Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, April 22, 2014

Proposing New Gender Neutral Pronouns for Legal Authorities

C. Marshall Thatcher (South Dakota) has published What is "Eet"? A Proposal to Add a Series of Referent-Inclusive Third Person Singular Pronouns and Possessive Adjectives to the English Language for Use in Legal Drafting, 59 S. Dakota L. Rev. 79 (2014).

Adoption of the new pronouns and possessive adjectives proposed below ["ee" and "eet"] would put an end to the '"masculine rule." Under that rule of prescriptive grammar, the third person singular pronoun '"he' is both a male and an indefinite sex referent." By necessary extension, the third person singular pronouns "him" and "his" are also both male and indefinite sex referents. Use of masculine pronouns to refer both specifically to a male referent and generically to either a male or a female referent makes those pronouns "pseudo generic. "

Despite the emergence of various techniques for avoiding application of the masculine rule, it continues to survive as a rule of statutory construction. "Generally the masculine, but not the feminine, is considered to include all genders. A federal statute provides that in determining the meaning of any Act on Contract, unless the context indicates otherwise, words importing the masculine gender include the feminine as well." Despite mounting criticism of the masculine rule, it continues to be applied in various primary legal authorities including statutes, judicial opinions, and  Jury mstruct1ons.

A substantial commentary has demonstrated that the masculine rule is indefensible.  It is unabashedly sexist; it is discriminatory in its gender bias, and is therefore unfair. Use of masculine pronouns and possessive adjectives to refer in the alternative to masculine or feminine antecedents is also imprecise and thus misleading.

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