My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.
It’s catching on, even in legal writing.
Can we use the plural pronoun they to refer to a singular person whose gender is unspecified? Can we do this:
- The buyer might change their mind.
- Every vehicle owner must have their vehicle inspected annually.
- Always keep the reader in mind and try to meet their expectations.
Well, in speech and informal writing, many of us are already using this “singular they.” The singular pronouns in English—she, her, hers and he, him, his—are gendered, and if you don’t know the gender of the unspecified antecedent (buyer, owner, reader), you don’t know what pronoun to use, so we use they.
You could default to he, him, his. But there’s broad agreement that doing so is sexist, and many careful writers avoid defaulting to male pronouns for that reason. Still, using male pronouns for gender-unspecified antecedents is an established convention and one that some legal writers follow.
You could switch to the female, she, her, hers, and some writers do. That convention isn’t as common in legal writing, and because it isn’t common, it might attract more attention than you want.
You could use he or she or he/she each time. These pairs are entirely appropriate in formal legal writing, and they’re used regularly. For me, they can become tedious and distracting after a while, but they’re acceptable. By the way, a case-law search turned up a few instances of s/he, which, although used in other genres, still isn’t common in legal writing.
If those options don’t appeal to you, what should you do in formal legal writing? Two suggestions.
First, you can write around the problem every time it comes up. That takes some thought and effort as you edit, but with practice it becomes second nature. And writing around the problem is unlikely to distract readers. Some examples—
Pluralize—then the plural pronoun works just fine:
- All vehicle owners must have their vehicles inspected annually.
- Always keep your readers in mind and try to meet their expectations.
Repeat—being careful about potentially distracting repetition:
- Every vehicle owner must have the owner’s vehicle inspected annually.
- Always keep the reader in mind and try to meet the reader’s expectations.
Rephrase—to avoid the need for a pronoun:
- The buyer might have a change of mind.
- Every vehicle owner must have the vehicle inspected annually.
In my own writing, I’ve found that these three techniques work well.
Second, you could jump on the “singular they” bandwagon. That’s the position of two authors of a Michigan Bar Journal article called, “Evolving They.”[1] Brad Charles, a legal-writing professor, and Thomas Myers, a Michigan Supreme Court staff attorney, say the time has come to embrace the singular they: “More and more writing experts and guides are trumpeting that the once-plural-only pronoun may now be used as a singular pronoun .…”[2]
The authors cite as some of the trumpeting sources The American Dialect Society, The Washington Post’s style guide, and the AP Stylebook—which allows the singular they in “limited cases.”[3] The authors also note that Justice Sonia Sotomayor used a singular they in her majority opinion in Lockhart v. Unites States from 2016: “Section 2252(b)(2)’s list is hardly the way an average person, or even an average lawyer, would set about to describe the relevant conduct if they had started from scratch.”[4]
What do I do? I still write around the problem in formal documents, and I tell my students to check with their supervisor and then do what the supervisor says.
Finally, Charles and Myers encourage legal writers to respect a person’s preferred pronouns, acknowledging that some prefer they, them, their to the gendered pronouns. I encourage legal writers to respect those preferences, too.
My books: Legal Writing Nerd: Be One, Plain Legal Writing: Do It.
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[1] Brad Charles & Thomas Myers, Evolving They, 98 Mich. B.J. 38 (June 2019).
[2] Id. at 38.
[3] Id. at 39.
[4] Lockhart v. United States, 136 S. Ct. 958, 966 (2016).