This year Merriam-Webster added 640 new words to its dictionary and clarified the meaning of even more. For example, “gig economy” is now an official entry and the definition of “snowflake” now includes its use as a pejorative (for someone who is overly sensitive). Language changes. One change that is currently flummoxing some legal writers unnecessarily is the use of pronouns for transgender people.
The DOJ recently submitted a brief to the Supreme Court regarding an upcoming case over whether Title VII’s definition of “sex” as a protected class includes transgender workers. As the Associated Press reported, the DOJ managed to avoid using a pronoun involving the plaintiff in the case, a transgender woman, in its 110-plus page brief. The brief referred to the plaintiff by name only.
Linguistic agility is laudable, but it’s not clear what this avoidance accomplished. Instead, attorneys looking to stay up-to-date on the use of gender pronouns can use the below guidelines.
Inclusive Legal Writing
The Associated Press, along with several other news organizations such as the Washington Post, have adopted the plural pronoun “they” to fulfill the role of a gender-neutral singular pronoun. Writers can use “they” for people who identify as neither a he nor she, or for when it is unclear what pronoun an individual prefers.
“They” isn’t used much as a singular pronoun, however, mostly because transgender people often identify with a pronoun. Moreover, it can usually be avoided.
What Is the “Right” Pronoun?
Writers should refer to everyone by their preferred pronoun. For example, in 2016 the attorney for the school board in Gloucester County v. G.G. used the pronoun he to refer to a transgender male in a question over the right to use the boys’ bathroom. In a footnote, the attorney wrote that the use of male pronouns did not “concede anything on the legal question” of sex for purposes of Title IX. The case was ultimately dismissed due to President Trump’s policy change, but the attorney in the matter, Kyle Duncan, now sits on the 5th Circuit Court of Appeals. In resolving legal questions, being respectful never harms your position.
Occasionally, using “they” can be the least jarring. For example, Professor Heidi K. Brown, Director of Legal Writing for Brooklyn Law School, provides an example of the sentence “a taxpayer may owe a penalty when they file a late tax return.” Despite what your old professors may have thought of that sentence, most style guides approve. Of course, for true sticklers it is easy to make the noun plural. Less ideal is using “he or she” to replace “they.” Such phrasing reads awkwardly and is less inclusive.
Grammar matters in legal writing. We’ve all read about instances where lawsuits were lost for want of a comma. Attorneys can, and should, be sticklers for proper grammar. With a little thought, however, the writer can often end up with a result they are comfortable with. And no, don’t get me started on ending an informal sentence with a preposition. Or starting one with a conjunction.