What is "EET"? A proposal to add a series of referent-inclusive third person singular pronouns and possessive adjectives to the English language for use in legal drafting.

• Author: Thatcher, C. Marshall

1. INTRODUCTION

   Like all living languages, the English language is an evolving work in progress. (1) One aspect of the evolutionary process is that new words are coined and added to an existing vocabulary so as to meet emerging linguistic needs. The English language does not include third person singular pronouns, possessive pronouns, and pronominal possessive adjectives that refer in the alternative to antecedents of the male gender, the female gender, or the neuter. The absence of such pronouns has proven to be an unfortunate linguistic deficiency in legal writing, particularly legislation and other rules serving normative functions. Much of the legislative (2) and scholarly (3) attention that has been devoted to this topic has addressed the absence of and the need for "gender-neutral pronouns." This article proposes to add to the English language a series of complementary pronouns and pronominal possessive adjectives that refer in the alternative to antecedents of the male gender, the female gender, or the neuter gender (when the pronoun includes reference to an artificial person, such as a corporation, or to some other inanimate entity, such as a government). A principal objective in adding several of the proposed referent-inclusive (4) personal pronouns, possessive pronouns, and pronominal possessive adjectives to the English language is to eliminate the "masculine rule."

2. A PRINCIPAL OBJECTIVE--ELIMINATE THE MASCULINE RULE

   Adoption of the new pronouns and possessive adjectives proposed below would put an end to the "masculine rule." Under that rule of prescriptive grammar, the third person singular pronoun "'he' is both a male and an indefinite sex referent." (5) By necessary extension, the third person singular pronouns "him" and "his" are also both male and indefinite sex referents. Use of masculine pronouns to refer both specifically to a male referent and genetically to either a male or a female referent makes those pronouns "pseudogeneric." (6) Despite the emergence of various techniques for avoiding application of the masculine rule, (7) it continues to survive as a rule of statutory construction. "Generally the masculine, but not the feminine, is considered to include all genders. A federal statute provides that in determining the meaning of any Act on Contract, unless the context indicates otherwise, words importing the masculine gender include the feminine as well." (8) Despite mounting criticism of the masculine rule, (9) it continues to be applied in various primary legal authorities, (10) including statutes, (11) judicial opinions, (12) and jury instructions. (13)

   A substantial commentary has demonstrated that the masculine rule is indefensible. (14) It is unabashedly sexist; it is discriminatory in its gender bias, and is therefore unfair. (15) Use of masculine pronouns and possessive adjectives to refer in the alternative to masculine or feminine antecedents is also imprecise and thus misleading. (16) The widely acknowledged and glaring deficiencies of the masculine rule have accelerated recourse to various mitigating techniques for avoiding application of that rule.

3. EXISTING TECHNIQUES FOR AVOIDING APPLICATION OF THE MASCULINE RULE

   Legal writers have employed several mitigating techniques to avoid application of the masculine rule, (17) and several of those techniques are serviceable. For example, "repetition of the noun as opposed to use of the pronoun is ... a way to achieve gender-neutrality[,] ... [though] [t]his method is not always ideal ... because it lengthens the text and may result in inelegant drafting that looks and sounds awkward and contrived." (18) Another technique "is to omit the pronoun 'he' altogether from the text." (19) Gender-specific references may on occasion be avoided by using passive rather than active voice. (20) Nouns may be pluralized in order to use plural rather than gender-specific third person singular pronouns. (21) Gender neutrality is often properly ensured by using the word "one" as a generic referent rather than masculine pronouns. (22)

   Other existing techniques for avoiding application of the masculine rule are less satisfactory. They include the use of alternative pronouns, (23) the use of "they" as referring to singular antecedents, (24) the use of "it" as a referent to both human and non-human antecedents, (25) and application of the "two-way rule," under which "either the masculine or feminine words could be used to include the other sex." (26)

   The use of alternative pronouns is the most objectionable technique for avoiding the pseudogeneric he, him, and his. Coining a few simple gender-neutral pronouns would eliminate the need to use two pronouns or possessive adjectives in the alternative--her or she, him or her, his or hers, and his or her--when one pronoun or possessive adjective should suffice as a referent to either a female or male noun or owner. Moreover, coining a few simple antecedent-neutral pronouns would eliminate the need to use three pronouns or possessive adjectives in the alternative--he, she, or it, him, her, or it, and his, her, or its--when one pronoun or possessive adjective should suffice as a referent to either a female, a male, or a non-human noun or owner.

   The masculine rule has also been avoided by a usage under which the plural pronouns "they," "them," and "their" are used to refer in the alternative to a singular female or male noun (27) Although the singular "they" usage is preferable to application of the masculine rule, (28) that usage is nonetheless objectionable. Just as the third person singular pronouns "he," "him," and "his" should refer exclusively to a masculine noun and should not be used to refer to a male or female noun, so the third person plural pronouns "they," "them," and "their(s)" should refer exclusively to a plural noun and should not be used to refer to a singular antecedent noun. "No singular can be they." (29)

   Using the gender-neutral pronoun "it" as "a third person singular, sex-indeterminate referent" (30) is another objectionable technique for avoiding application of the masculine rule. Use of the third person pronoun "it" should be restricted as referring exclusively to a thing previously mentioned and should not be used in the alternative to refer to a human antecedent of unspecified sex. Just as "he," "they," and their satellite pronouns should not do double duty as pseudo-generics, so the neuter pronoun "it" should not be made to do double duty as referring both to inanimate and animate antecedents.

   In addition to avoiding application of the masculine rule and the inaccurate use of the pronouns "they" and "it," several of the newly-minted pronouns proposed below complement the under-inclusive body of existing pronouns by referring in the alternative to non-human as well as to male and female antecedents. Many of the pronouns proposed below refer to an indeterminate antecedent that might be female, male, or some non-human entity such as a business or governmental entity. Adoption of those proposed pronouns...