The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Singular "They" in Court


From D.C. v. Casa Ruby, Inc., decided May 1 by D.C. trial judge Danya A. Dayson, but just posted on Westlaw:

Therefore, specifically, as to each Third-Party board member Defendant, there must be factual allegations sufficient to support an inference or conclusion that the board member either intentionally, rather than negligently, inflicted harm on Casa Ruby, that they voted for or assented to a distribution made in violation of DC Code 29-406.33, that a board member intentionally violated a criminal law or that the board member received some amount of money to which they were not entitled.

{[Footnote accompanying the "they":] In this Order, the pronoun "they" is used as a singular pronoun to refer to a hypothetical person, consistent with prevailing practices in style guides. See, e.g., MLA Handbook § 3.5 (9th ed. 2021) ("[T]hey has gained acceptance as a generic, third-person singular pronoun used to refer to hypothetical or anonymous people."); APA Publication Manual § 4.18 (7th ed. 2020) (advising writers to "use 'they' as a generic third-person singular pronoun to refer to a person whose gender is unknown or irrelevant to the context of the usage."); The Associated Press Stylebook, they, them, their (55th ed. 2020) ("Arguments for using they/them as a singular sometimes arise with an indefinite pronoun (anyone, everyone, someone) or unspecified/unknown gender (a person, the victim, the winner)."); The Chicago Manual of Style ¶ 5.48 (17th ed. 2017) (noting that "because he is no longer universally accepted as a generic pronoun referring to a person of unspecified gender, people commonly (in speech and in formal writing) substitute the third-person-plural pronouns they, them, their, and themselves (or the nonstandard singular themself.))".}

This doesn't speak to the more modern pronoun dispute: the use of "they" to refer to named people, whose gender is known (whether or not they themselves prefer to be labeled "they"). It's also just one judge's opinion; I expect many other judges prefer to avoid this, and many others just use singular "they" without saying anything about it.

As for me, I still urge my students to avoid this, unless they have reason to think the judges who will be reading the brief are fine with it. Here's what I wrote about it two years ago:

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."