The Supreme Court and Gender-Neutral Language: Setting the Standard or Lagging Behind?

Rose, Leslie M., Duke Journal of Gender Law & Policy

[T]he law lives through language and we must be very careful about the language we use. (1)

INTRODUCTION

Law students learn the law and the language of the law from casebooks--casebooks filled with Supreme Court opinions. So, for example, when students begin Constitutional Law they will read Chief Justice John Marshall's influential 1803 opinion in Marbury v. Madison and learn that:

   The very essence of civil liberty certainly consists in the right
   of every individual to claim the protection of the laws, whenever
   he receives an injury.... [The] government of the United States has
   been emphatically termed a government of laws, and not of men. (2)

Continuing through the Constitutional Law text about 500 pages, law students will read Lochner v. New York, written 100 years after Marbury, and discover that:

   In every case that comes before this court, therefore, [the]
   question necessarily arises: Is this a fair, reasonable and
   appropriate exercise of the [police power], or is it an
   unreasonable, unnecessary and arbitrary interference with the right
   of the individual to his personal liberty or to enter into those
   contracts in relation to labor which may seem to him appropriate or
   necessary for the support of himself and his family? (3)

Jump ahead another century to Melendez-Diaz v. Massachusetts, (4) an important case from the 2008 Supreme Court Term, (5) likely to appear in future casebooks. Here, students will be confronted with a description of a constitutional right framed in language that excludes women:

   The defendant always has the burden of raising his Confrontation
   Clause objection; notice-and-demand statutes simply govern the time
   within which he must do so.... It is common to require a defendant
   to exercise his rights under the Compulsory Process Clause in
   advance of trial, announcing his intent to present certain
   witnesses. [Citations omitted.] There is no conceivable reason why
   he cannot similarly be compelled to exercise his Confrontation
   Clause rights before trial. (6)

What students learn from these opinions may not be limited to what the authors intended. They will learn that "male" is the norm, (7) even in the world of law, and they might wonder if Marbury and Lochner were even intended to apply to women, since both cases predate female suffrage. (8) Marbury and Lochner reflect their historical time in their use of masculine pronouns to refer to all people. However, today, when clarity and precision are paramount in legal writing, and more than half of today's law students are women, the Supreme Court should be embracing gender-neutral language.

Most modern legal writing texts and style manuals recommend that writers use gender-neutral language. (9) Gender-neutral language is achieved by avoiding the use of "gendered generics" (male or female nouns and pronouns used to refer to both men and women). For example, gender neutrality could be achieved by referring to "Members of Congress," rather than "Congressmen," and by changing a few words in the previous quotation from Melendez-Diaz:

"The defendant always has [the] burden of raising a Confrontation Clause objection; statutes simply govern the time within which the [defendant] must do SO." (10)

As this article demonstrates, most members of the United States Supreme Court still use male-gendered generics regularly. This practice freezes the Court in the non-inclusive and imprecise writing style of Marbury and Lochner and perpetuates a style of communication that no longer suits the needs of modern practice.

Most of the advice on gender-neutral writing is directed at lawyers and law students; it emphasizes that this technique is part of good advocacy and effective communication with the reader--usually a judge. (11) This advice applies equally to judges. (12) Despite these recommendations, the practice is not universal among legal writers. (13) It can be hard to convince both new and experienced legal writers that the heightened consciousness and extra editing required to achieve gender neutrality is worth the effort when a similar effort is not reflected in their models--the appellate court opinions they read, particularly the opinions of the U.S. Supreme Court.

This article argues that the members of the Supreme Court should avoid the use of gendered generics because such language communicates subtle sexism, distracts the reader, and creates ambiguity. (14) Whether considered through the prism of feminism, or through the lens of the modern legal writing movement's emphasis on clarity and reader reaction, the Court's continued use of male-gendered terms to refer to all people can no longer be seen as benign. As the most influential members of the legal profession, the justices should be setting the standard, creating a model for law students and lawyers. Unfortunately, most of the justices are not. (15)

This article analyzes the Court's use of gender-neutral language during the 2006, 2007, and 2008 Terms. (16) This research shows that only one justice consistently uses gender-neutral language, that four justices consistently use generic male pronouns, and that the rest fall somewhere in between.

Part I of this article defines gender-neutral language, discusses alternatives to gendered generics, and summarizes the concerns of the critics of the gender-neutral language movement. Part II reviews the key developments in the modern history of the shift toward gender-neutral language, generally and in the legal arena. Part III explains why gender-neutral language in judicial opinions matters by reviewing relevant social science research on subtle sexism and placing judicial writing in the larger field of modern legal writing. Part IV presents and analyzes the results of research into the language used by the members of the Roberts Court. The article concludes that the members of the Court should and can increase their use of gender-neutral language without sacrificing style. The Supreme Court's influence on legal thinking is so profound that its responsibility extends beyond reaching results to communicating those results as effectively as possible.

I. WHAT IS GENDER-NEUTRAL LANGUAGE?

A. Gender-Neutral Language Defined

In its broadest sense, gender-neutral language is achieved by avoiding "gendered generics," which are masculine or feminine nouns and pronouns used to refer to both men and women. (17) For example, gender neutrality could be achieved by referring to "police officers," rather than "policemen," or by changing a few words in the earlier quote from Marbury v. Madison: "The very essence of civil liberty certainly consists in the right of [all] individual[s] to claim the protection of the laws, whenever [they] receive[] an injury." (18)

In discussing gender-neutral language, some authors focus exclusively on the avoidance of male generics. (19) This makes sense because there are few examples, historically, of the inappropriate use of female generics. (20) Writers often refer to such language as "sexist." (21) The "sexist" label, however, may not be the best way to further the goal of linguistic change. While male-gendered generics may communicate "subtle sexism," one should not assume that the writer is "sexist." (22) The use of such a negative term may have the unintended effect of unfairly labeling the writer and closing down discussion. (23)

This article steps out of the paradigm of "sexist language" to frame the discussion in a way that focuses on the multiple reasons for legal writers, including judges, to move toward a gender-neutral style, by examining the language and its merits in a broader context that includes, but goes beyond, sexism. (24) For purposes of this article, gender-neutral language is a more useful term, (25) one that may make the message more likely to be heard. (26) As Justice Ginsburg recently noted, "if you want to influence people, you want them to accept your suggestions, you don't say, [']You don't know how to use the English language[."] ... It will be welcomed much more if you have a gentle touch than if you are aggressive." (27)

B. Alternatives to Gendered Generics

   The best course today is to eliminate sexist language while not
   resorting to ugly or awkward linguistic artifices. The purpose, of
   course, is to avoid distracting any variety of readers, from
   traditional grammarians to feminists. (28)

Alternatives to the most common and most non-inclusive gendered nouns are readily available in writing manuals. (29) The Dictionary of Occupational Titles, made available on-line by the U.S. Department of Labor, provides many examples of job titles free from gender stereotyping, including "fisher" (fisherman), "worker" (workman), "appliance repairer" (repairman), and "salesperson" (salesman). (30)

While avoidance of male-gendered pronouns is more challenging, a number of effective alternatives exist. These include using plural nouns and pronouns ("pluralizing"), repeating the noun, using an article instead of a pronoun, using the relative pronoun "who," using paired pronouns ("he or she"), and recasting the sentence to avoid the need for a pronoun. (31) The most noticeable technique is paired pronouns; most style manuals recommend using more "invisible" techniques whenever possible. (32)

A more controversial alternative that appears to be gaining popularity is the technique of alternating masculine and feminine pronouns. Some style manuals include this as one acceptable approach to avoiding the generic use of masculine pronouns. (33) A writer employing this technique might alternate between using male and female pronouns by book chapter, by page, or by actor. (34) Some members of the Court use this approach occasionally; Justices Ginsburg and Stevens use it frequently by, for example, using male-gendered pronouns when referring generally to criminal defendants and female-gendered pronouns when referring generally to judges. (35)

While this technique may be appropriate in some contexts, it can be problematic in scientific and legal writing. (36) Alternating pronouns is not technically "gender neutral" and does not address the problems inherent in the use of gendered generics. (37) Several studies by social scientists have demonstrated that this technique is an ineffective method for avoiding generic masculine pronouns because readers perceived alternating pronouns to be just as gender-biased as masculine pronouns and rated the text as lower in overall quality than text with male-gendered generics. (38) In addition, the alternating technique may be "jarring to the reader" due to the difficulty in "maintain[ing] two mental images"; more cognitive resources are required when the words are used in isolation. (39) The authors of one study acknowledged that some writers might decide to risk using this technique to "motivate readers to think differently about sexism in language and in general." (40)

Several alternatives are not recommended or accepted in the world of formal legal writing, including the use of the word they as a singular pronoun and "slash constructions" (s/he, he/she). (41) Although the use of they as a universal singular pronoun has deep historical roots, (42) such use is not currently considered grammatical because it poses a problem of subject-verb agreement. While the singular they might slip by in speech, in formal writing it is more likely to be noticed and frowned upon. Ultimately, it may become an accepted gender-neutral pronoun for use with both singular and plural antecedents, (43) but law may be the last to adopt such a practice. (44)

II. MODERN TRENDS IN GENDER-NEUTRAL LANGUAGE

A. General Trends

Attempts to modify gender-biased language date back to the 12th Century. (45) However, the modern feminist movement of the 1970s became the impetus for a renewed look at non-inclusive language, particularly concerning women. (46) Most notable and most successful was the adoption of the term "Ms." as an alternative to "Miss" and "Mrs.," which eliminated the practice of announcing a woman's marital status through the title, something not communicated by "Mr." (47)

In 1975, the American Psychological Association published its first guidelines on nonsexist language. (48) Other academic and professional organizations including the American Philosophical Association, (49) the Modern Language Association, and the American Medical Association, followed suit in the 1980s by requiring authors to use gender-neutral language. (50)

In 1980, Casey Miller and Kate Swift published their groundbreaking book, The Handbook of Nonsexist Writing, to help writers, editors and speakers "free their language from unconscious semantic bias," (51) and "to provide practical suggestions to speakers and writers already committed to equality as well as clarity in style." (52) They included a discussion of "the pronoun problem" and the unsuccessful attempts to create a new generic pronoun. (53)

Around the same time that Miller and Swift were providing writers with alternatives to "man as a false generic," (54) the authors of arguably the most popular book on writing were providing writers with numerous examples of male-gendered generics. In the 1979 edition of the Elements of Style, Strunk and White used generic nouns and pronouns throughout the book, (55) commenting in one section that "style not only reveals the spirit of the man but reveals his identity, as surely as would his fingerprints." (56) By 2000, however, the fourth edition of the book acknowledged that "many writers" find generic masculine pronouns "limiting or offensive" and offered some alternatives. (57)

Also in 1979, the author of a paperback entitled Write Right! noted that "[t]he attention currently being given to sexism in our language is resulting in some wide swings of action and reaction. We have not yet settled down to a steady middle course wherein we drop the unnecessarily sexist expressions but at the same time avoid the extremes advocated by some." (58) She welcomed the adoption of "Ms." and "worker's compensation," but complained about "the flap over person v. man." (59)

By the mid-eighties, researchers who had reviewed three recently published American dictionaries reported a "trend toward nonsexism." (60) The preface to the second edition of Random House Webster's Unabridged Dictionary noted that the social and cultural movements of the seventies and eighties, including the women's movement, had influenced "attitudes toward language and its use." (61) This influence was reflected in the authors' efforts to "make the wording of the definitions and illustrative examples gender-neutral, and to point up, in relevant Usage Notes, current usage, choices, and attitudes regarding gender-neutral and gender-specific terms." (62)

In 1999, The Oxford American Dictionary and Language Guide placed the gender-specific definition for "man" first ("an adult human male, esp. as distinct from a woman or boy") and the generic meaning ("human beings in general") second. (63) The accompanying usage note acknowledged that "many consider" the second definition "offensive and sexist." (64) The 2003 edition of The Chicago Manual of Style recommends the use of gender-neutral language and includes suggestions for achieving it, while acknowledging that "it takes thought and often some hard work." (65)

One of the most significant recent examples of the growing trend toward gender-neutral language can be found in Congress, where Representative Nancy Pelosi now wields the gavel as the first woman Speaker of the House. (66) On January 5, 2009, the United States House of Representatives updated its standing rules to reflect gender neutrality. For example, references to the word "chairman" have been changed to "chair" and male-gendered pronouns have been replaced by articles or by repetition of the antecedent noun. (67)

B. Trends in Legal Writing

While some style mavens were struggling with the changes in language, legal writers in 1979 could turn to Richard Wydick's Plain English for Lawyers, which introduced a section on "Sexism in Legal Writing" with the admonition that "[t]he time has passed when legal writers can pretend that the world is inhabited by males only." (68) Wydick then provided two pages of gender-neutral alternatives. (69)

Today, most legal writing texts and manuals continue to recommend the use of gender-neutral language and list techniques to achieve it. (70) Although the authors agree on the general principles, some include the caveat that gender neutrality should be sacrificed if the result is awkward or distracting. (71)

Despite the failure of many law students, lawyers, and judges to follow the advice contained in these books, (72) the legal world has seen some movement in the direction of gender-neutral writing. For example, the change from "reasonable man" to reasonable person" as a legal standard is an obvious, notable change in legal terminology. (73) Numerous law journals now encourage authors to use gender-neutral language (74) and a number of states have made their jury instructions gender neutral. (75) In addition, many state court style manuals advise attorneys to use gender-neutral language. (76)

Two recent studies have specifically addressed the use of gender-neutral language in the legal profession. Pat Chew and Lauren Kelley-Chew evaluated the written work of judges, lawyers, and legal scholars by comparing the use of gendered nouns during the period between 2004 and 2006 with the period between 1994 and 1996. (77) They found a lack of "significant change" between the two periods, (78) but noted "a small but positive movement toward the use of gender-neutral words in the last decade" by judges and lawyers. (79) In contrast, Judith Fischer's study of the use of gender-neutral language in federal appellate opinions demonstrated a "dramatic increase" in the use of gender-neutral language between 1965 and 2006. (80)

C. Criticisms of Gender-Neutral Language

The movement toward gender-neutral language is not without detractors. (81) Some critics believe that the issue is too trivial to warrant the effort required to change writing habits they see as rooted in tradition. (82) For example, a 1998 study found that up to eighty percent of the students surveyed supported "changing some aspects of sexist language," but up to fifty-three percent "were still resistant to changing at least parts of the language." Their resistance was reportedly based on "the difficulty of change for the individual and the pervasive influence of perceived tradition in society." (83)

Critics in the legal writing world have expressed concern that the elimination of the masculine generic pronoun would have a negative impact on writing style and readability. (84) Justice Scalia, in particular, has opined that the elimination of "he" as a "traditional, generic, unisex reference to a human being" is both distracting and comes with "some stylistic cost." (85)

Others see any movement to change language that offends some group as "politically correct" and ultimately ineffective in achieving underlying societal change. (86) For example, in the foreword to a new editing guide for lawyers, the author explained why she chose to use alternating pronouns throughout the book:

   An aside about sexist pronouns: The fracas over how to avoid
   favoritism has gone on for some time, and, apart from such
   efficient (and perhaps ephemeral) unisex inventions as s/he or the
   constraining cop-out of using only plurals, it appears to remain
   unresolved. How to deal with the issue is, to my mind, a matter of
   taste; our choice of pronouns is not what enslaves women or keeps
   men oblivious to the offense of the omnipresent "he." (87)

The criticisms of gender-neutral language are encapsulated in a brief exchange between an author and the student editors of the Georgetown Law Journal. In 1994, the Journal published a letter from Steven Shavell, an article author who objected to the Journal's policy against male-gendered generics. (88) Professor Shavell listed three objections to gender-neutral language he considered "obvious": 1) the writing would be "stilted and unnatural, upsetting to our aesthetic sensibilities (which have been molded by use of the male pronoun forms in our language and literature)"; 2) the writer might not want to "be associated with" the "particular political connotation" that the use of gender-neutral language carries; and, most importantly, 3) freedom of expression would be compromised, resulting in "a flow of work that is reduced and distorted in content, and a situation rife with opportunity for abuse by those with censorial authority." (89)

As the editors pointed out in their response to Professor Shavell, the use of male-gendered generics is not neutral; it can communicate its own political connotations (90) and may indeed upset the "aesthetic sensibilities" of a significant portion of the audience. (91) In fact, Professor Shavell need not have feared censorship; his article was published as he wished, with the inclusion of male-gendered generics. (92) The Journal "encouraged" authors to use gender-neutral language; it did not mandate the practice. (93)

As discussed above, a number of alternatives are available to writers who wish to avoid masculine generics. While these techniques take some thought, they are no more difficult than the many adjustments writers must make in order to be understood. (94)

As discussed in the next section, the use of gender-neutral language in legal writing can contribute to clarity and reduce distraction, if handled with care. While it is not the cure for sex discrimination, language can have a substantial impact on the reader. As Professor Cathy Jones has pointed out, this issue is more than trivial because communication is central to the legal profession and "[n]o profession is more reliant on precision in language than law." (95)

III. WHY GENDER-NEUTRAL LANGUAGE MATTERS

   The greatest difficulty in planning any change in a language is
   demonstrating a need in order to gain the acceptance of the people
   who use that language. (96)

The use of gendered generics can communicate subtle sexism, distract, and create ambiguity. (97) These problems are particularly an issue in judicial opinions because they are designed to be used; they communicate rules that must be understood and followed. For the Supreme Court, gender-neutral language is additionally important because its opinions are so widely read, and they act as models of legal writing for law students.

A. Gendered Generics Can Communicate Subtle Sexism

   Language matters. The use of only male pronouns may imply a world
   populated solely by men, or that certain roles or spheres are
   reserved solely for men or for women. Women have long been excluded
   from the practice of law and the powerful positions within this
   discipline.... Against the backdrop of this history, the use of
   only male pronouns is not a neutral exercise; rather, it is a
   political choice. (98)

The consistent use of male-gendered generics to represent all people can have a psychological impact on women by making them feel excluded and by reinforcing traditional gender stereotypes--even when that effect is not intended. (99) Social science research demonstrates that language is a social force that can have an impact on how women view themselves and are viewed by others. In particular, the "linguistic relativity hypothesis" claims that "culture and language are intertwined and that the words that people use affect the way they see both the world and their self-concept." (100)

Contrary to the argument that "he" includes all people, researchers have found that male-gendered words actually conjure male images. (101) For example, a 1996 study showed that when an occupation's title was male ("city councilman"), people were more likely to describe the "average person" in the occupation as male. (102) In legal writing, while we might not find this male association objectionable when the antecedent is a generic criminal defendant, (103) it creates a problem when the antecedent is, for example, a federal district judge. (104)

Other studies confirm that the use of masculine generics has negative effects. (105) For example, a 1986 study concluded that generic masculine terms, even when intended to refer to all people, operate in practice to apply only to males. (106) The authors of this study were concerned that their findings indicated that male-gendered generics could negatively impact women "during the recruitment and hiring process in a male-dominated organization" and deter them from entering certain fields. (107)

These concepts are applicable to the legal field. For example, when the authors of Supreme Court opinions continually use male generics to refer to lawyers, legislators, judges, political candidates, and property owners, (108) the subtle sexism is that these are jobs usually held by men. The subtlety of such sexism does not prevent it from being harmful. (109)

The harm of subtle sexism can be seen in the annual statistics compiled by the American Bar Association Commission on Women in the Profession, which show that, while the status of women in the legal profession has improved, equality remains elusive. The most recent studies show that women still lag behind in pay and status. While more than half of all law school graduates are women, these numbers are not reflected in the ranks of the judiciary, in Congress, in tenured professorships, or in law firm partnerships. (110) In 2009, The American Lawyer magazine released a study demonstrating that "while the ranks of female partners have grown steadily, women still account, on average, for fewer than one in five big-firm partners." (111) The numbers for women with elite academic credentials are not necessarily better. For example, during the 2006 Supreme Court Term, only seven out of thirty-seven law clerks were women. (112) In addition, the number of women whose work is published in the law journals of the top-ranked schools is disproportionately low. (113)

While there may not be a direct line of causation between the language used in court opinions and the disappointing statistics for women in the profession, language can be seen as a piece in a larger puzzle. For example, Chew and Kelley-Chew have concluded that the continued use of subtly sexist language in the legal community "effectively reinforces our acceptance of its debilitating messages about women," (114) which can result in "very real and damaging effects":

   Employers and clients may be less likely to see women as successful
   professionals assuming leadership roles. Faculty and classmates may
   be less likely to see women as worthy law students and future
   lawyers. Women … 

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Publication information: Article title: The Supreme Court and Gender-Neutral Language: Setting the Standard or Lagging Behind?. Contributors: Rose, Leslie M. - Author. Journal title: Duke Journal of Gender Law & Policy. Volume: 17. Issue: 1 Publication date: January 2010. Page number: 81+. © 2009 Duke Journal of Gender Law & Policy. COPYRIGHT 2010 Gale Group.

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