Legal Writing, Gender, and Gender-Neutral Language

Across categories of judicial opinions, briefs, and law review articles, the use of male-gendered pronouns and generics (such as using _businessman_ instead of _businessperson_ or _layman_ instead of _layperson)_  when referring to all people is prevalent. (_See_ 16 Colum. J. Gender & L. 643, 661 (2007)) Experts are divided on whether the use of gendered language is appropriate. Some say that striving towards gender-neutrality in text is unduly cumbersome. Other experts, like Bryan A. Garner, argue that using gender-neutral language gives the writer credibility to a wider range of readers.

I am a proponent of  using gender-neutral language when referring to all people, particularly in legal writing. My reasons are both practical and political. I agree with Garner that using gender neutral language bolsters a writer’s credibility to a wider range of readers. In part, this is because of the politics involved. American culture has taken significant steps away from the notion that “she” is included in “he”–politically and socially. Readership, regardless of gender, might very well consider the use of male-gendered words a failure to reflect this social shift linguistically. It might also be offensive to a reader who interprets the use of male-gendered words to be an exclusion of all others from certain spheres, despite the writer’s intent.  Similarly, unlike the times when the legal profession was only open to men, and, therefore, most readers of legal writing were men, a reader might not be a man. If not, a piece that uses male-gendered language could alienate the reader. Alienation causes any reader to disengage, hindering the writer’s persuasiveness and credibility.

Additionally, male-gendered words, such as “man” or “he” are not synonymous with “people” and, therefore, are not the most precise word choices. The lack of precision can cause reader confusion. For example, when a writer intends to articulate a law or principle applicable to all people and uses gendered language to do so, a reader can easily be confused into thinking the writer is only referring to the particular parties at issue. Indeed, studies support the likelihood of reader confusion from the use of male-gendered words:  for most readers, using words like “chairman” instead of “chairperson” evoke images of men in those roles, not of all people.

Using gender-neutral language is also important from the perspective of equality. Our social reality and language are related. Seemingly innocuous language can reinforce gender stereotypes and status differences, despite the writer’s intention. Using language that includes only men marginalizes and excludes the experiences of others. It symbolizes, endorses, and perpetuates gender inequality. Because the law plays a significant role in shaping the boundaries of human interaction and progress, using gender-neutral language in legal writing is a subtle, yet powerful, tool for advancing equality.

There are several techniques for avoiding gendered words that should be used in conjunction with each other. Varied and thoughtful use of the techniques will help avoid the primary criticism for using gender-neutral language: that it is cumbersome.

1. Pluralize.  Instead of “Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he has committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance”  (Judulang v. Holder (slip opinion, J. Kagan)) write  “Take first  aliens convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that they have committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance.’”__

2. Repeat the noun. “Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that the alien has committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance.’”

3. Use paired pronouns. “Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that he or she has committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance.’”

4. Use “they” as a singular pronoun. This technique is only starting to gain acceptance in writing. Because it is still controversial, if you choose to use it, reserve it for instances when you know your reader well or for more causal writing. “Take first an alien convicted of conspiring to distribute cocaine, whom DHS seeks to deport on the ground that they have committed an ‘aggravated felony’ involving ‘illicit trafficking in a controlled substance.’”

1. Avoid gendered generics. The implications of gendered generics sometimes go unnoticed because the use of these words is widely accepted. The most obvious gendered words are “man” (i.e. “all men are created equal”) and words containing “man” (i.e. mankind, man-made, mailman). Be aware of these words and replace them with gender-neutral alternatives (i.e. humankind, synthetic, mail carrier).

2. Be consistent with how proper nouns are treated.  If you refer to men by their last name, refer to women the same way. Refer to women by their full titles, just as you would with men. Use “Ms.” instead of “Miss” or “Mrs.”  ”Ms.”–like “Mr.”–does not indicate whether a person is married or single and, therefore, does not define a woman by her relation to a man.