Equitable, Gender-Neutral Language Means More Effective Advocacy

Pointers for gender-neutral legal writing.

As legal writers-whether our goal is to persuade, establish parameters, or inform-we want our audience to focus on substance, not style or the lack thereof. We do not want the language itself to impede the content, or awkward writing to mangle meaning. We also do not want to hit unintended notes. Instead, we want our language to be clear and direct. We want it to flow and be gender neutral.

What's the Big Deal?

Language that may distract, annoy, or possibly inflame the reader is language that any practitioner representing a client, and writing with a specific objective, should avoid at all times. Sexist language is one example, even if the gender bias in the language is inadvertent. Though the masculine pronoun traditionally has been the default, many people now consider gender-biased language outdated or offensive. At best, the reader may deem a writer using gender-biased language oblivious; at worst, such language may give the reader the impression that the writer is sexist. And a reader who feels ruffled by a writer's style or language probably will be less receptive to the content.

A clear and direct writing style creates a "halo effect" that enhances persuasiveness, credibility, and impact, as Bryan A. Garner, editor-in-chief of Black's Law Dictionary, noted in May in the ABA Journal. He wrote: "[G]rammar, spelling and punctuation are some of the first things an attentive reader notices. You see those things before you can assemble the meaning of paragraphs or the structure of arguments."

Gender-biased language can cast the same kind of shadow over the writer's purpose. So it behooves the practitioner to avoid the risk that readers will take exception to a gender-biased style and view the content with a dour or even irate eye. Instead, a legal writer should strive to write in a gender-neutral manner that lets the audience focus on the purpose of the writing.

Avoid Self-Consciousness

Writers should not, however, flag their gender neutrality with self-conscious language. This simply creates another form of awkwardness that detracts from effective communication. Alternating between the masculine pronouns he, him, and himself and the feminine pronouns she, her, and herself can seem contrived and may raise confusion as to whether the writer has begun referring to a new actor of the other gender. As Richard C. Wydick notes in Plain English for Lawyers, "If you are careless, you may perform a sex change on somebody in the middle of a paragraph."

Similarly, legal writers sometimes attempt to reflect gender neutrality by pairing the pronouns and writing "he or she" or "his or her," which can sound cumbersome and still exclude people who prefer gender-neutral pronouns. A second option-to merge pronouns, as in s/he or he/she-Garner sees as "ugly, distracting, and often unpronounceable." A third tool for avoiding gender-specific pronouns is the passive voice, but it creates vagueness and wordiness that writers should generally avoid. For example, "He breached the contract" clumsily becomes "The contract was breached." Some writers even attempt to use gender-neutral pronouns, which encompass not only people who identify as male or female but also transgender individuals. Examples include ee, herim, and hiser. Progressive though they may be, these nonspecific pronouns are still avante-garde to most people and are likely to distract and startle. They also may be perceived as malapropos gender activism and could alienate readers.

Better Alternatives

So what are legal writers to do, if they want to disassociate themselves from outdated pronoun usage yet avoid sounding convoluted and awkward? Here are three ways a writer can gracefully maintain gender neutrality:

1. Substitute the pronoun with an article or repeat the antecedent noun. Delete the pronoun and replace it with an article: "The homeowner's shack is not entitled to the same protection as his house" becomes "The homeowner's shack is not entitled to the same protection as the house." Alternatively, delete the pronoun and repeat the earlier noun: "The homeowner's shack is not entitled to the same protection as the homeowner's house."

2. Use "who" in lieu of the personal pronoun. This works particularly well when the sentence involves a conditional. "If a homeowner views his shack as part of the curtilage, he can demand a warrant for its search" becomes "A homeowner who views the shack as part of the curtilage can demand a warrant for its search."

3. Pluralize the pronouns. Pluralizing allows you to avoid choosing a gender. "The homeowner cannot expect his shack to be entitled to the same protection as his house" becomes "Homeowners cannot expect their shack to be entitled to the same protection as their house." Pluralizing, however, can muddy meaning and weaken the sentence's impact by multiplying a single precise subject into many. So use this technique sparingly.

Be Equitable, Be Effective Legal writing that avoids either overt or implicit sexism allows the reader to focus on substance. Skirting gender-specific pronouns in a manner invisible to the reader is the best approach. Practitioners who do not take a moment to be thoughtful about avoiding masculine pronoun traditions may be doing themselves-and their clients-a disservice.

Legal writing that does not distract or offend either male or female readers allows its true purpose to stay in the forefront of the reader's mind, unclouded by social assumptions?conscious or otherwise. Not only will the writing more effectively persuade, establish parameters, or inform, but the writer will contribute to the growth of a nonsexist, more equitable society, both within the legal profession and in general.

#307364

Donna Mallard

Daily Journal Staff Writer

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