The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/546018
Gender-neutral language is by now widely accepted in the legal profession. Any doubters should consider the numerous articles by judges 1 and legal experts 2 who support it, as well as the statutes and legal documents nationwide that have been re-drafted in gen- der-neutral language. 3 After all, our profession should promote jus- tice. As one judge wrote, when lawyers' language excludes "more than one-half of the population, then surely something is awry." 4 In English, language can exclude women with biased wording in two principal areas: with male-linked generic pronouns and with gendered nouns. The pronoun problem occurs when a writer uses a pronoun to refer to a person of unknown or unspecified sex. Eighteenth-century grammarians had a rule for this: use the masculine pronoun for a generic reference, because the masculine includes the feminine. Their rule would produce this sentence: "A lawyer should file his brief on time." Today, that sentence jarring, because nearly 50 per- cent of lawyers are women. Here's another application of the old rule: "Man, being a mammal, breastfeeds his young." 5 That sen- tence is humorous because the masculine never really did include the feminine. Still, some careful writers are reluctant to use gender-neutral lan- guage because it can be cumbersome. I agree—it can be. As William Safire punned, a construction like s/he is "unspeakable." 6 Even worse are invented words, like ter instead of he or she, or herm for her or him. 7 And using "they" as an all-purpose reference for singular nouns is ungrammatical. Although it's becoming com- mon in spoken English—"A student left their book here"—it's still not acceptable in formal writing, which lawyers are expected to use in most of their communications. All of these proposed solutions will cause readers to stumble, detracting from the effectiveness of a document. But it's possible for a lawyer to produce graceful, grammatically correct prose while eliminating gender bias by following a few suggestions. 1. Write the sentence in the plural, eliminating the need for a gendered pronoun: "Lawyers should file their briefs on time." 2. Use the passive voice: "Briefs should be filed on time." The passive voice has its pitfalls—it can be wordy and vague—but occasionally it can be a good choice to circum- vent the pronoun problem. 3. Restructure the sentence: "It is important to file briefs on time." Perhaps include a genderless pronoun in the new structure: "One should file a brief on time," or "Lawyers who file briefs late can be sanctioned." 4. Repeat the noun: "If a lawyer is concerned about credi- bility with the court, the lawyer should file all briefs on time." This works well only when the passage is longer than the original six-word example above. 5. Alternate pronouns for different roles: "If a lawyer files his brief late, the judge may lose her temper." This approach also works best with a longer passage. 6. Use pronoun pairs: "A lawyer should file his or her brief on time." The last three suggestions above can be intrusive, so they should be used sparingly. But by applying the six guidelines carefully, a lawyer can avoid biased pronouns without caus- ing readers to stumble. A second area of bias concerns gendered nouns. Until recently, gendered nouns like stewardess, waitress, and mailman made un- necessary distinctions on the basis of sex, often making women seem subordinate. Those terms have now largely been replaced with flight attendant, server, and mail carrier. Lists of other non-bi- ased words for occupations are available on the Internet. 8 A lawyer would do well to be aware that gender-biased language can affect readers negatively. As one judge wrote, it can become like "a cinder in the eye," alienating some judges and their staffs. 9 Not all judges react that way; Justice Scalia famously does not. 10 But deftly-written prose can avoid being a cinder in the eye to some while remaining effectively graceful for others. 1 E.g., William B. Hill, A Need for the Use of Nonsexist Language in the Courts, 49 Wash. & Lee L. Rev. 275, 275 (1992). 2 E.g., Anne Enquist & Laurel Currie Oates, Just Writing: Grammar, Punctuation and Style for the Legal Writer 136 (3d ed. 2009). For additional examples, see Judith D. Fischer, Framing Gender: Federal Appellate Judges' Choices about Gender-Neutral Language, 43 U.S.F. L. Rev. 473, 486-88 (2009). 3 See, e.g., Gender Bias in the Courts Task Force, Gender Bias in the Courts of the Commonwealth Final Report, 7 Wm. & Mary J. Women & L. 705, 786 (2001) (Stating that "[M]ost language in court publications [in Virginia] is gen- der-neutral," and recommending that "[a]ll court documents be reviewed peri- odically for gender-neutral language."). 4 Hill, supra note 1, at 276. 5 Casey Miller & Kate Swift, Words and Women 25–26 (1976). 6 William Safire, I Stand Corrected 179 (1984). 7 See William R. Todd-Mancillas, Masculine Generics=Sexist Language: A Review of the Literature and Implications for Speech Communication Professionals, 29 Comm. Q. 107, 113 (Spring 1981). 8 E.g., owl.english.purdue.edu/owl/resource/608/05/. 9 Judith S. Kaye, A Brief for Gender-Neutral Brief-Writing, N.Y.L.J. 2, 2 (Mar. 21, 1991). 10 Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 119 (Thompson/West 2008). 42 B&B; • 7.15 E F F E C T I V E L E G A L W R I T I N G TIPS FOR INCORPORATING GENDER-NEUTRAL LANGUAGE By: Judith D. Fischer ADVANCED INVESTIGATIVE SOLUTIONS INC. The preeminent investigative firm in the region AIS, a worldwide cadre of former FBI Agents and state /local law enforcement professionals, can assist you and your clients with: • Complex Investigations • Polygraph • Forensic Accounting • Security Assessments • Background Investigations Carl F. Christiansen aisinvestigate.com 502-722-1931 ais@twc.com