Singular "They" in Briefs: Best Avoided

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I've often seen students use the singular "they" in briefs, e.g.,

Even a public-figure libel plaintiff can prevail if they show a defendant acted with 'actual malice' ….

I don't think this is grammatically wrong; indeed, it has long been common in English literature. But it can annoy some readers, and distract others; and even if they are wrong in thinking it's wrong, you'll be less effective at persuading them. Sometimes you might feel some ethical obligation to put things in a particular way, even if it annoys or distracts some readers, but all else being equal, you should probably avoid that.

What are the alternatives? The generic "he" was once common, but now it annoys or distracts some readers. A generic "she" annoys or distracts others. "He or she" seems bureaucratese and fussy, especially because it will end up being repeated.

Usually, though, there's a simple solution: Make the antecedent plural, e.g.,

Even public-figure libel plaintiffs can prevail if they show a defendant acted with 'actual malice' ….

That should generally convey your point clearly and smoothly, with the readers focusing on your message and not your pronouns. In some situations, pluralizing things this way won't work; but usually it will.

And count your blessings that English doesn't have gendered "they."

NEXT: Meanings, Intentions, Original Law

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  1. What if "they" is one of their preferred pronouns? Then you jolly well better use the word.

    1. I was going to say, given that "they" is rapidly catching on among trans and nonbinary people, this advice is probably going to be outdated soon if it isn't already.

      1. Of course, language is a weapon in the class warfare.
        We need not let tiny minorities dictate the evolution of the language into a series of highly individualized grunts and groans

        1. It's not women, gays, etc., that started language as a weapon, it's just that they've recognized that that's the case.

          1. Who said that women, gays, etc. started it? The insight predates the woke era by decades.
            Trying to pick another fight tonight, QA?

      2. "I was going to say, given that “they” is rapidly catching on among trans and nonbinary people, this advice is probably going to be outdated soon if it isn’t already."

        That's going to be real interesting as Spanish increasingly becomes our national language because in Spanish, *all* nouns are (a) either masculine or feminine, and (b) are preceded by a gender designator. E.g. "el train", "la casa."

        1. Clearly Spanish has to go.

          1. Didn't we win that war back in 1898?

        2. Alerta de spoiler: Spanish is not increasingly becoming our national language.

          1. ¡Di que no es así!

      3. I was going to say, given that “they” is rapidly catching on among trans and nonbinary people, this advice is probably going to be outdated soon if it isn’t already.

        I'm not seeing the connection. Why would the fact that it's more common to use they as the pronoun for a specific person make it more acceptable to use it for a generic person whose sex (or gender, if you prefer) is unspecified?

        Moreover, the sorts of judges who object to a generic they now strike me as among the least likely to modify their aesthetic or linguistic judgments based on the preferences of "trans and nonbinary people".

        1. Singular "they" is not wrong (as the good Prof. concedes), but some people think it is. Prof. Volokh's advice is to cater to the people who don't use English correctly.

    2. What are the rules for the singular they if the person doesn't use they? Using the singular they might be an act of violence.

      1. All the rules for singular-they are for when you're talking about either (A) a real person you don't know the gender of, or (B) a hypothetical person that can be any gender.

        If you know the gender of the person you're talking about, just use their pronouns. By virtue of talking about a specific known person, you're beyond these rules already.

    3. My dialect of English doesn't allow "they" for a known person.

      1. Your book is obviously genderist at best.

        1. Or it's just wrong.
          Prescriptivist twaddle.

    4. The lawyer profession is relentless in its attacks to destroy the American patriarchal family. Ending gender is part of that attack. The family is 100 times more effective than the lawyer wholly owned subsidiary, government, at teaching moral behavior. Their competitor, the family, must be destroyed.

      When the lawyer uses the feminine pronoun as default or a tortured gender neutral expression, that is the stigma of the Democrat douche bag. That person has lost all credibility as an advocate. Douche bags are not persuasive, they are the opposite. Any tendency to agree with them would end right there.

      The American family must be saved from this attack by the lawyer profession. The most toxic occupation in the country should be cancelled. No lawyer should be allowed on any bench, in any legislative seat, nor in any responsible policy position in the executive. An Amendment should be enacted excluding anyone who have passed 1L from these positions. I think it could get a lot of support by real Americans. The alternative is: 65 million gun owners own 300 million guns.

      1. Point to the doll where the lawyer touched you.

    5. Call me old fashioned, but whatever happened to using people's names? It's why we *have* names...

      Although I like "you" -- it's both singular and plural, and covers all three cases (masculine, feminine, and neuter).

  2. Making the antecedent plural is my go-to fix for this problem. So simple and it often saves words.

    I did have a case where the plaintiff was anonymous and I used "they" in the singular, though.

    1. It's awkward, but you could also repeat "plaintiff" instead of using a pronoun. Until you run up against page limits, then you need a shorter word.

      1. " Until you run up against page limits, then you need a shorter word."

        You could use "Plaintiff, (P)" for the first usage and "P" thereafter. Make it read like a law-school exam.

  3. What if the party has multiple personalities? Then "they" is accurate, in a way.

    1. Then you might use the time dependent form, s/he(t).

  4. It may be common but it is still grammatically wrong. Worse, it is potentially confusing and inhibits communication.

    I grew up under the "generic he" rule for the singular third-person pronoun. Some find the "generic he" rule annoying. I generally find that hyper level of political correctness annoying.

    "He/she" may be bureaucratic and fussy but it is unambiguous and far less trouble than trying to sort out the seemingly endless artificially invented terms such as "ze" , "xe" or "e".

    Restructuring your sentence to third-person plural just to avoid the problem may work in some situations but it will not work in all of them. At least, not without sometimes creating more ambiguity and confusion than you were trying to avoid.

    1. I used s/he in my textbook.

      1. I like it myself but it’s only a matter of time before that is seen as representing violence upon the feminine by literally severing it. 🙂

        1. It's clunky and pretty much nobody likes/prefers it.
          Much the same way you won't find many people who speak favorably of that time, at the end of the date, someone found out from their date that s/he hasn't been completely honest about their full background.

      2. I have used he/she/it before, although when in a truly cynical mood, for internal documents, I've used s/h/it.

        1. You only use the /it if you're an asshole.

          1. Fortunately, for Dr. Ed, that's not a problem for he/she/it.

    2. Rossami: What exactly do you mean by "grammatically wrong," given the evidence I linked to? Austen, Shakespeare, Auden, Swift, and Thackeray not good enough for you?

      1. An uppity English teacher in Germany once told me "they" was grammatically wrong. It's funny, because you point to literary geniuses as references. Someone might reject that for being conservative and traditionalistic ("just because we always did it that way, doesn't mean it's right, muh progress!")

        If you say language is what people "vote into the dictionary" by using it every day, you probably have a point and "they" is fine. But then you have people pushing pronouns like "snowflakee/snowflakeim" (some crazy person did that in the comments below).

        What are we gonna do now? I think that some sorta alternative set of pronouns will end up in a dictionary pretty soon, if it hasn't already.

        1. "An uppity English teacher in Germany once told me “they” was grammatically wrong. "

          "Wrong" in the context of foreign language instruction means something different than "wrong" in a more general discussion.

          1. Foreign language instruction by a non-native speaker also tends to mean "out of touch with the language reality of native speakers."

            Maybe I should have mentioned that she was not at all open to the idea that "they" is just really commonly used and accepted by most Americans. She was just a dictionary elitist. And unimportant, like most of them.

            1. There is an eternal debate between the presciptivists and the descriptivists on the nature of language. The prescriptivists want clear, simple rules that are easy to describe and apply. Language doesn't usually work that way. Leaving Esperanto out, because Esperanto doesn't actually have any native speakers. Esperanto was invented to be everybody's second language.

              1. Thank you for providing that example. Esperanto wants to be everyone's second language and is almost no one's second language because it is essentially artificial and forced. And in the same way I believe woke pronouns like xe/xim have no future, as they are artificial and forced and even have an air of diktat.

      2. The definition and origin of "they" is as the third-person plural pronoun. The gender-neutral third-person singular pronoun is "it". Unfortunately, "it" implies no gender rather gender-unknown.

        The lack of a third-person singular gender-unknown pronoun in English is clearly a long-standing problem. And yes, many literary sources have used "they" as a less-bad alternative. Less-bad is not the same as good or right.

        We like to think that English has no single "authority" for proper usage but that doesn't mean that no authority exists. Until someone convinces grade-school grammar teachers and the authors of grammar textbooks to list "they" as the preferred third-person singular gender-unknown pronoun, then it is still wrong.

        1. "The lack of a third-person singular gender-unknown pronoun in English is clearly a long-standing problem."
          The problem derives from the lack of formal (or polite) forms of address or reference in modern English.

          Even in languages with such form variation have been seen in different political periods. The Italian Fascists often used the second person plural rather than the second person familiar or third person formal forms.

        2. " many literary sources have used 'they' as a less-bad alternative. Less-bad is not the same as good or right."

          Language choice is "correct" when the audience gets the message intended by the speaker, and it is "incorrect" when they do not.

        3. " Unfortunately, 'it' implies no gender rather gender-unknown."

          What "it" actually implies depends on context. Sometimes it implies inanimate object, sometimes "it" implies an intention to be insulting.

      3. As you say, 'they' as singular is quite common in older literature. Insistence on 'he', or later 'he-or-she' was a hyper-correct suggestion from the same set of late 18th century grammarians who told us not to end sentences with prepositions, and we should use nominative case pronouns in "This is he", and "it is I." Advice largely based on trying to apply the rules of Latin grammar to a language with a much different history.

        It's also worth noting that we use "them" for a verb object where the antecedent is an indefinite singular, for example, "If anyone calls, tell them I will call them back later. That's perfectly natural, unassailable English, and doesn't catch anyone's attention. "They" in subject position stands out in part because it drives verb agreement, and "he or she is" becomes "they are", making the 'pluralism' more apparent. But if I recall correctly, the use of 'they' for the singular impersonal goes back to Middle English.

    3. “Some find the “generic he” rule annoying. I generally find that hyper level of political correctness annoying.”

      Would you also think it a “hyper level of political correctness” to be annoyed by a “generic white” (or “generic black”) rule if our English were racist instead of sexist? If not, why are you OK with your language being sexist, but not racist?

      1. Would you be annoyed with a language where "arch1" was an obscene synonym for "douchebag who makes up hypotheticals out of thin air"?

        1. I guess this is your tactful way of asserting that the hypo* is irrelevant. Its relevance is that it may prompt those who minimize the sexism of actual English, but are repulsed by the racism of hypo-English, to ask themselves whether this distinction is driven by a principled difference, or simply by unexamined familiarity.
          Maybe you can manage a substantive response that doesn’t violate blog rules this time, or is that a bridge too far?

          1. *the hypo isn’t mine, though I would be proud to have thought of it. The idea came from an easy by Doug Hofstadter.

    4. As I understand English (and Latin) grammar, singular is gendered -- in Latin with all three (M/F/N) cases, in English only two (M/F).

      So, what English did was consider an unknown *animate* object to be a "he" and an *inanimate* object to be a "she." That's why ships are "she" even if they are named after a man (e.g. "Edmund Fitzgerald"). Lobster boats are often named after one's wife or mother, so "Jane, she" is the boat while "Jane, he" is the wife, who is, of course, female.

      And it's an absolute violation to define a singular item as a plural because plural means MORE THAN ONE. So unless someone is schizophrenic, someone can not be a "they" or "them." Can. Not. Be...

      And what infuriates me is that when I read "they" or "them", I presume that there is a second person mentioned and have to go find the second individual -- who isn't there.

      1. Most of the English gender system died in a series of wars a thousand years ago. First the Vikings, then the French did it in. The French gave us a few now optional feminine suffixes (actor / actress). In the core of the grammar pronouns held on. Unknown inanimate objects, and lesser animate objects, can be referred to as "it". The deer that ate my rhododendron is an "it" (and I wish it were rendered inanimate). The neighbor's dog is "she" if I need to use a pronoun, which I usually don't. When meeting a new dog I hope for the owner to cue me with the right pronoun. So far, nobody's singular dog has been a "they" but I'm sure it will happen.

        1. Being from Maine, I may speak archaic English, but both the deer and the dog are HE unless you know they are female.

          As I like to point out to women, even in the summer, water in the Gulf of Maine is in the low 50s. If you fall overboard, do you want a correct gender designation, or can you live with the "Man O'rbd" call and everyone rushing to expediently fish you out?

          When they realize just how cold 50 degree ocean water actually is, they decide they can live with the expedient "Man O'rbd."

          1. I have been told when rock climbing, any falling object is a "rock!" even it is in fact a hammer, a backpack, a he, a she, or a they. Time is of the essence.

          2. "Being from Maine, I may speak archaic English, but both the deer and the dog are HE unless you know they are female."

            You must have found that one song in "The Sound of Music" to be quite confusing. They somehow know the doe is a female deer.
            You know it's poaching to shoot the female deer, and your characterizing it as male won't stop the warden from writing you up.

      2. Ed,
        do you actually think that English and Latin characterize all the world's languages? If so, think again. Fortunately English does not have a dual as does Slovenian or adjectives that must agree in gender with nouns and pronouns. In Italian you could use the third person polite, but that should be capitalized.

      3. "And it’s an absolute violation to define a singular item as a plural because plural means MORE THAN ONE. So unless someone is schizophrenic, someone can not be a “they” or “them.” Can. Not. Be… "

        Spouting nonsense again? You assert that something "Can. Not. Be..." where it is actually quite common.

        Pound this idea into your head using whichever blunt instrument is closest to hand, Ed. "Singular They" Is. Not. Plural...

    5. "It may be common but it is still grammatically wrong. Worse, it is potentially confusing and inhibits communication."

      Yeah, it's *WAY* confusing to use language the way it's commonly used.

      It's not wrong, it's just the way you don't like it. I don't have to care about how you like it.

  5. Well, my preferred pronouns are "snowflakee/snowflakeim". I heard other prefer "snowflakshe/snowflaker".

    1. "snowflakeim" is definitely the preferred form

    2. How appropriate, given that singular they seems to trigger you.

      1. Huh? What triggers me? Your argument looks like it has no base in reality. Pretty Escherian.

    1. "It" is not properly used to describe people (unless one means to be intentionally insulting.)

  6. That depends on the person. In some cases "it" would be the most accurate descriptor

  7. I prefer the gender neutral, it, to refer to lawyers and other Democrats. This is more PC bullshit. And, all PC is case, 100% the fault of the horrible lawyer profession. All PC is fear of ruinous investigations and litigation for unconstitutional discrimination claims. All anti-discrimination laws, rules, actions violate the Ninth Amendment. This is the most toxic occupation in the country. It is 10 times more toxic than organized crime, and must be crushed to save our country.

    1. Why should anyone give a damn what you prefer? Is there some reason to cater to raging idiots?

      " All anti-discrimination laws, rules, actions violate the Ninth Amendment."

      I'm sure you prefer a Constitution with no 13th, 14th, or 15th amendments but you're stuck with the one we have, not the one you might wish to have.

  8. I don't think this is grammatically wrong; indeed, it has long been common in English literature. But it can annoy some readers, and distract others;

    Sort of like writing "free reign" instead of "free rein."

    1. That substitution betrays even more ignorance, as bad as writing "too" for "2."

  9. Tell your students you have an opinion on this grammatical subject. Don't tell them what it is. Make them work to find out. Call it preparation for some real-world situations.

    I don't like the old singular they (person of unknown gender). I'm sure I use it in speech, but I don't like to write it down. I don't like the new singular they either (known person), and I'm sure I don't use it in speech. I was warned in a writing class some decades ago that generic "he" was old fashioned even then. I don't like generic "she". So as suggested above I tend to use the plural.

    1. And I pull out my red pen and circle it.

      1. And that's why your tenure applications keep coming back.

  10. I'm SO GLAD I'm retired and don't have to worry about this carp any more!
    If you're a practicing lawyer, you will use the language that the judge or agency or client likes, no matter what your personal preferences. If you're an academic, I have no advice for you, never having been in that field.
    Not on this particular topic, but related: a few years ago I read a history book (early American) in which the author explained that he was not going to use the term "slave"; instead he would refer to "an enslaved person". I thought, Oh well, that's political correctness! No, when you actually read the text written that way, it causes/forces you to think. Try it.

    1. " If you’re an academic, I have no advice for you, never having been in that field."

      If only someone, somewhere, would publish some kind of style guide for academic legal writing. Make the cover some distinctive color so it's easy to find when you need to reach for it.

  11. Eugene, if you want to write something about a thing your students are doing that's a pet peeve, you should frame it that way. I can't think of a single professional practicing attorney or judge who is going to be meaningfully "distracted" by the use of singular "they." This seems almost entirely the province of an academic with too much time on their hands.

    1. I would be shocked if Prof. Volokh has any problem with singular they, so I'm not sure why you would take this as anything other than sincere advice. And if you don't think that there are judges with strongly-held views about proper (and, more importantly, improper) usage, you need to meet some more judges. See, e.g., http://volokh.com/2009/11/19/spurious-grammatic-rules-of-every-sort-are-my-abhorrence/

      1. The sincere advice would be (I should hope) to write the way whoever's paying you to write prefers it to be written.

  12. Or one can remove gender altogether:

    Even a public-figure libel plaintiff can prevail by showing a defendant acted with 'actual malice' ….

  13. Seems like another solution is to just use the pronoun that applies to your actual party.

    So, if your actual plaintiff is a man and your actual defendant is a woman, use the generic he when taking about any plaintiff and the generic she when talking about any defendant.

    1. This is a great solution, if you know the pronoun that applies. But if you don't know... then that advice is not as helpful.

  14. The problem can often be avoided by a construction that avoids all pronouns. For example, the sentence Eugene uses to illustrate the issue -- "Even a public-figure libel plaintiff can prevail if they show a defendant acted with 'actual malice'" -- can be written as "Even a public-figure libel plaintiff can prevail, by showing the defendant acted with 'actual malice.'" It's shorter, clearer, and avoids all this silliness about gender pronouns.

  15. The main issues here are that (a) the language is inherently unfair, and (b) loaded with grammatical traps.

    We need to construct a new language such that (a) any ordering of randomly selected words is grammatical, and (b) it's impossible to say anything unfair or unsafe.

    1. There is such a language. (It has simplified spelling rules, too.)

      But if writing carefully is a bother, it seems that law would not be an ideal choice of career.

  16. On Wikipedia, each article has a “talk” page where editors discuss the article. (There is a tab at the top of the page to get to this.) Even when I announce that my “preferred pronoun” is “he,” Wikipedia editors insist on referring to everyone by “they” or “their.” Do I have a cause of action for intentional misgendering? It seems to me that this would be an obvious case of misgendering per se, caused by rampant cisphobia.

    1. You've got a good case, as soon as your state legislature passes the anti-misgendering act and a related long-arm statute that says anything done on the Internet is subject to state law. Until then, the courts will probably continue to laugh directly into your face when you complain.

  17. When using they as the chosen third person singular pronoun for a transgendered person do we use there singular or plural verb? They is at the store or they are at the store? The New York Times had used the latter.

  18. You use the compound form is/are. They is/are at the store. They is/are gonna kick your ass if you keep pointing at they like that.

  19. There are two different uses of the singular they in English; one of them is very common, has centuries of antecedents, and has been used by just about every writer whose command of the language has been commended to students over the years. The other is quite rare, relatively modern, has not been used in high-quality writing until very recently, and is much more controversial.

    The first is when referring to a person of unknown gender (this may be a hypothetical person, a known person whose gender is unknown to the writer, or a person whose gender is known to the writer but has not yet been disclosed to the reader). Lawyers regularly write in reference to hypothetical persons, but the other cases are more common in other writing. You can find plenty of examples of this sort of singular they in writing by any excellent, authoritative writer you care to name (Shakespeare, Austen, etc). Note that the generic he can only be used for a hypothetical person - in the other two cases, because it is possible that it could be revealed that the person is female, switching from the generic he to the specific she is much more confusing (and much inferior use of language) than from a generic they to a specific she.

    I tend to avoid the generic he for two reasons, first because it requires considering whether the person is hypothetical or merely an actual person of unknown gender, and second because I've seen a "he" that is stereotyped rather than truly generic too often; too many writers will use a generic "she" when that fits the stereotype (lots of nurses and receptionists and so on), and I think that the point at which you're using both when they match the stereotype is where you cross the line from a particular style of English (very rule-bound and rather old-fashioned) to just plain sexism - and, since many readers will, not unreasonably, perceive the generic he to be the stereotyped he, this seems to be a solid argument to avoid it.

    The second case is if when referring to a person of known gender, you use "they" because that person's gender is other than male or female. I think it's the least-worst case (I really dislike neopronouns, though I will use them for people who strongly prefer them, because my language preferences are no excuse for insulting people). It is much more jarring to use "they" with a clear personal referent. I think it's the only option - imposing "he" or "she" on someone who goes to the length of specifying that they don't want either is clearly incorrect, which leaves either "they" or avoiding pronouns altogether.

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