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/)