The Singular “They” in Legal Writing
By Steve Klepper (Twitter: @MDAppeal)
There are few writing conventions as cumbersome as “he or she.” It’s not natural English. If you were to see the silhouette of a backlit person on the street, would you ask, “Who is he or she?” Or, like a normal person, would you ask, “Who are they?”
Nevertheless, teachers and professors drilled into me that the singular “they” was barbarism. The one exception was a common phrase like “to each their own,” because “to each his or her own” was an awkward bridge too far. “He or she” was necessary to be both inclusive and grammatically correct, even as writing otherwise moved in the direction of natural language.
This issue arises frequently in legal writing, which often involves discussions about a hypothetical individual, such as the “reasonable person.” I’ve used tricks to avoid the “he or she” problem. “If a Marylander wishes to apply for a license, he or she must first do X,” easily becomes “If Marylanders wish to apply for licenses, they must first do X.” But that work-around can be awkward, especially when overused.
It’s also a cop out. My family (traditional and chosen) includes non-binary people who use they/them pronouns. It’s important to non-binary people that we use their correct pronouns. It can cause them genuine distress to insist on using binary pronouns.
I’m sure some will read this post and cry “political correctness!” When it comes to legal writing, however, it’s a matter of legal correctness.
In 2014, the General Assembly amended the Maryland Human Rights Act to ban discrimination on the basis of gender identity in a variety of contexts. “Gender identity” is defined to include “gender expression,” erasing any doubt that non-binary rights are human rights under the MHRA. And, as you’ve probably heard, the Supreme Court just held that discrimination on the basis of sex, forbidden under Title VII of the Civil Rights Act of 1964, includes discrimination on the basis of transgender status.
If a brief or opinion uses the term “he or she” as an inclusive term for all persons bound by the law, the writer is not being inclusive or accurate. The writer is unwittingly excluding people, erasing the identities of people I love.
So why do I still pluralize hypothetical persons in my legal writing, instead of doing my part to make non-binary people visible? I have a duty of loyalty to my clients. My job is to advocate for them before appellate judges. Appellate judges tend to have unusually strong feelings on grammar. If you attend a “tips from appellate judges” program, you’re likely to hear about a few of their grammatical pet peeves. I know the singular “they” won’t lose a case I’d otherwise win. But still I fear doing anything that distracts from making my client’s case.
On this blog, however, I get to write for me, and I have a request. In 2017, two reported Court of Special Appeals opinions used the “cleaned up” parenthetical, with footnotes explaining that signal. Now both of our appellate courts often use “cleaned up.” When co-counsel or in-house counsel asks me what “cleaned up” means, or questions its appropriateness because it sounds too colloquial, I’ve pointed them to the opinions approving that usage.
The Maryland appellate courts would do a great service to non-binary Marylanders—and promote the policy goals of the MHRA—if an opinion were to use the singular “they” in conjunction with a footnote approving that grammatical usage. It’s natural language. It’s legally correct. It’s grammatically fine, no matter what your teachers told you.[*] And it’s the right thing to do.
[*] Heidi K. Brown, Inclusive Legal Writing, 104-APR A.B.A. J. 22 (2019) (“Writing style experts, including members of the Associated Press, copy editors at the Washington Post and the American Dialect Society already have recognized the singular they.”); Suzanne E. Rowe, As Language Evolves, Pronouns Leap Forward, 80-JAN Or. St. B. Bull. 17 (2020) (“One small pronoun is a giant leap for humankind—validating the identity of colleagues rather than treating them as a grammatical inconvenience.”); Kirsten K. Davis, He, She, or They: Thinking Rhetorically About Gender and Personal Pronouns, Appellate Advocacy Blog, Sept. 5, 2019.
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