| Oregon State Bar Bulletin — JUNE 2007 |
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By Suzanne E. Rowe
For centuries, the English language assumed that a person of unspecified gender was male. The pronoun "he" was used to refer to any person whose gender was unknown or unimportant. Relatively undervalued and underused, the pronoun "she" was reserved for instances when the person was known to be a woman and for professions such as nurse and secretary, which were naturally presumed to be occupied by the weaker sex.
Around the 1960s, writers discovered that women were present on the planet and that not all nurses were female. Some ignored these unpleasant realities. The more sensitive tried to account for the new discoveries by using the combination "he or she" to suggest that the person of unspecified gender might possibly be either male or female. That form got cumbersome; a document filled with "he or she" made readers care less about gender and about the document. As an alternative, some writers brought "s/he" briefly into vogue. Most readers saw the slash in the middle of a word as a typo or hiccup, and that form failed to win many converts.
Almost 50 years later, many legal writers still struggle with elegant ways to finesse our language’s gender-specific, singular pronouns. Avoiding awkward constructions, achieving clarity and recognizing the presence of female humans is not difficult. The following list of suggestions should arm you for any situation (though the last one carries its own controversy).
Repeat the Noun
The simplest solution may be to repeat the noun that "he" or "she" is
replacing. This solution is especially effective if there’s a gap of
several words between the noun and the pronoun.
When a shareholder misses a regularly scheduled meeting with associates, he must review the minutes of the meeting within two days.
When a shareholder misses a regularly scheduled meeting with associates, the shareholder must review the minutes of the meeting within two days.
Use the Plural
Often a sentence will be just as clear if the singular noun is changed
to a plural noun. After using the plural noun, you get to use the plural
pronoun "they," which is gender free.
A judge should exercise his discretion carefully.
Judges should exercise their discretion carefully.
If the writer is more concerned with careful exercise of discretion than with a particular judge, the second sentence is just as effective. And it gracefully avoids the problem of a gender-specific, singular pronoun.
Drop the Pronoun
In some sentences, gender-specific pronouns provide no necessary information.
Often these pronouns can be dropped.
A lawyer needs his time away from the office.
A lawyer needs time away from the office.
Alternatively, the pronoun can be changed to an innocuous "the."
An inexperienced paralegal will interrupt his attorney multiple times with minor questions.
An inexperienced paralegal will interrupt the attorney multiple times with minor questions.
Rewrite the Sentence
A quick reworking of a sentence could eliminate the pronoun, and with
it the need to specify a gender. The following sentence is fine except
for the masculine pronoun.
An employee will be excluded from workers’ compensation if he was an "active participant" in the fight that resulted in injuries.
The pronoun "he" in the sentence seems to suggest either that only male employees fight or that female employees involved in fights might still recover. Moving parts of the sentence around results in a clearer statement; any employee will be covered by the rule.
An employee who was an active participant in the fight will be excluded from workers’ compensation for resulting injuries.
Alternate Gendered Pronouns
When you absolutely need to use a singular noun and cannot rewrite
the sentence to avoid using the pronoun, consider alternating pronoun genders
in various examples. So the judge in the first example could be male, and
the judge in the second example could be female.
In one situation, a judge decided to recuse herself because she had been college roommates with defense counsel. In another situation, a judge chose not to recuse himself simply because he and defense counsel were members of the same hunting club.
In a lengthier piece, you may choose to have all of the judges in the first section of a paper be female and all of the judges in the second section be male. This choice could produce more effective writing if each section examined variations on the same theme.
Use Gendered Pronouns for Clarity
In relaying an example containing two parties, using gendered pronouns
could promote clarity. The CEO could be female, and the general counsel
could be male. As the story unfolds you could use pronouns effectively.
(Remember we are not changing the gender of known people; these are generic
examples with generic people.)
The CEO reviewed the settlement offer proposed by her attorney and wondered why he thought it would be beneficial for the company. They met early on Tuesday to discuss the details. The attorney explained what he had learned in conversations with opposing counsel. She responded that the company could not afford more publicity.
Notice the confusion that results in the following example, in which all actors are presumed to be male.
The CEO reviewed the settlement offer proposed by his attorney and wondered why he thought it would be beneficial for the company. They met early on Tuesday to discuss the details. The attorney explained what he had learned in conversations with opposing counsel. He responded that the company could not afford more publicity.
By the last sentence, we’re not sure who stated that the company could not afford more publicity — the CEO, the attorney or opposing counsel.
The Singular "They"
Grammar curmudgeons — including me — have to take a deep breath
on this final possibility for avoiding gender-specific, singular pronouns
in English. Breathe in slowly while I explain the background. Written language
evolves in large part by mimicking oral language. We speak more informally
than we write, and eventually the spoken form begins to sound fine and to
look fine in writing. Now exhale.
We all — including grammar curmudgeons like me — use "they" in conversation while speaking about a singular person. "I spoke to a student yesterday and they said …." Just listen to yourself, and you’ll hear "Call the client and see if they …."
Yes, it’s true. Spoken English has developed to the point where the pronoun "they" can refer to a single person whose gender is not specified. No less authority than the New Oxford American Dictionary notes that using "they" to refer to one generic person (e.g., someone or anyone) is "becoming more accepted both in speech and in writing." That dictionary admits that the singular "they" is still criticized in some circles, but prefers "they" to "he" in some instances. For example, "ask a friend if they would help."
While this example will sound fine to most people in informal speech, it would likely raise a number of eyebrows in a formal legal document. I’ll still mark it wrong on student papers, but I suspect that in 10 years I won’t. Until then, using the other suggestions for avoiding gendered pronouns is the safest approach.
SOURCES:
Terri LeClercq, Guide to Legal Writing Style (3d. ed 2004).
The New Oxford
American Dictionary (2001).
Richard C. Wydick, Plain English for Lawyers
(5th ed. 2005).
ABOUT THE AUTHOR
Suzanne E. Rowe is an associate professor at the University of Oregon
School of Law, where she directs the Legal Research and Writing Program.
© 2007 Suzanne E. Rowe