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Heidi K. Brown
ABSTRACT: The singular they: this four-letter word packs enough power to foster clarity, accuracy, inclusion, and respect in legal writing.
English grammar traditionalists have argued that the use of they to refer to a singular antecedent is grammatically incorrect. This article proposes that good legal writers actually can enhance and foster clarity, accuracy, inclusion, and respect in pleadings, briefs, and judicial decisions through purposeful and intentional usage of the singular they (and other pronouns).
Section I of this article notes changes underway in the United States toward recognizing individuals’ pronoun usage outside the historical he/she binary, and acknowledging the singular they. Section II touches on how language impacts human relationships and can—and must—evolve as our society naturally forays into new frontiers. Section III surveys how and when well-respected American (non-legal) writing style guides embraced the singular they. Section IV describes how legal writing experts have transitioned from advising lawyers to write “conservatively” with regard to gender-neutral writing for fear of confusing readers, to a new approach of using straightforward footnotes or textual sentences to pointedly explain why the writer is using a particular pronoun. Section V provides a glimpse into the successes and challenges of inclusive writing movements in other countries and legal systems, highlighting language activists’ arguments that gender-inclusive language helps remedy the grammatical “erasure” of marginalized citizens. Section VI offers examples of how American lawyers and judges have effectively used litigants’ and witnesses’ personal gender pronouns, including the singular they, in pleadings, briefs, and judicial decisions.
This article concludes with a call to action for legal writers to use the singular they in circumstances involving persons of unknown gender, who identify as non-binary, or whose identity should remain confidential, as a proactive tool to enhance clarity, accuracy, inclusion, and respect in legal documents. Lawyers and academics cannot cling to outdated grammar rules—simply based on tradition—and ignore necessary societal shifts, or we risk disrespecting and alienating clients, litigants, finders-of-fact, and decision-makers. Instead, we can use individuals’ personal pronouns with intention, and educate ourselves and our legal community in the process.