He, They and Brief Writing

As an appellate lawyer sitting at home being notified about once a day of another court order delaying an oral argument or extending the deadline to file a brief or motion, I turn my attention to issues I thought I would never find time for (like pondering the merits of ending a sentence with a preposition).

So here goes one such issue. Consider the following sentence, “In modern times, a lawyer who wants to write a persuasive brief knows that he should not use “he”, except when he is referring specifically to a male, lest he offend.”

Because both words and gender equity matter, you need to have a strategy for dealing with the three offending “he’s”. One strategy is to rewrite the whole sentence, which may take a lot of time for which you may decide you cannot ethically bill your client. Another strategy is to change the three “he’s” to “he or she.” This strategy does not account for non-binary readers and otherwise trades antiquated, gendered writing for distraction, as the Justices notice your attempt at gender neutrality instead of the point you are trying to make to win your appeal. A third strategy is to repeat “lawyer” each time instead of “he”, which makes the brief read like a regulation.

Several more recent strategies are not likely to impress the Justices. Alternating the use of “he” and “she” is a recipe for confusion, and surely you are not going to try out neologisms such as “ter” or “per” or “s/he”.

Chloe, my wife, and I are at home for the crisis along with a violist, whose name is Jiawei Yan, who has been stranded here when she came from New York to play in a Hartford Symphony Concert several weeks ago. She was born in China and pointed out as I was pondering this editorial that in Chinese, the spoken word for “he” or “she” has the same sound. It is unfortunate that English similarly does not have one sound for the third person singular.

One way to capitalize on this insight that is gaining justifiable popularity today, and with which I agree, is to use “they” as a singular pronoun. We sometimes use this grammatical informality already, as in “Everyone should mind their own business.” Indeed, “they” in the singular sense has been used for centuries. Embracing an existing word is much easier than creating a new one, at least when it comes to pronouns.

We should all recognize that the pronoun problem is unique to the third person singular. “I” does not depend on gender. “You” does not depend on gender or even number (singular and plural). (Just as “you” takes the plural for its verb regardless of whether it’s being used in the plural or singular sense, so does “they”.) So why should there be a “he” and a “she”? If you want to focus on gender, you can always add a few words to do so, as everyone routinely does now for the first and second persons.

“They” gives women and non-binary persons true equality because the focus is on the subject matter of the sentence rather than gender. It also avoids the wordiness, clunkiness and ambiguity of other proposals. It may take time to acclimate lawyers, judges and justices to the singular “they”. I will bet the singular “they” will soon be the widely-accepted solution to the “he” problem.

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