Antonin Scalia, English Grammar and Usage, Gender, Reader Polls

Grammer Pole of the Weak: Gender-Neutral Language and You

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Happy Friday, and welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of English grammar and usage over to our readers for discussion and debate.

Last week, we discovered that 82% of our readers are willing to strangle, maim, and kill over the use of the serial comma. Take that, AP Stylebook heathens!

This week, we’re turning to a more contentious issue: the use of gender-neutral language in law practice and legal writing. Interestingly enough, experts disagree on the matter.

Bros, should you be kind to the ladies when you’re using indefinite pronouns?

As you know, indefinite pronouns do not refer to any person or thing in particular, and are mostly used to generalize a group (e.g., anyone, everyone, nobody). And when using indefinite pronouns, you can run into pronoun-antecedent gender agreement issues.

The Grammar Divas have a great example of the ridiculousness that can occur when these gender agreement issues are present in your writing:

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Today, our culture views using male pronouns for everyone as biased. Since we’ve all been through sensitivity training, we worry about obliterating half the population. The result?

“If anyone asks for me, tell him or her I’ll get back to him or her tomorrow.”

Hurray! Everyone is in the pool. Except, the power of the sentence is weakened by calling the reader’s attention to the fact that the writer is trying too hard not to offend. Oops!

Heaven forbid that we offend anyone when we write. It might hurt his or her delicate little feelings.

Trying to be PC when using indefinite pronouns is for the birds. This will probably get my bra-burning card revoked, but I’m in favor of the historic use of “he,” “him,” and “his” to cover both sexes. And guess what? Supreme Court Justice Antonin Scalia agrees with me!

In Making Your Case: The Art of Persuading Judges (affiliate link), Justice Scalia argues that gender-neutral language sacrifices force and simplicity in legal writing. But his co-author, Bryan A. Garner, is a strong proponent of the use of gender-neutral language.

A downloadable article from the Duke Journal of Gender Law & Policy has more from Scalia (quoting from Making Your Case):

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[M]y esteemed coauthor … has displayed the inventiveness of a DaVinci and the imagination of a Tolkien in devising circumlocutions that have purged from my contributions to this volume (at some stylistic cost) all use of “he” as the traditional, generic, unisex reference to a human being, [to advance “invisible gender neutrality.”]

(Invisible, my eye. I’ll bet you can spot the places where force or simplicity has been sacrificed to second-best circumlocution. As for distraction: To those of us who believe that “he” means, and has always meant, “he or she” when not referring to a male antecedent, the ritual shunning of it to avoid giving offense to gender-neutralizers is . . . well, distracting.)

In Better Lawyer, a publication of the Columbus Bar Association, attorney J.H. Huebert says that while he agrees with Scalia, he writes with Garner’s insistence upon gender-neutral language in mind:

I strongly agree with Scalia – but put my personal preference aside when writing a brief, because one never knows whether a judge will take offense at the use of “he” alone. A lawyer’s duty to his client requires using the language that’s less likely to cause offense – even if the offense is not intended or, in in the lawyer’s view, not warranted.

So, readers, keeping these differing viewpoints in mind, we now turn this discussion to you. Should your writing be gender-neutral? Or will you throw PC etiquette to the wind and use the historic “he”?

Should your writing be gender-neutral?

  • Hell no! The pussification of our language has got to end. (68%, 793 Votes)
  • Of course! I don't want to offend anyone. S/he/it might cry! (32%, 380 Votes)

Total Voters: 1,170

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S/He? Him or Her? They? Gender Pronouns in Fiction [Grammar Divas]
The Supreme Court and Gender-Neutral Language: Setting the Standard or Lagging Behind? [Duke Journal of Gender Law & Policy – Downloadable PDF]
Book Review – Making Your Case: The Art of Persuading Judges [Better Lawyer]

Earlier: Prior ATL coverage of Grammer Pole of the Weak

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