Success at persuasive writing depends in no small part on establishing credibility with the reader. With that in mind, it is wise to avoid outmoded, archaic phrases and terms—especially those that smack of gender bias and exclusivity. But trying to “root out sexist language,” as legal writing expert Bryan Garner and many others advise, frequently forces a confrontation with a well-known problem of the English language: the lack of a singular, gender-neutral pronoun to refer to a human being.
Take, for example, the following sentence: “[The code section’s] list is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if ____ had started from scratch.”
Which personal pronoun should we use to fill in the blank and refer to “an average person” or “an average lawyer?”
For hundreds of years, English writers have commonly used he to refer to a single, unknown person of irrelevant gender with the idea that the word encompasses she. But by the 1960s, this practice began to draw criticism as being sexist, as indicative of an androcentric (patriarchal) view of the world and a rigid, traditionalistic conception of gender roles in society. Consequently, the words, he or she (and him or her), or the terms, he/she and s/he started to appear in texts in lieu of he in reference to an unspecified person: “The judge should try to read the briefs as they are submitted to him or her.” We even saw she take the place of he: “It is the tenant’s duty to keep the premises that she occupies clean, as the condition of the premises permits.” But fixes like these did not fully resolve the problem. He/she and s/he looked and sounded clumsy then as they do now, and use of more than one he or she in a passage felt awkward and still does today. Use of the stand-alone she, moreover, can confuse the reader or come off as overtly political and thus distract from the point. Furthermore, none of these options is truly inclusive, and acknowledging that this is the case—that not everyone identifies as male or female—is becoming expected of the mindful and well informed.
So where does that leave us? We could use a typical work-around, such as repeating the determiner (antecedent)—that is, we could fill in the blank in the first example with the words, “the average person or average lawyer,” or just, “the person,” but the result is rather inelegant. We also could pluralize the antecedent and then fill in the blank with they: “[The code section’s] list is hardly the way average people, or even average lawyers, would set about to describe the relevant conduct if they had started from scratch.”
Or we could fill in the blank with they and leave the rest of the sentence as is—thus using the word as a singular, gender-neutral pronoun. Funny as it may seem to some, employing the pronoun in this fashion would not be incorrect and has become increasingly common. They is a word in flux. Last year, Merriam-Webster added to they’s entry, “used to refer to a single person whose gender identity is nonbinary.” And, though the grammar instructors of our youth probably slashed through the word in red ink if it appeared in reference to a singular antecedent, these days, wielding they in text to refer to a single person—especially one standing for many—is recognized as valid by authorities as venerable as Merriam-Webster and the Oxford Dictionary of English. Lexico.com, affiliated with the latter, provides the example, “Ask a friend if they could help.” Merriam-Webster gives us, “An employee with a grievance can file a complaint if they need to.” As Dictionary.com—based largely on Random House Unabridged Dictionary—explains, “use of they and its forms after singular indefinite pronouns [such as everyone, anyone, or someone] or singular nouns of general personal reference or indefinite gender is common and generally acceptable.” But remember to still use the plural form of the verb: “When everyone is together, they all have a jolly good time.”
They as a singular pronoun is not new to the English language. In fact, it goes back to the 14th century, when medieval authors such as Chaucer used it to refer to singular and plural, masculine and feminine beings. In the chivalric romance Sir Amadace, for example, we find the sentence, “Each man in their degree.” Some 200 years later, William Shakespeare wrote in A Comedy of Errors, “There’s not a man I meet but doth salute me/As if I were their well-acquainted friend.” But then came along Anne Fisher who, in the mid-1700s, declared in her guide, A New Grammar, that the generic he should be used in lieu of they in formal English because “the Masculine Person answers to the general Name, which comprehends both Male and Female; as, any Person who knows what he says.” Afterward, most grammarians insisted on he as a gender-neutral pronoun on the grounds that they cannot follow a singular antecedent, although many esteemed authors continued the practice. Wrote E.L. Doctorow, “Everyone knew where they stood.” Taken out of context, the statement is quite paradoxical.
Now that they as a singular pronoun is experiencing a resurgence, should we embrace it in legal writing?
United States Supreme Court Justice Sonia Sotomayor seems to think so. The sentence used as our first example, “[The code section’s] list is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if they had started from scratch,” came from her pen, when she authored the majority opinion in Lockhart v. United States (2016) 136 S. Ct. 958, 966 (emphasis added).
Heidi K. Brown, the director of legal writing at Brooklyn Law School, wrote in a 2018 article for the ABA Journal that she decided to accept the “evolving grammatical modernization” of the singular they: “I need to be open to change on this pronoun rule in order to model inclusive legal writing.”
In “Evolving They,” an article that appeared last year in the Michigan Bar Journal, co-authors Brad Charles, a legal-writing professor at Western Michigan University-Cooley Law School, and Thomas Myers, a Michigan Supreme Court staff attorney, encouraged their fellow lawyers, “as wordsmiths,” to take up the practice of using they as a singular pronoun and touted its benefits: “The flexibility gained is in avoiding the clumsy he or she, capturing collective nouns [like the audience] with increased comfort, and respecting those who prefer a gender-neutral pronoun.”
Myers and Charles point out that we already use another pronoun—you—to refer to one or more than one person. Hundreds of years ago, the word was only employed in the plural sense, and thee or thou was considered the proper reference to a single individual.
Garner has been predicting for decades that advocates of using they as a singular pronoun will prevail. In the third edition of his Modern American Usage, published in 2009, he wrote, “That it sets many literate Americans’ teeth on edge is an unfortunate obstacle to what promises to be the ultimate solution to the problem.”
About the Author:
Savannah Blackwell is an attorney and former news reporter who covered government and politics in San Francisco for more than a decade. She can be reached at email@example.com. Follow her on Twitter at @SavannahBinSF.