What’s your pronoun? Contemporary gender issues in legal communication

(featured image “Love Kitty” Copyright 2013 Mark McNestry CC license)

by  Brian N. Larson & Olivia J. Countryman

There has been a great deal of conversation in recent months and years about the appropriate pronouns to use when referring to folks. Merriam-Webster in 2019 added the singular-pronoun function to its definition of `they.’[1] The question of pronoun use arises most frequently in the context of transgender and gender non-binary persons. Chances are, if you are of a certain age, much of this sounds a bit confusing: You are perhaps too old to remember from grammar what a `pronoun’ is, and you may not understand what it means to be `transgender’ either.

Regardless of your age and knowledge, however, if you are a lawyer, judge, or law student, you know that you have certain obligations of courtesy and civility toward folks with whom you interact professionally. Here, we explain the terminology and major issues, review the ethical obligations, and propose some guidelines and tips for communicating ethically in the modern social context. Though our focus is on the use of pronouns, the principles have broader application.

Let’s start with grace

“Most people can relate to the feeling of being different or other at some point in their lives, but some people feel this otherness more than others. For transgender . . . and non-binary people, this is something they face every day.”[2] Transgender and non-binary people may feel otherness, but we are all learning about them, and this area is developing rapidly. So you may not be transgender or non-binary, but you may nevertheless feel like an outsider to conversations about contemporary gender issues.

We propose to have this conversation with a foundation of grace and understanding for the mistakes we may make.  We will likely be bumbling around using new words or talking about ideas with which we are unfamiliar. We can talk together, perhaps using new and unfamiliar language—both correctly and incorrectly—with an assumption that, when in doubt, we presume the speaker has good and respectful intentions.

We are also not telling you anything you must do. We are offering a background of knowledge and ethical frameworks and practical tips for reacting to certain situations so as to show respect to others. You may disagree with the views we express and ignore our advice, unless you are appearing before a judge or working for a firm or company that expects this kind of conduct.

‘Sex,’ ‘gender,’ and ‘sexuality’

For many folks, the terms ‘sex,’ ‘gender,’ and ‘sexuality’ are somewhat jumbled and perhaps difficult to distinguish. In brief, sex is a biological characteristic (or perhaps a set of them). Gender is a social characteristic. And sexuality is about the people to whom one is attracted romantically.

The biological characteristics that make up sex are chromosomal, hormonal, and morphological (the last just means related to the shape our bodies take). For most people, there is a binary: male or female. But some folks exhibit ‘intersex’ characteristics, ambiguous chromosomal, hormonal, or morphological characteristics that make their sex less clear. One study reported that 1.3 of every 1,000 births exhibited morphological ambiguity.[3] Generally, however, newborn infants are assigned one of the two predominant sex categories—‘male’ or ‘female’—at birth. The sex category is biologically salient in an important way, as it affects how people pair in order to reproduce.

Gender is a social characteristic, consisting of typical or typified behaviors or performances that a culture associates with one sex or the other.[4] In short, gender is what folks do that fits a pattern that society associates with ‘what men do’ and ‘what women do.’ Because it is associated with the sex category and potentially signals mating opportunities, gender performances convey both social and biological messages. In fact, there are several animal species where individuals of one sex mimic those of the other, often to avoid the consequences of their sex in terms of territory or aggression or to gain mating opportunities.[5]

Among humans, gender performances vary across cultures and across time. For example, adult heterosexual men in Argentina and many other countries kiss each other on the cheek when greeting, and adult heterosexual men hold hands when walking together in parts of the Arab world.[6] When President George W. Bush engaged in the latter practice with Saudi prince Abdullah in 2005, it raised eyebrows here in the south.[7]

But gender norms also change over time. For example, the modern preference for pink in girls’ clothing and blue in boys’ was the opposite as of around 1900, but it had “reversed” by the 1950s.[8] And consider the Bem Sex-Roles Inventory (BSRI): Created in the early 1970s, it assessed whether college students of that time associated certain characteristics positively with males, females, neither, or both.[9] The BSRI associates certain characteristics with masculinity, like “assertive,” “ambitious,” and “analytical,” which perhaps made sense in 1972, but more recent studies show that the gender associations of these terms are much reduced.[10] This has accompanied a transition on the career roles available to men women. Male nurses and female doctors were probably rare in 1972, but they are much more common today.

Why ‘transgender’ and ‘non-binary’?

When we speak of folks who are ‘gender non-conforming,’ we are often speaking folks who are transgender or non-binary. What do these terms mean? First, some folks experience “gender dysphoria”—“distress arising from a sense of mismatch, or incongruence, that one may have about one’s experienced gender versus one’s assigned gender” or sex .[11] ‘Transgender’ folks are those “whose gender identity differs from the sex they were assigned at birth.”[12] “[M]ost transgender people seek to bring their bodies into alignment with their gender identity,” but this does not necessarily mean they will seek hormonal or surgical treatment.[13] “Non-binary” refers to folks with “genders that don’t fall into one of the[] two categories” of masculine and feminine.[14] “Non-binary” and “transgender” are not synonyms; most folks who are one are not the other.[15]

In light of the growing visibility and awareness of folks with gender dysphoria paired with growing acceptance of gender as a social characteristic, it’s no surprise that in 2014, 60% of people between the ages of sixteen and thirty-four thought gender lines are blurred.[16]

A note about terminology. Based on our experience, it’s common and respectful for transgender folks to refer to themselves as ‘trans’ folks, for short. Use ‘trans’ or ‘transgender’ (not ‘transgendered’) as an adjective, not a noun. So good usages are, for example, ‘Chris is a transgender person’ and ‘Chris is a trans male.’ Less good usage would be ‘Chris is transgendered’ or ‘Chris is a transgender.’[17]

Gender and Sexuality

Sexuality is about what gender and sex one is romantically or sexually attracted to. Being trans or non-binary does not make one gay or lesbian. A male-to-female transgender person (a “trans female”) may be romantically or sexually attracted to men, women, neither, or both.[18]

What are pronouns and how are they used?

A pronoun is a word that stands in for a known or antecedent noun. In ‘Sarah washed her hair,’ ‘Sarah’ is the antecedent noun[19] and ‘her’ is the pronoun. We use pronouns to refer to persons, places, or things that are already part of the discussion, to refer to them in abbreviated form. Consider these examples:

  1. The American Society of Composers, Authors and Publishers published the American Society of Composers, Authors and Publishers’ report on copyright on May 1.
  2. The American Society of Composers, Authors and Publishers published its report on copyright on May 1.

Of these, (1) seems extremely wordy, and (2), which substitutes ‘it’ for the organization’s full name, seems more natural. All the languages you are likely to know have pronouns.

In formal English grammar, all pronouns have person and number, and some have gender:

Singular

Plural

First person

I, me, my, mine

We, us, our, ours

Second person

You, your, yours

(formerly Thou, thee, thy, thine)

You, your, yours

Third person

He, him, his (masculine gender)

She, her, hers (feminine gender)

It, its

They, them, their, theirs

 

When we don’t know the gender of an indeterminate individual human, we have these options:

  1. ‘Each student should bring his book.’ This was the old way, where we assumed the masculine pronoun was the default or generic. That view reflects, as much as anything, that fact that men controlled most written discourse for centuries. The writers and readers were expected to be men. Since at least the 1970s, however, many organizations have argued for moving away from this approach toward gender neutral
  2. ‘Each student should bring his/her book’ or ‘Each student should bring his or her book.’ This is not quite gender neutral, as it assumes the gender binary.
  3. ‘All students should bring their books.’ With a little revision, we can escape the need for a singular pronoun, producing a gender-neutral sentence, but this solution does not work in contexts where it needs to be clear that only one person must or may act.
  4. ‘Each student should bring their book.’ This is the singular they that has been in the news in the last couple years. Traditionalists sometimes oppose this usage on grounds that ‘they,’ ‘them,’ etc. are plural, and in this sentence the antecedent ‘Each student’ is singular.

The issue is a bit different if there is a determinate individual, but we don’t know that individual’s gender. Consider the example: ‘Chris brought their book to class.’ This might sound strange to many folks, who expect the speaker to know what Chris’s gender is. But perhaps the speaker does not know or knows that Chris uses gender-neutral pronouns.

This might not always have sounded strange to everyone in the past, in part because pronoun usage evolves. For example, in early modern English, ‘thou’ was the second-person singular and ‘you’ was the second-person plural pronoun. By around the eighteenth century, that practice was changing, and most folks were moving to using just ‘you’ for both. For a while though, using ‘you’ instead of ‘thou’ as a singular pronoun was considered vulgar.[20]

As for using singular ‘they,’ the practice has a long pedigree, going back more than 500 years.[21] Many folks nevertheless consider it grammatically incorrect, and many lawyers have had it pounded into their heads. But, lo, what hath the classic authors written?

  1. Shakespeare: “There’s not a man I meet but doth salute me / As if I were their well-acquainted friend.”[22]
  2. Austen: “I would have everybody marry if they can do it properly.”[23]
  3. Dickinson: “Almost anyone under the circumstances would have doubted if [the letter] were theirs, or indeed if they were themself.”[24]

Some folks avoid gendered singular pronouns on grounds that they tend to associate certain roles with certain genders, and research suggests even a computer trained on the language used on the web will learn “implicit biases” based on gender biases embedded in our language use; for example, masculine with “doctor” and feminine with “nurse.”[25]

Singular ‘they’ has become quite the topic: Merriam Webster added this use of ‘they’ to the dictionary in 2019.[26] Linguists voted ‘they’ the word of the year in 2019, for the same reasons.[27] Within the law, one of us is conducting an empirical study of lawyers’ briefs and related federal district court opinions and finding a great deal of singular ‘they.’[28]

You might think, however, that applying this knowledge requires work on your part, and you might wonder why you should have to bother. The answer is ethics.

Ethics and law in pronoun use

Both the Texas Lawyer’s Creed and every major western branch of cultural ethics suggests that people owe other people a basic level of respect, if not love. The Texas Lawyer’s Creed requires that lawyers “treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.”[29] Lawyers are expected to be “committed to [the] creed for no other reason than it is right.”

But other systems of ethics call on us to observe the something like the Golden Rule: “Do unto others as you would have them do unto you.” Abrahamic faiths (Judaism, Christianity, Islam) embrace versions of the Golden Rule.[30] The principle of the Golden Rule has broader appeal, however. According to the Parliament of the World’s Religions, “We must treat others as we wish others to treat us.”[31]

Outside of the ethical context, however, the law is not uniform in requiring such respect. Some United States federal agencies have regulations that support the use of preferred pronouns for transgender folks and ‘they’ for non-binary. For example, the Bureau of Prisons allows staff to use the prisoner’s preferred pronoun with inmates.[32] And nine federal circuit courts chose to use a litigant’s stated pronoun over their biological pronoun, beginning as early as 1980. Only two Circuits have explicitly refused to do so—the Fifth and the Eleventh.[33]

A very recent case, however, staked out a much more conservative perspective from the Fifth Circuit. In United States v. Varner, a three-judge panel ruled that a pro se prisoner who sent a two-sentence motion asking the Fifth Circuit to use female pronouns had no legal right to compel the court to use their pronoun choice.[34] The majority opined that accommodating such requests would be very complicated and would express a policy stance. The dissent used feminine pronouns and stated that although no law compels it, courts should treat litigants with respect. It’s difficult to see how refusing this defendant’s request does not also express a policy stance. And as we shall see, respecting folks’ choices about gender is not quite so complicated as the Varner majority thought.

Guidelines for communicating ethically as a lawyer

This section and the next identify guidelines and then specific tips for communicating ethically as a lawyer in the contemporary gender environment. We adapted many of these guidelines from “Understanding Non-Binary People,” though they apply to transgender folks, too.[35]

First, “[y]ou don’t have to understand what it means for someone to be [trans or] non-binary to respect them.”[36] As a rule of thumb think of pronouns as personal to each person; allow your interaction to be personal to that individual, without needing to make broad generalizations about interactions with gender non-conforming persons.

Second, “[t]ry not to make any assumptions about people’s gender” and “[t]alk to [trans and] non-binary people to learn more about who they are.”[37] As with all other people, you will treat them with respect and dispose them to do the same to you if you try to understand them—the “soft skill” of empathy is actually a hard skill. The best way to understand someone is to start by making few assumptions and to talk with them. Avoid the twenty-questions approach, and instead try to ask open-ended questions about their experience in whatever context you are meeting them.

For example, at the outside you might not “[u]nderstand that, for many [trans and] non-binary people, figuring out which bathroom to use can be challenging.”[38] If you learn this from a transgender or non-binary person to whom you are talking, it may turn out you know of a gender-neutral bathroom on the premises. Imagine the relief you can bring to another person by sharing this information.

To those we have gleaned from elsewhere, we add the following guidelines:

  1. Remembering what someone’s pronouns are is no different than remembering what their name is, or whether they prefer to be referred to as “Ms.,” “Miss,” or “Mrs.” For example, if you have a colleague with a professional-sounding name but a nickname they use with friends, chances are you have little difficulty remembering both.
  2. Remembering this additional bit of information does require some effort on your part, so if you make a mistake (1) apologize; (2) forgive yourself; and (3) try to do better the next time. Apologizing is pretty straightforward. But (2) and (3) go together: As long as you are going to try to do better in future, you need to give yourself a break for your past mistake. Dwelling on the error is just likely to make you feel resentful—which doesn’t help you are those around you.

Practical tips for communicating ethically

Here are some tips to assist you in communicating ethically as a lawyer

  1. If you use singular ‘they’ for pronouns, whether for indeterminate or determinate subjects (or ‘antecedents’), you can drop a footnote in a memo or brief explaining it to your reader the first time you do it. You can cite even this blog post.
  2. “If you’re not sure what pronouns someone uses, ask.”[39]
  3. “Use the name a person asks you to use.”[40] This probably goes without saying. Of course, some folks who oppose treating transgender persons respectfully worry that someone will ask them to call them ‘Lord Twinkletoes Sleepsalot,’ and they want to feel justified refusing. We suggest you cross that bridge if—and when—you come to it. If someone asks you to call them ‘Stan’ rather than ‘Loretta,’ however, you should not be too much put out.
  4. Indicate what pronouns you use in your email signature. It will put the minds of those you encounter at ease to know that you are thoughtful about this, no matter how obvious you think your gender is. This is Larson’s current signature:

Brian N. Larson, JD PhD (“he” “him” etc.) | Associate Professor of Law
Texas A&M University School of Law
1515 Commerce Street, Rm 119 | Fort Worth, TX 76102

  1. Refer to spouses and partners, not husbands and wives.[41]
  2. “Don’t ask someone [who is transitioning or has] what their old name was.”[42]
  3. Do not use a title (‘Mr.’ ‘Ms.’ etc.) unless you already know what title they prefer. First name works fine in most cases, and if you are not sure, ask ‘Do you mind if you call you [first name]?’
  4. When, speaking to a group, refer to ‘Y’all’ or ‘folks,’ instead of ‘ladies and gentlemen.’
  5. Offer an open spot for ‘Sex/gender’ on forms, so folks can write what they are. In the workplace, create a mechanism to have employees to state their pronouns. Just as employees select their preferred name on email signatures and business cards, create a place for interviewees and new employees to give their personal pronouns.
  6. Offer an open spot for ‘Title’ on forms, so folks can write what they prefer.

Concluding remarks

We hope that you have learned more about transgender and gender non-binary people and the pronouns they use. The interpersonal skills required to use someone’s preferred name and pronoun are neither complicated nor foreign. Further, the ever-evolving English language is already well-equipped with pronouns for everyone. “[Addressing] others as you would like to be [addressed]” adds civility and courtesy to our professional interactions, and perhaps even more importantly, it adds kindness and respect.

 

[1] Singular ‘They,’ Merriam Webster, https://www.merriam-webster.com/words-at-play/singular-nonbinary-they (last visited Jan. 15, 2020).

[2] What’s in a Pronoun?: Resources and Activities on Third-Person, Gender- Neutral Pronouns, Keshet, https://www.keshetonline.org/resources/whats-in-a-pronoun/ (last visited Jan. 16, 2020).

[3] Robert Preidt, About 1 in 1,000 Babies Born ‘Intersex,’ Study Finds, WebMD (May 3, 2019), https://www.webmd.com/parenting/baby/news/20190503/study-about-1-in-1000-babies-born-intersex .

[4] See Brian N. Larson, Gender/Genre: The Lack of Gendered Register in Texts Requiring Genre Knowledge, 33 Written Communication 360, 364–66 (2016). The behaviors are ‘typified’ in the sense that engaging in them both acknowledges the gender norms and reinforces them.

[5] Juliet Lamb, Are There “Transgender” Proclivities in Animals?, JSTOR Daily (Oct. 6, 2016), https://daily.jstor.org/transgender-proclivities-in-animals/

[6] Hana LaRock, How to Greet People When You’re Traveling in Argentina, USA Today (March 13, 2018), https://traveltips.usatoday.com/greet-people-traveling-argentina-102195.html; Elliott Hester, Adjusting to the Man-Kiss, Denver Post (May 7, 2016 at 3:20 AM), https://www.denverpost.com/2008/09/11/adjusting-to-the-man-kiss/

[7] Lana Berkowitz, Bush, Prince Showed Respect by Holding Hands, Houston Chronicle (Apr. 27, 2005 5:30 AM CDT), https://www.chron.com/life/article/Bush-prince-showed-respect-by-holding-hands-1948636.php.

[8] Paolo Frassanito & Benedetta Pettorini, Pink and Blue: The Color of Gender, 24 Child’s Nervous Sys. 881, 881 (2008).

[9] Carol J. Auster & Susan C. Ohm, Masculinity and Femininity in Contemporary American Society: A Reevaluation Using the Bem Sex-Role Inventory, 43 Sex Roles 499, 499–500 (2000).

[10] See, e.g., id. at 507.

[11] Gender dysphoria, APA Dictionary of Pscychology, https://dictionary.apa.org/gender-dysphoria (last visited Jan. 15, 2020).

[12] Transgender FAQ, GLAAD, https://www.glaad.org/transgender/transfaq (last visited Jan. 15, 2020).

[13] Id.

[14] Understanding Non-Binary People: How to Be Respectful and Supportive, National Center for Transgender Equality (Oct. 5, 2018), https://transequality.org/issues/resources/understanding-non-binary-people-how-to-be-respectful-and-supportive .

[15] Id.

[16] Sharon Jayson, Gender loses its impact with the young, USAToday (Jul. 2, 2014 1:36 PM ET), https://www.usatoday.com/story/news/nation/2014/06/21/gender-millennials-dormitories-sex/10573099/

[17] Transgender FAQ, supra.

[18] Transgender FAQ, supra.

[19] It’s also called a ‘proper noun’ because it names a particular person.

[20] Dennis Baron, A Brief History of Singular “They,” Oxford English Dictionary, https://public.oed.com/blog/a-brief-history-of-singular-they/ (last visited Jan. 15, 2020).

[21] Baron, supra.

[22] William Shakespeare, Comedy of Errors, Act IV, Scene 3 (emphasis added).

[23] Jane Austen, Mansfield Park (emphasis added).

[24] Emily Dickinson, private letter, quoted in Singular ‘They,’ Merriam Webster, https://www.merriam-webster.com/words-at-play/singular-nonbinary-they (last visited Jan. 15, 2020) (emphasis added).

[25] Aylin Caliskan et al., Semantics Derived Automatically from Language Corpora Contain Human-Like Biases, 356 Science 183, 195 (2017).

[26] Singular ‘They,’ supra.

[27] Reed Blaylock, For Linguists, It Was the Decade of the Pronoun, The Conversation (Jan. 8, 2020 7:20AM EST), https://theconversation.com/for-linguists-it-was-the-decade-of-the-pronoun-128606 .

[28] Brian N. Larson, study in preparation.

[29] Texas Lawyer’s Creed—A Mandate for Professionalism, Order (Tex. Nov. 7, 1989; Tex. Crim App. Nov. 7, 1989).

[30] See various Talmudic scholars; Matthew 7:12; Luke 6:31; hadith (or traditions and sayings) of Muhammad.

[31] Parliament of the World’s Religions, Declaration Toward a Global Ethic 3 (Sept. 4, 1993).

[32] BOP Policy No. 5800.15, § 402(d); BOP Policy No. 5200.04, § 11.

[33] U.S. v. Varner, No. 19-40016-CR0 (5th Cir. Jan. 15, 2020).In the broader context—outside of just pronoun use—it’s important to be aware of the law in specific contexts. For example, half of all states have public accommodation laws for gender identity, though Texas does not. State Public Accommodation Laws, National Conference of State Legislatures (Apr. 8, 2019), https://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation-laws.aspx; see also, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (finding that discrimination based on a person not conforming to traditional gender stereotypes is discrimination “because of sex,” qualifying for Title VII protection).

[34] Id.

[35] See Understanding Non-Binary People, supra.

[36] Id.

[37] Id.

[38] Id.

[39] Understanding Non-Binary People, supra.

[40] Understanding Non-Binary People, supra.

[41] ABA Best Practices for Promoting LGBT Diversity, 2011.

[42] Id.

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