Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, September 5, 2019

He, She, or They: Thinking Rhetorically About Gender and Personal Pronouns

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Today’s Rhaw Bar post encourages you to think rhetorically, not just grammatically, about personal pronoun use.

When I enter church on Sunday mornings, a greeter asks me my name and neatly prints it on a tag. Then they ask, “What personal pronouns do you prefer?” When I answer, they write those on the name tag, too.

The gender identity on my name tag is more than grammatical; it is rhetorical. The words identify (at least in part) the “me” wearing the tag and help shape how others view me as a human being. And addressing a person by the pronoun the person prefers is a sign of respect (or, as Aristotle might call it, a sign of goodwill, a component of ethos).

Modern rhetorical scholar Kenneth Burke might tell us (if we could ask him) that the personal pronouns on the name tag work through “identification”—they persuade through making connections, not by making explicit arguments. In the realm of human relations, Burke would say, identification is a more powerful way to persuade than by overt argument. Identification is the way we overcome division; we persuade each other by identifying our own ways with the ways of another. (For more on Kenneth Burke’s theories and how they have influenced the study of rhetoric, visit the Kenneth Burke Society Journal.) By wearing my name tag, others are persuaded to connect me with a particular gender identity. They are also persuaded to identify me with a particular church community. My tag identifies me to and with others.

When legal writers choose personal pronouns for the humans that appear in their legal writing, those pronouns persuade through identification; the legal writer assigns identities and carves out communities of membership. That’s quite a bit of power that the legal writer holds over the “characters” in legal stories, and that’s why legal writers should be mindful about pronoun use, particularly when it comes to pronouns and gender identity.

In a recent and excellent bar journal article by University of Washington law professor Tom Cobb, “Embracing the Singular ‘They,’” Professor Cobb provides information that can help legal writers be mindful about pronoun use. Professor Cobb’s article focuses on the issue of whether to use “they” as a singular personal pronoun. Professor Cobb makes a compelling argument for using singular “they” in many circumstances, including when the gender of a person is unknown or undetermined. He points out that “they” has been recognized as a singular pronoun historically (in the Oxford English Dictionary, for example) as well as currently (by the Washington Post, for example). He also points out that using singular “they” can avoid sexist writing and gender binaries.

In fact, I’ve followed Professor Cobb’s advice on using the singular “they” in the second paragraph of this post. In that paragraph, I use “they” to refer to my “greeter,” a single person, but one whose gender is undetermined because the greeter is not the same person every Sunday. Although as Professor Cobb points out, using “they” in this circumstance may create “grammatical friction,” “they” also does important rhetorical work.

Singular “They” is Rhetorically (and Ethically) Inclusive.

First, using singular “they” avoids preferring one gender over another or assuming a gender binary. I don’t need to choose “he” over “she” (or vice versa) to make my point in the sentences. Likewise, I don’t need to assume that there are only two genders (“he” or “she”) to get my message across. Instead, singular “they” represents a more gender-inclusive writing style, one that Professor Cobb suggests is becoming more widely preferred. And if this were a legal document in which I used an inclusive writing style, I would be sending a message about my attitude toward my professional role as an officer of the court who is responsible for the fair administration of the judicial system, a system that must treat all participants without bias or discrimination. (See Model Rule of Professional Conduct 8.4, comment 3: Lawyers must avoid discrimination by avoiding “harmful . . . verbal conduct that manifests bias or prejudice towards others.”) On balance, choosing to use singular “they” here is not only rhetorically preferable but ethically so.

Singular “They” Creates Opportunities for Identification.

Second, by using singular “they,” the opening narrative (the story of getting a name tag at church) invites the reader to interact and identify with the text. Singular “they” creates more possibilities for identification between reader and greeter in the opening vignette—“they” gives the reader options for visualizing the greeter. Thus, the greeter can have different gender identities based on how the reader fills in that information. In fact, readers could imagine themselves as the greeter—a form of identification with the story that would make it particularly persuasive.

Arguably, providing specific fact details in legal writing is preferred because details are more memorable and thus more persuasive. But sometimes, giving readers the option to “fill in the details” can be equally persuasive. When readers fill in the details that are important to them, then they may identify more strongly with what is written.

This “filling in” is similar to the way argument works in an enthymeme—an argument in which one or more of the premises is not expressly stated. An enthymeme allows audiences to construct an argument’s premises themselves; the writer does not state them. Think of an argument where a picture of a flag is displayed with the words, “This flag stands for freedom!” A writer could further explain this statement, giving the definition of freedom and then describing the ways the flag connects to the definition. Or, the writer could stay silent on those points, letting the audience fill in the connections between the flag, freedom, and the audience’s own personal ideas about what freedom means. In this way, the audience fills in its own premises that make the argument about the flag more persuasive. 

One might argue that using “they” in the paragraph was a poor choice because it might be distracting; typically, “they” is used with plural nouns, and when it’s not, readers notice. Arguably, the reader will notice the grammatical tension more than the underlying meaning. But, on balance, leaving open as many points of identification as possible increases the chances the reader will connect to my story’s character in ways that make sense to the reader. That is, where there is no reason to be specific about gender in a sentence (or any other characteristic, for that matter), allowing readers to “find themselves” in the text can enhance persuasion.

Expressing gender with personal pronouns is a grammatical, rhetorical, and ethical choice. Being more mindful in your pronoun usage can help you improve all three.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected].

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