By Tenielle Fordyce-Ruff

I’m writing this in January, and as one does in January, I’m reflecting on the past year.  I’m also reflecting on topics I’ve covered as I’m coming back to more regular contributions to The Advocate. Turns out that I haven’t given pronouns any coverage for a decade.  And a lot can change in 10 years.  For instance, a decade ago the Boston Marathon was bombed, Whitey Bulger got life in prison, George Zimmerman was acquitted, and Bradly Manning came out as transgender.[i]  Yet, I had to look all of those up because I no longer mention those in conversation.

On a smaller scale, I predicted that the use of the singular they would become acceptable in legal writing.[ii]  After all, even a decade ago we were using they accurately and consistently in speech and informal writing.  It seems that I managed to accurately predict the future.[iii]  Then, in September 2019, Merriam-Webster expanded the definition of they to be an acceptable singular pronoun in some circumstances.[iv]  This means that them, their, and theirs can sometimes be singular, too.

And while I’m sure some grammar noodges’ heads are exploding at my suggestion, legal writing is also embracing the singular they.  For instance, the Michigan Supreme Court has proposed amending its rules to require the use of names or preferred pronouns, including the singular they, in all writing and oral references.[v]

So, as the singular they is now acceptable, how can we legal writers make sure we use it clearly?  Let’s start with a refresher.

Pronoun Refresher

Personal pronouns replace nouns, and the nouns they replace are called antecedents. Pronouns should agree with the antecedents they replace in gender, person, and number. First person pronouns refer to the speaker or writer (I, me, we, us, my, mine, our, ours, myself, ourselves).

Second person pronouns refer to the person being spoken or written to (you, your, yours, yourself, yourselves).

Third person pronouns refer to someone or something else (he, him, she, her, it, they, them, his, hers, its, their, theirs, himself, herself, itself, themselves.)[vi]

Pronoun Issues?

That pronouns should agree with their antecedent in gender hasn’t been strictly followed by speakers and writers for ages.  As the Maryland State Bar noted on its blog, “If you were to see the silhouette of a backlit person on the street, would you ask, ‘Who is he or she?’ Or, like a normal person, would you ask, ‘Who are they?’”[vii]

This usage isn’t shocking.  English has used they to refer to a singular person of unspecified gender for at least 500 years.[viii]  And they has long been acceptable for indefinite pronouns anyone, no one, and someone.  We can easily write: Go ask someone if they can help.

So, what should we do to help our readers with the problem of referring to a person of unspecified gender?  Well, much of my advice from 10 years ago still works.  Change the antecedent or rewrite the sentence to avoid personal pronouns.

Let’s look briefly at each of these fixes.

Replace the Singular Noun

When it won’t confuse the reader, you can change a singular noun to a plural noun.  For instance, you couldn’t write: The professor must teach its students about pronouns.  But a simple fix works:  The professors must teach their students about pronouns.  There is a little twist to this, however.

Because we now are so used to they as a singular and plural pronoun, it’s best to remove other plural nouns to avoid confusion.  I’ll give you an example from my legal writing professor, mentor, and friend: When deciding difficult cases, Judge Wright exercises their discretion carefully.[ix]

The their in this sentence could refer to either the judge or the cases.  The fix to avoid this confusion is to remove the other plural: When deciding a difficult case, Judge Wright exercises their discretion carefully.

Rewrite the Sentence

Avoiding personal pronouns as a fix takes a little more thought but can help avoid awkward sentences.  If you find that you are writing about someone without knowing their gender, you might be able to convey the meaning without a pronoun at all.

As I pointed out previously, A judge must give instructions to the jury is every bit as clear as A judge must give his or her instructions to the jury. (Note, too, how stilted this his or her sounds!)

Likewise, The accused must waive the right to speak to a lawyer avoids personal pronouns by using articles instead of pronouns (The and a are the articles in this example).  This is a great fix when speaking hypothetically.

Using the Single They Correctly

While each of these works, you don’t need to rewrite every sentence to deal with what is for most of us a non-issue.   Simply use they as a singular pronoun.  But do so consistently and carefully.

First, recognize that you don’t need to use they instead of every other singular pronoun. They can be used when you don’t know the gender of a person or when that person prefers this pronoun.  But if you’re writing about a case, and that case uses he to refer to a party, you can safely use he, too.[x]  Likewise, if you know that someone prefers gender-specific pronouns, use those.  For instance, I prefer she, so you can write: She has written this column for over a decade.

Second, don’t use they and other personal pronouns interchangeably.  Imagine how confused you would be if I wrote this:

Natalie had a sunny disposition.  She greeted me every morning with a cheery hello.  They were always prepared with a kind word.  He also loved to whistle as they walked.

Do you have any idea if I’m writing about one person, or maybe five?  Changing the pronouns for any single person will only create confusion.

Third, think of they like you.  We have been using context to tell if you is singular or plural for decades.  And we have been using context in speech to determine if they refers to one, two, or more people for years.  Our readers can, likewise, glean what they refers to from context, so long as we carefully look at the context of our writing.  Compare these two sentences:

You are my partner.

You are my partners.

Even though the verb are is plural, we know that in the first sentence, the you is singular and in the second the you is plural.  This works equally well with they.

            They are my partner.

            They are my partners.

Conclusion

Careful writers rewrite and edit to ensure the clarity of their ideas.  Giving attention to pronouns and ensuring that the context gives the reader clues about whether they is singular or plural is simply another item on a good editing checklist.

Tenielle Fordyce-Ruff is a member of the Idaho State Bar and an Associate Clinical Professor of Law at Sandra Day O’Connor College of Law, Arizona State University.

[i] Jennie Wood, Major National New Stories of 2013, available at https://www.infoplease.com/current-events/2013/us-news-27 (last visiting February 1, 2023).

[ii] Tenielle Fordyce-Ruff, Problems with Pronouns Part III: Gender-linked Pronouns, 56-JUL Advocate (Idaho) 48 (June/July 2013).

[iii] Suzanne E. Rowe, As Language Evolves Pronouns Leap Forward: They/Them/Theirs, 80 Jan. Or. St. B. Bull. 17 (Jan. 2020); Susie Salmon, Them!, Ariz. Att’y, Oct. 2018, at 10, https://www.azattorneymag-digital.com/azattorneymag/201810/MobilePagedReplica.action?pm=2&folio=10#pg13 [https://perma.cc/7USW-RBET]; Greg Johnson, Welcome to Our Gender-Neutral Future, VT. BAR J., Fall 2016, at 36.

[iv] This isn’t the first time a pronoun has shifted. You used to be only plural and we used thee to refer to a single person.  But we now use you as both a singular and plural pronoun.  Suzanne E. Rowe, As Language Evolves Pronouns Leap Forward: They/Them/Theirs, 80 Jan. Or. St. B. Bull. 17 (Jan. 2020).

[v] https://www.courts.michigan.gov/48efd1/siteassets/rules-instructions-administrative-orders/proposed-and-recently-adopted-orders-on-admin-matters/proposed-orders/2022-03_2023-01-18_formor_propamdmcr1.109.pdf

[vi] Tenielle Fordyce-Ruff, Problems with Pronouns Part III: Gender-Linked Pronouns, 56 Advocate 48 (2013).

[vii] Steve Klepper, The Singular “They” in Legal Writing, Maryland Appellate Blog, https://mdappblog.com/2020/06/30/the-singular-they-in-legal-writing/(last visiting February 1, 2023).

[viii] The New Oxford American Dictionary (3d ed. 2010).

[ix] Suzanne E. Rowe, Using the Singular ‘They’ Clearly: Finessing Gendered Pronouns, 82 March Or. St. B. Bull 17 (Feb./March 2022).

[x] If, however, you know the opinion mis-gendered the party, you can correct that error and use the party’s preferred pronouns.  Just do so consistently.