The Singular “They” Reaches the White House, But Not the Appellate Courts

By Steve Klepper (Twitter: @MDAppeal)

Within hours of his inauguration, President Biden signed his Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order began:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

Focus on the first sentence. It uses the singular “they,” instead of “he or she,” to refer to an indeterminate person. That’s no coincidence in an order addressing discrimination based on gender identity.

The phrase “he or she” rests on the erroneous assumption that everyone is either a “he” or a “she.” Non-binary individuals do not identify as men or women. The easy fix is to write in plain English and use the singular “they,” just like the White House does.

I’ve written on this issue before—urging judges to abandon “he or she” and expressly embrace the singular “they” (in the same way they endorsed the “cleaned up” parenthetical). My proposal made no headway, so far as I can tell. The phrase “he or she” continues to appear regularly in Maryland appellate opinions. In the words of Arlo Guthrie, however, “I’m not proud … or tired.”

My nationwide Westlaw search for “singular they” has found one opinion—an unreported trial court opinion authored by Magistrate Judge Patricia Sullivan of the United States District Court for the District of Rhode Island. She wrote in a September 2020 footnote: “I face a familiar grammatical conundrum—what pronoun is appropriate to refer to a single human of unspecified gender. To resolve it, I am experimenting with an emerging solution: the use of they/their instead of the more traditional default he/his.”[*] This opinion is a step in the right direction.

To be clear, when judges use “he or she,” they’re doing it for the right reason. The phrase is meant to be inclusive, striking a blow for equal rights for women. When “he or she” came into wide use, few knew anything of non-binary people. I had no understanding of non-binary gender identity until the mid-2010s.

Language evolves, and advances in civil rights often force changes in language. President Biden’s executive order reflects that dynamic. The Maryland Human Rights Act, by covering “gender identity,” protects non-binary status. Marylanders now can select “X” instead of “M” or “F” on state-issued ID. If we’re striving for precision in legal writing, as we all should, the term “he or she” is legally inaccurate when describing Marylanders in 2021.

You know non-binary people, even if you may not know that fact about them. I encourage you to read a terrific new brief filed by Remy Green in an Oregon trademark dispute involving the word “enby,” a colloquialism for non-binary people. Mx. Green filed the brief on behalf of 553 enbies, including five Marylanders: Elizabeth, a teacher in Baltimore; Josie, a librarian and artist in Baltimore; Ann, a project manager in Laurel; Hayley, unemployed in Frederick; and L.X., unemployed in Frederick. They’re not lawyers. They’re ordinary Marylanders who care deeply enough to join a legal brief addressing the language they use to make their place in the world.

In case a more personal example helps, many readers of this blog have met my wife at social events. They’re non-binary. As their Twitter bio announces to the world, their pronouns are they/them. They’re comfortable with some gendered terms, like “wife” and “mom,” but not she/her pronouns. In the two years since they came out as non-binary, I’ve retrained my mouth and my ear for their pronouns, though I still have to correct myself sometimes. As part of that process, the phrase “he or she” has become nails on a chalkboard to me.

As a profession, we should take a deep breath, thank the phrase “he or she” for its decades of service to the cause of inclusion, and retire it in favor of language better suited to the civil rights landscape of 2021. When referring to an unspecified person, such as the hypothetical “reasonable person,” courts should use the singular “they” to encompass all genders.

The change should be a cause for celebration. For all the talk of gender dysphoria—distress typically caused by society’s refusal to acknowledge a person’s gender identity that does not align with their sex assigned at birth—there is also the phenomenon of gender euphoria. When a trans lawyer joined the Strict Scrutiny podcast to discuss the Supreme Court’s October 2019 Title VII arguments, he discussed how heartening it was when even the Solicitor General’s Office and conservative justices used language like “cisgender” and “sex assigned at birth.” Changes in language mean a lot.

The singular “they” is, quite possibly, the lowest-hanging fruit for judges to make Maryland a better, more equitable place. I’m not asking judges to use the word “irregardless,” or to use “literally” to mean “figuratively.” There is no trade-off, because it’s a simple matter of writing the way you talk, well within the bounds of proper grammar. If Maryland courts endorse the singular “they”—and drop a footnote to explain that the reason is to include non-binary individuals—they will bring genuine joy to often-marginalized people. We all win.

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[*] Levine v. Saul, No. 1:19-cv-00569, 2020 WL 5258690 at *1 n.1 (D.R.I. Sept. 3, 2020). I would have preferred that Judge Sullivan cite my blog post instead of (shudder) Wikipedia, but progress is progress. At least anecdotally, I’ve heard of judges outside Maryland using the singular “they” without explaining their conscious choice to do so. It’s very hard to search for such examples.