CALL member Dominique Garingan, Library Manager in the Calgary office of Parlee McLaws LLP, recently wrote an article on "The Singular They: Gender Inclusivity in Canadian Legal Writing and Style Guides". It originally appeared on the website Notes Between Us on June 22, 2022.
It is reprinted here with permission.
Language is a product of culture, and it is known that the English language lacks a singular pronoun that signifies the non-specific he or she. Although at times unintentional, this singularity versus plurality of pronouns, coupled with gendered indicators, has helped entrench the binary perceptions of gender found in writing which we are now seeking to change.
The Department of Justice of Canada recently provided a series of guidelines on the use of gender-neutral language in a legislative context. These guidelines include as a recommendation the use of the singular they and its other grammatical forms (them, themselves, and their) to refer to indefinite pronouns and singular nouns1. In addition, dictionaries such as the Oxford English Dictionary (definition2|blog), the Canadian Oxford Dictionary (definition3), the Cambridge Dictionary (definition) and the Merriam-Webster Dictionary (definition|blog) have acknowledged both the acceptability – and, for some, the controversy – of the singular they.
While there seems to be a growing acceptance towards gender inclusive and non-binary pronouns, this post seeks to explore an increasingly acknowledged yet still seemingly paradoxical entity in legal writing: the singular they. This post briefly investigates the use and acceptance or lack thereof of they as a singular pronoun through a review of a limited sample of Canadian legal research, writing, and style guides accessible to the writer. Although current writing practices on gender inclusivity may have since changed since the publication of these titles, this post hopes to assist writers, researchers, librarians, and information professionals by providing a non-exhaustive point-in-time review of Canadian legal writing references and help facilitate a turning point in the journey towards greater inclusivity in legal writing.
The Literature Reviewed (in Reverse Order of Publication)
Edward Berry, Writing Reasons: A Handbook for Judges, 5th ed (Toronto: LexisNexis Canada, 2020).
In the sample of guides reviewed, Writing Reasons seemed to provide the most inclusive perspective in its instruction. It was somewhat refreshing to see a writing handbook for judges as being the most progressive in its recommendations, albeit also the most recently published. The guide contains a section entitled Prejudicial Language and provides a checklist for more inclusive strategies. (p 114-115) “Invite the parties to define their own identity” is first on the list. As an example, Berry notes that some people may prefer the gender neutral Mx. to Mr. or Ms. “Be wary of personal pronouns” is also listed. Here, Berry states that those who don’t identify as male or female may prefer they. Berry notes the acceptance of they as a singular pronoun. However, the alternative of reconstructing the subject as plural, facilitating a more familiar use of they, is also provided. (p 115)
Although subtle, a highlight of this guide is found in one of its appendices. Appendix 2: Additional Resources contains a section called Biased Language. Instead of listing resources to consult, this section contains a brief note reminding writers that “[u]sage changes constantly” and places onus on writers to consult style guides as well as organizations devoted to specific groups or social issues for guidance on language. (p 151)
Neil Guthrie, Guthrie’s Guide to Better Legal Writing, 2nd ed (Toronto: Irwin Law, 2021).
In his book, Guthrie encourages readers to strive for gender-neutrality, or at least balance. (p 44) Guthrie notes that, if the singular they is used, “it should be based on a desire to be inclusive of the transgendered, the gender-fluid, and the gender-questioning”. (p 46) Guthrie does note a dislike for the singular they when used in a lazy fashion and states that his or her is still preferred, at least grammatically. (p 46) However, one conundrum is that the intent behind the use of the singular they may be difficult to attribute to writers unknown to their readers.
In addition to acknowledging the singular they, Guthrie’s Guide to Legal Writing recognizes the possible growing use of gender-neutral neologisms such as ze, ey, or xe. (p 46) It also acknowledges active changes to the spelling of feminine nouns as a way to “decouple” them from masculine nouns that define them (for example, the use of womxn). (p 49-50, and in SlawTips)
Queen’s Law Journal, Canadian Guide to Legal Style, 2nd ed (Toronto: Thomson Reuters Canada, 2019).
Where a generic singular pronoun is required, the latest edition of the Queen’s Law Journal Canadian Guide to Legal Style recommends against the use of they as a generic singular pronoun, noting it as plural in construction. The guide discourages the use of combinations such as s/he or he/she and, as an alternative, recommends alternating between masculine and feminine pronouns where a generic singular pronoun is required. (p 37)
The Canadian Guide to Legal Style provides some writing alternatives to generic singular pronouns. These include pluralizing the noun or subject to allow the use of they, repeating the noun or subject, and reconstructing the sentence such that the generic singular pronoun can be replaced with words like who or one. (p 37-38) Although the combination he/she is discouraged, the guide notes as acceptable the use of the pronoun pair he or she, although this should be done sparingly. (p 38)
Nancy McCormack, John Papadopoulos & Catherine Cotter, The Practical Guide to Canadian Legal Research, 4th ed (Toronto: Carswell, 2015).
The Practical Guide to Canadian Legal Research advocates for the use of gender-neutral language and acknowledges the inherent gender bias in the English language, such as how, historically, the masculine gender was assumed to be the norm in legal writing. (p 456) While it does not provide explicit discussion on the use of the singular they, it does state that the use of plurals and alternating between masculine and feminine pronouns are both acceptable. (p 456-457)
In stating that the use of plurals was acceptable, it was somewhat unclear to this writer whether The Practical Guide to Canadian Legal Research was alluding to the use of the singular they as an alternative to the pronoun pair he or she at the time or the reconstruction of nouns and subjects as plural to facilitate the use of they as a plural pronoun.
Christine Mowat, A Plain-Language Handbook for Legal Writers, 2nd ed (Toronto: Carswell, 2015).
A Plain-Language Handbook for Legal Writers poses the question “Can they be singular?”. (p 53) This guide takes a historical approach and highlights some of the gender-neutral language policy adopted by the Ontario government in the late 1980s for all official publications, including bills and regulations.
Research by the Ontario government referenced in this guide shows they, their, and them as having a long history of use a singulars. Additionally, the use of themself was deemed to be a logical extension of the use of other third person “plural” pronouns as singular and an acceptable replacement for himself, herself, or itself.4 (p 53) The guide provides guidelines for using gender-neutral language and suggests that the singular they will gain wider acceptance. It also notes that speakers of American English may resist the development more than speakers of British English, where the indeterminate they is more commonly seen. (p 54)
British Columbia Law Institute, Gender-Free Legal Writing: Managing the Personal Pronouns (July 1998), online: BCLI.
While written over two decades ago, the BCLI report, Gender-Free Legal Writing, was cited by at least two titles reviewed for this blog post. Although the BCLI report does not acknowledge they as a singular pronoun, it does recommend adopting a “gender-free” style of writing, or one that avoids pronouns entirely. (p 2) Part II of the BCLI report provides both structural and generic solutions that avoid the use of gendered singular pronouns. These include moving away from third person singular references, identifying the subject a second time, and eliminating repeated references to the performer of the action or the object of the sentence. (p 4-12)
While the BCLI report does accept use of the he or she (his or her) pronoun formulation, it does acknowledge that this is “the least satisfactory solution” as it is “not truly gender-free”. (p 12)
The following titles were also reviewed for this blog post. No explicit discussions on the singular they were found. However, these titles focus more on legal research, writing, and advocacy as opposed to grammar and style.
- Philip W. Whitehead & Anne Matthewman, Legal Writing and Research Manual, 8th ed (Toronto: LexisNexis Canada, 2019).
- Moira McCarney et al, The Comprehensive Guide to Legal Research, Writing & Analysis, 3rd ed (Toronto: Emond Montgomery, 2019).
- Maureen F. Fitzgerald, Legal Problem Solving: Reasoning, Research and Writing, 8th ed (Toronto: LexisNexis Canada, 2019).
- Melanie Bueckert et al, eds, The Canadian Legal Research and Writing Guide (2018), online: 2018 CanLIIDocs 161 <https://canlii.ca/t/2bm3>.
- Ted Tjaden, Legal Research and Writing, 4th ed (Toronto: Irwin Law, 2016).
- James C. Morton, Written Advocacy, 2nd ed (Markham: LexisNexis Canada, 2013).
- James C. Raymond, Writing for the Court (Toronto: Carswell, 2010).
In undertaking this review, I often found myself missing the forest for the trees. Legal writing guides and grammar possess a plethora of rules. While writers, editors, researchers, librarians, and information professionals often turn to these rules for safety, guidance, and affirmation regarding the correctness of their writing, it must be remembered that these rules and structures may be the same ones critiqued for failing to possess the requisite inclusivity for those whose genders are non-binary, undefined, not yet defined, absent, cannot be defined, or refusing to be defined in the first place.
There is an internal conflict ascribable to seeking universal grammatical correctness while ensuring that the language we use is inclusive of all. Are we likely to continue second-guessing ourselves and scouring well-established legal writing and style guides for permission to use more inclusive language? Quite possibly. The legal profession has been critiqued for its traditional nature and writing style. This does not always align with the view that gender may be singular, plural, transitional, evolving, non-existent, or undiscovered within an individual. Although information professionals will continue to hold onto and reference them dearly, it may be time to expect some of our Canadian legal writing and style guides to provide greater clarification and more humanist perspectives on non-binary, gender-inclusive, and gender-diverse language.
1. For an alternative perspective on the use of the singular they in legislative drafting, see Paul Salembier, “Is Bad Grammar Good Policy? Legislative Use of the Singular ‘they’” (2015) 36:2 Statute L Rev 175.
2. A subscription to the Oxford English Dictionary is required to access this definition.
3. A subscription to the Canadian Oxford Dictionary is required to access this definition.
4. For more information on this research, please see Donald L Revell, Cornelia Schuh & Michel Moisan, “Themself and Nonsexist Style in Canadian Legislative Drafting” (1994) 10:1 English Today 10.