a style that “no reasonable person could call sexist [and that] never suggests that you’re contorting your language to be nonsexist.”

This week I’ll tackle the “pronoun problem” in legal writing. Next week, I’ll explore non-sexist alternatives to man-ending nouns and how to use non-sexist salutations.

The Pronoun Problem Is Neither New Nor Unique to the Law

In Garner’s Modern American Usage, Garner points out that the English language contains several common-sex words like person, everyone, and no one; yet, English has no common-sex singular personal pronouns. The only singular personal pronouns in the English language are he, she, and it.

Beginning around 1745 until roughly 1980, American writers generally used the masculine-singular-personal pronouns he or him where the antecedent noun was sex-indeterminate.

But as Patricia T. O’Conner and Stewart Kellerman detail in On Language: All-Purpose Pronoun and Sex Symbols, blame for this rule can’t be traced to a cabal of misogynistic 18th-Century grammarians. Instead, they point out that it’s widely believed that the rule originated with Ann Fisher, an 18th-Century schoolteacher and the first woman to write an English grammar book.

Fisher’s 1745 book—A New Grammar With Exercises of Bad English—was one of the most successful grammar books of its time, and scholars—like Ingrid Tieken-Boon van Ostade, a linguist at Leiden University (Netherlands) and an expert on early English grammars—believe that it was the first grammar book to say that he should be used generically as a singular personal pronoun.

Despite the contrary historical evidence, however, many modern critics of sexism in the English language have incorrectly contended that a male contemporary of Fisher’s—John Kirkby—was the source of the rule. But Tieken-Boon van Ostade’s research shows that Kirkby plagiarized Fisher’s book, including her pronoun preference.

The paradox here is impossible to miss: A trailblazing, female English schoolteacher’s grammar book—not any contribution by her 18th-Century male contemporaries—was the source of the pronoun rule that has been so reviled by 20th-Century proponents of sex-neutral language and grammar.

Solutions to the Pronoun Problem

Regardless of the origin of the rule, it doesn’t solve the lingering problem of masculine-singular-personal pronouns. But in Modern American Usage, Garner suggests three pragmatic solutions:

First, a writer can alternate her use of the masculine pronouns he, him, or himself, and the feminine pronouns she, her, or herself.

This is what some U.S. Supreme Court Justices do. A 2010 analysis of opinions from the 2006–2008 Supreme-Court terms, for example, showed that Justice Ruth Bader Ginsburg commonly uses this pronoun-alternating technique (as did Justice John Paul Stevens before he retired)—though Justice Ginsberg alternates her use of masculine and feminine pronouns across different opinions and not within a single opinion.

But legal writers must be careful when alternating between masculine and feminine pronouns. As Richard Wydick observes in Plain English for Lawyers, if you’re careless with alternating between pronouns “you may perform a sex change on somebody in the middle of a paragraph.”

Second, legal writers can use pronoun pairs like he or she and his or her.

Most usage experts condone this makeshift, as long as the writer uses pronoun pairs in moderation. Strunk and White, for example, note that using he or she “is the logical thing to do if it works.” But Garner, in The Redbook: A Manual on Legal Style, suggests that legal writers use pronoun pairs “sparingly,” and not “at all if you must repeat the pronouns in the immediate context.”

Third, Garner says that legal writers can simply avoid the pronoun problem by:

  • Deleting the pronoun. For example, instead of writing “No one can be elected to be a judge after he has reached the age of 65,” a writer can say “No one can be elected to be a judge after the age of 65.”
  • Changing the pronoun to an article like a(n) or the. For example, instead of writing “The attorney must file his brief by the deadline,” a writer can say “The attorney must file the brief by the deadline.”
  • Pluralizing the sentence so that he becomes they.

Although they generally approve of pluralizing sentences to avoid the pronoun problem, Strunk and White concede that if you over-pluralize your prose “you may find your prose sounding general and diffuse as a result.” In On Writing Well, William Zinsser concurs: Plurals “weaken writing because they are less specific than the singular, less easy to visualize.”

  • Substituting the relative pronoun who for he or she.
  • Repeating the antecedent noun making the pronoun unnecessary.

In The Elements of Legal Style, however, Garner cautions legal writers not to excessively repeat antecedent nouns. Overusing antecedent nouns, Garner says, “gives prose an un-English appearance and tires the reader.”

The analysis of the opinions from the 2006–2008 Supreme-Court terms referred to above showed that certain U.S. Supreme Court Justices use these methods. For example, Justices Samuel Alito and Clarence Thomas use these masculine-pronoun-avoidance techniques. And in my writing, I’ve found that the techniques of deleting the pronoun and pluralizing sentences can be effective ways to avoid using masculine pronouns.

Nonwords are No Solution

All of the techniques above are preferred ways to avoid the pronoun problem in legal writing. What’s universally contemptible, however, are the abominable nonwords hiser, s/he, he/she, she/he, or s/he/it, which Garner says are “typographical gimmickry”—trendy neologisms that are “ugly, distracting, and often unpronounceable.” William Zinsser calls nonwords like he/she “slants” that have “no place in good English.”

It’s a simple rule, really. Never use these nonwords.

They  Might Be the Future, But Avoid It Today

In On Language: All-Purpose Pronoun, O’Conner and Kellerman also point out that before Ann Fisher published A New Grammar in 1745, the default British generic pronoun was they. In fact, pre-1745 writers like Chaucer commonly used the plural pronoun they for the “singular and plural, masculine and feminine.”

American writers might someday revert to pre-1745 practice and begin using they as a generic pronoun, even if the antecedent noun is singular. But as Garner notes—paraphrasing H.W. Fowler’s 1965 Second Edition of Modern English Usage—”[s]peakers of [American English] resist this development [because] it sets many literate Americans’ teeth on edge.”

Legal writers should be wary of using the indeterminate plural pronoun they where a singular personal pronoun would otherwise be required. Someday it might be an acceptable or even preferred solution to the pronoun problem. But the English language—at least in the United States—isn’t there yet.

Serving Your Readers’ Needs Requires Sensitivity to Sexist Pronouns

In How Not To Write, the estimable William Safire asks, when addressing the pronoun problem, “Why accept a fiat from anti-sexism headquarters to change it now? Cool it, humankind; let the language change in its own time, not to fit the schedule of any –ism.”

Safire ignores that successful writers seek serve their readers’ needs, and they don’t intentionally trivialize those needs in the name of upholding an anachronistic predilection originated by an 18th-Century British schoolteacher.

Try the techniques above and see if you can’t be more sensitive to at least some of your readers’ preferences for non-sexist singular-personal pronouns. The world won’t end, and your readers will appreciate your consideration.

(photo: http://www.flickr.com/photos/phreak20/2580652325/)

  • Ricardo Barrera

    “Legal writers should be wary of using the indeterminate plural pronoun they where a singular personal pronoun would otherwise be required. Someday it might be an acceptable or even preferred solution to the pronoun problem. But the English language—at least in the United States—isn’t there yet.”

    Okay, but how does the US get there unless folks, including lawyers, start using the indeterminate plural pronoun?

  • http://blog.simplejustice.us shg

    Such awkwardness and confusion to avoid the potential of offense? Who is it, exactly, that is so deeply offended by standard usage of masculine singular personal pronouns? Nobody I care about. Not the judge. Not my client.

    They can think me sexist all they want.

    • Lisa

      When people say “he” refers to humans of either gender I feel like it is a token gesture akin to throwing a dog scraps. No one ever thinks about a woman when they hear the word “he.” Instead we visualize a man when we read this and only after we are told the subject actually being talked about is a woman do we shrug and say “well “he” can apply to women too.” This is not the way things should be done as it only reinforces the androcentric viewpoint of the world and does real harm to women who are trying to be seen as equals to men.

      • BR

        You have got to be kidding me!

        Think about what you’re saying.

        Using “he” “does real harm to women”????? You honestly believe this?! In our great world where people are murdered, raped, tortured, kidnapped, robbed, etc., using “he” in a sentence “does real harm to women”?

        Look lady, you’re free to write he, she, it, or he or she as often as you want! Why try to impose something different on someone else???

        I’m at a loss.

        • Lisa

          Yes. It does. Like I said it reinforces a androcentric world view so that people imagine males to be be the default human and women to be a special interest subgroup. The truth is more of humanity is female than male, but you would never be able to tell this by reading most of the things written in this world.

          • http://samglover.net/ Sam Glover

            It really would make everything easier if we just had a neutral pronoun.

            • Lisa

              Sam, I totally agree with you. Some people are saying we should just allow “they” to be used in the singular as well as the plural. Most English speaking people already do this when speaking, but it has not yet been accepted as proper to do when writing.

  • Melanie Callender

    The generic “he” is fine because it refers to humans of either gender in generic contexts. . . which is the point after all.

  • http://www.mycase.com/ Nicole Black

    Scott–It occurred to me recently when reading one of your posts at Simple Justice that you do a pretty good job of writing in a gender neutral manner. I can’t recall the exact post, but you used plural nouns (they/their) instead of singular thus resulting in gender-neutral language. So, although you may not do so intentionally, you’re leading the way. Quite the trail blazer, you are!

    • http://blog.simplejustice.us shg

      It was an accident, I swear.

  • http://www.editorsoftware.com Nick Wright

    We tackle the sexist pronoun issue in our copy-editing software, StyleWriter. We suggest replacing the singular-masculine pronoun when writing to a general audience. Of our thousands of users, we’ve only every had one person complain that the advice was not appropriate.

    It does strike me that most well-educated people understand the issue and respond with one of the suggestions in this excellent article. Some conservative writers remain and I’m sure we’ll never convince them to change from the ‘he’ or ‘him’ covers men and women school.

    However, I’d like lawyers to concentrate on more important drafting issues. For example, could we please get lawyers to stop using 40-word plus sentences and archaic terms. Then whoever reads the document, be it a ‘he’ or a ‘she’ has a chance to understand the document.

  • AK Wald

    I’m a young woman such that many of the academic articles I read are sensitive to the preferences of female, if not feminist, readers. If I am reading ideas (mainly philosophy works) that were written over fifty years ago, and there is a reference to “he” as a general pronoun, I accept that it is sometimes meant to include woman. However, when Hobbes and Rousseau delve into the nature of mankind, they are mainly speaking about men, and they have other beliefs that apply to women. A judge writing a hundred years ago about the conduct of lawyers is speaking about a group that consisted of men only.

    Fifty years ago and beyond, men were the primary interest and the primary, if not only, audience being considered by most of the authors using “he” as a general pronoun. Why should I now assume that all those instances of “he,” before women were accepted as literate, intelligent or at all equal to men, should now apply to me. Of course, I accept that some uses consciously intended to include women, but that is not the case for most of the older uses. Simply because women inhabit the world of men now does not mean that we were part of the consideration in that world while it was men only by default.

    For these reasons, when I read “he,” being used as a general pronoun, I have to think twice about whether the author is intentionally leaving out women, or whether he or she intends to include me. I cannot idly assume women are included in a “he” pronoun when for so long they were not, and when sexism-conscious writers of today often use a non-sexist replacement. Although this may be stubbornness on my part, modern authors who continue to use “he” when talking about both men and women, make me feel left out. I simply don’t think of myself as a he. Similarly, when I write and I reference men and women, I don’t leave men out.

  • BR

    I hate this issue so much that whenever I get to a spot where I need to use “he,” I just want to quit writing. It’s annoying that so many people are offended by the masculine pronoun. If the writer is a man, he should be able to use the masculine pronoun whenever he wants. If the writer is a woman, she should be able to use the feminine pronoun wherever she wants. This will seriously be remembered as the dumbest grammatical controversy in history.

    I’m almost at a loss for words about it. Almost.

    Is our time really that invaluable? Controversy about lawyers’ fees is an all time high, yet here we are spending our client’s hard-earned money trying to figure out how to properly use pronouns without offending the reader! Someone please smack me so I can wake up from this nightmare.

    I don’t care who you are, you can’t honestly say “he or she” doesn’t slow down your reading. It adds an additional character to the sentence—in every sentence that you use it! Why add this additional character?

    Look at the following examples:

    “The judge shall use his discretion when sentencing.”

    vs.

    “The judge shall use his or her discretion when sentencing.”

    Why do this? Do we not know whether the judge is a man or a woman? Is the judge so androgynous that we have to include a this-or-that scenario?

    On a serious note, it disrupts the mind because the reader now—even if only subconsciously—has to think about the possibility that the judge could be a male or female. It makes the reader think more about WHO the judge is, rather than simply about the discretion the judge should be using.

    I get that my two examples can be altered to completely avoid using “he,” BUT THAT’S THE PROBLEM! As lawyers, we shouldn’t have to spend our time constructing sentences so they don’t offend a potential reader!!!!!!!

    I can understand arguing against a rule that requires masculine pronouns—I would even argue against such a rule—but I can’t understand arguing for a new rule that requires us to use gender neutral pronouns when there wasn’t even a rule contrary to that in the first place.

    Note to male and female feminists: Use of the masculine pronoun was only as prolific as it was/is because most writers have been men. It’s natural to think about the world from our own perspectives. If you’re a man you see the world as a man. If you’re a woman you see the world as a woman. This basic notion goes beyond gender and includes the person’s race, nationality, religion, etc. Gender is different from the other components of individuality in that the use of a pronoun only requires one to identify with their own gender!

    Think about it. Saying, “The judge shall use his discretion…,” doesn’t make you think about the judge’s race, religion, nationality, or sexual orientation—because it doesn’t matter for the purposes of the sentence! All that matters is the discretion he’ll use. “He” is simply a necessary link in the chain to get you to where you need to go.

    Abiding by this norm/rule only encourages the outrageous expectations and sensibilities that have caused this controversy in the first place.