Leslie Rose (Golden Gate) has posted to SSRN her article, The Supreme Court and Gender-Neutral Language: Setting the Standard or Lagging Behind (forthcoming Duke J. of Gender Law & Policy). Here is the abstract:
Most modern legal writing texts and style manuals recommend that writers use gender-neutral language. Gender-neutral language is achieved by avoiding the use of gendered generics (the use of masculine or feminine nouns and pronouns to refer to both men and women). For example, gender neutrality could be achieved by referring to “Members of Congress,” rather than “Congressmen,” and by writing that “an attorney should file the motion before the deadline,” rather than “an attorney should file his motion before the deadline.” Even the venerable Chicago Manual of Style advises that the use of a generic masculine pronoun to refer to both men and women can negatively affect the writer’s credibility with some readers.
Most of the advice on gender-neutral writing is directed at lawyers and law students, emphasizing that this technique is part of good advocacy and effective communication with the reader â€“ usually a judge. It can be hard, however, to convince both new and experienced legal writers that the heightened consciousness and extra editing required to achieve gender neutrality is worth the effort when a similar effort is not reflected in their models â€“ the appellate court opinions they read. Thus, the advice should apply equally to judges.
This article argues that the members of the United States Supreme Court should avoid the use of gendered generics because such language can communicate subtle sexism, distract the reader, and create ambiguity. As the most influential members of the legal profession, the justices should be setting the standard, creating a model for law students and lawyers. With one exception, they are not.
This article examines the use of gender-neutral language by the current members of the Supreme Court. I reviewed more than 100 cases from the 2006-2007, 2007-2008, and 2008-2009 terms looking for patterns in the use of gendered generics and for the use of gender-neutral techniques (e.g., using plural nouns, repeating the noun, using an article instead of a pronoun, and using paired pronouns). This research shows that only one justice consistently uses gender-neutral language, that three justices consistently use generic masculine pronouns, and that the rest fall somewhere in between. Most members of the Court use gendered pronouns to refer to both men and women, at least some of the time.
In addition to presenting the results of this research, this article summarizes the history of the gender-neutral language movement, generally and in the legal arena, and discusses the importance of language in Supreme Court opinions by reviewing relevant social science research and by applying the concepts of reader-centered legal writing to judicial writing.
The full article is available here.