Yet again, a federal appellate panel has gone out of its way to refuse to adopt a litigant’s preferred pronouns. How Appealing reported on a recent Eighth Circuit decision by Judge Steven M. Colloton (a W. Bush judge rather than a Trump judge for a change of pace, though notoriously unqualified Trump judge L. Steven Grasz as well as another W. nominee in Judge Bobby Shepherd) that takes the appeal of a stalking conviction to wax philosophic about how hard it use to use the defendant’s preferred pronouns.
As the filings in this case illustrate, clarity suffers and confusion may follow when legal writing refers to a single individual as “they,” especially when the materials advert to other actors who are naturally described as “they” or “them” in the traditional plural.
Yes, it would render the whole opinion unintelligible except for the fucking context. Moreover, if using a specific pronoun creates the occasional awkward sentence — “they” can admittedly hit the ear inelegantly when paired with “to be” — there are many alternative phrasings from “Thomason is” to “the defendant is” to “the appellant is” to “the prisoner is.” Other contexts are no less simple to resolve. The sentence “Thomason argues that his conviction…” is easily rewritten as “Thomason argues that this conviction…” or “the instant conviction…” if the court can’t handle “their conviction,” though the latter phrasing would be entirely obvious from context.
It’s bizarre to think the court would have any trouble because the singular “they” is used in common parlance all the time regardless of a person’s pronouns. Americans use “they” to describe the actions of individuals all the time. And it’s neither improper nor new. The Oxford English Dictionary traces the singular “they” back to 1375. It feels like every time someone gets on a high horse about “new-fangled” improper English it turns out that it’s been acceptable all along and merely fell out of favor due to some unwarranted 18th century pontificating.
The argument in the panel’s favor is that Thomason allegedly adopted these pronouns in the midst of the proceedings, and tried to use the fact that the record reflected he/him at earlier stages as the basis of a prosecutorial misconduct claim. But this argument could be tossed without resorting to demeaning the defendant’s new preferred pronouns. Just say, “defendant’s claim is rejected because, upon being informed of the defendant’s preferred pronouns, the prosecution made every effort to adhere to defendant’s wishes and we find that this was enough.” There’s no need to get any deeper into the issue than this.
There are just so many ways to arrange a coherent sentence. Wordsmithing is as much an art as a science and if Judge Colloton and the Eighth Circuit can’t hack it, maybe someone can set up some remedial writing exercises. Justice Gorsuch is capable of honoring pronouns, so the rest of the judiciary can catch up.
Though that’s giving the panel the benefit of the doubt that this protest is really about grammar. Unfortunately, the opinion leaves the distinct impression that this is less about clarity and more about showing the maximum level of disrespect for someone for not adhering to a specific cookie-cutter vision of the world.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.