The Subverting of the Goeduck: Sex and Gender, Which and That, and Other Adventures in the Language of the Law

• Publication year: 1991
• Citation: Vol. 14 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 14, No. 3SPRING 1991

ESSAY

The Subverting of the Goeduck: Sex and Gender, Which and That, and Other Adventures in the Language of the Law

Robert C. Cumbow(fn*)

I remember when my parents bought me my first encyclopedia-the World Book, 1955 edition. As 10-year-old boys will do, I set about exploring the volumes for racy material. One of the first entries I turned to was "Lady Godiva." Across from the distinctly disappointing entry on Godiva was a photograph of one of the oddest creatures I had ever set eyes on: the Panope generosa, or goeduck clam. That's spelled g-o-e-d-u-c-k.(fn1)

You won't find that spelling anywhere today-not even in Washington state, where the goeduck is indigenous, is an important food and trade commodity, and is a college mascot.(fn2) Nor will you find the original spelling in any dictionary,(fn3) nor in the Encyclopedia Britannica,(fn4) nor in the World Book.(fn5) The spelling "goeduck" was adopted by the first English-speaking settlers of the Northwest in an effort to render phonetically the native name for the clam, which in the Coast Salish tongue sounded something like goiduck or gweeduck.(fn6) That phonetic spelling has now been eradicated.

When did g-o-e-d-u-c-k become g-e-o-d-u-c-k? The inverted spelling had probably started to creep into usage even before 1956. Certainly sometime between 1956, when "goeduck" was accepted as the correct spelling, and 1976, by which time only an occasional document could be found containing that spelling, it happened. Where did it happen? No one is sure, but in all likelihood the motivating force behind the change was the Washington State Code Reviser's Office, and the conspirators were the Washington Department of Fisheries and the Office of the State Printer.

How and why did it happen? Again, no one knows for sure. And even though it was not so terribly long ago, barely a person can be found in Washington State government who remembers seeing the work spelled "goeduck." My best guess as to what happened is this: Somewhere along the line, some well-meaning sub-sub-reviser of the Washington Administrative Code-repository of, among other things, shellfish regulations(fn7)-decided that the word did not look quite right. "Goe-," after all, is an uncommon English letter combination. "Geo-," by contrast, thanks to the Greeks, is comfortably familiar. And while "earth-duck" makes little sense as a name for a species of clam, the strange-looking formation "goeduck" made no sense at all to this sub-sub, who took it upon himself to "correct" the spelling. Today, throughout Washington and the world, the common name for Panope generosa is spelled "geoduck."

What harm does it do? Little, except to move the word's spelling a step further away from its pronunciation. Someone encountering the word "goeduck" for the first time could make a fair stab at pronouncing it correctly. Someone encountering the word "geoduck" for the first time is doomed to failure. Newcomers to Washington must have the word pronounced for them and then wonder why it isn't spelled the way it sounds. They (and most natives as well) have no way of knowing that it used to be.

Although little harm results from the inability to discern the pronunciation of a word by a phonetic reading, this little episode in anti-etymology illustrates the control that the law exercises over language. Codebooks can effectively mandate a change in language, even when the changed form is less logical than the original, even when the changed form is inconsistent with the original, even when the changed form is an error. It makes one wonder: How many other errors have been codified into our language, and what effect have these errors had on our thoughts and on our ability to articulate those thoughts?

The "adventures in the language of the law" that follow examine some contemporary usage problems that have special implications for the law and suggest ways these problems might be avoided or resolved.

I. Why We Fight: "Gender" and "Sex"

Why shouldn't we quarrel about a word? What is the good of words if they aren't important enough to quarrel over? Why do we choose one word more than another if there isn't any difference between them?

-G. K. Chesterton

Why not bend to the prevailing winds? Why fight for a spelling, a meaning, or a distinction that many view as outdated? The answer is that if the threatened usage is worth preserving then it's worth fighting for, no matter how outdated or schoolmarmish it may make its proponent appear. An especially timely case in point is the vanishing distinction between "sex" and "gender."

The framers of the nineteenth amendment to the United States Constitution wrote:

The rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.(fn8)

Notice that the framers wrote "sex," not "gender." And right they were. Gender is a property of words, not of people. The only place that "gender discrimination" can occur is in a grammar book, arid when it does, it's pretty boring. Words have gender; people have sex.

Webster's Second New International Dictionary Unabridged, still one of the most respected authorities on American English, records that the word "sex" pertains to physiological distinctions, "gender" to grammatical ones.(fn9) Fowler's Modern English Usage agrees:

gender, n., is a grammatical term only. To talk of persons or creatures of the masculine or feminine g., meaning of the male or female sex, is either a jocularity (permissible or not according to context) or a blunder.(fn10)

The great New York Times editor and usage watchdog, Theodore M. Bernstein, cautioned that

gender is a grammatical term, denoting (in English) whether words pertaining to a noun or pronoun are classed as masculine, feminine or neuter. It is not a substitute for "sex" (but then, what is?). Indeed, in some foreign languages "gender" often disregards sex. In German, for example, Weib, the word for woman, is neuter; in French plume, the word for pen, a sexless article, is feminine. To use "gender" as if it were synonymous with "sex" is an error, and a particularly unpardonable one in scientific writing.(fn11)

Even the more liberal Harper Dictionary of Contemporary Usage concurs:

The use of gender to mean "sex" in senses other than grammatical is considered "colloquial" by some dictionaries but is frowned on by careful users of the language. To say "students of the feminine gender" is pretentious. "Women students" is much better.(fn12)

Why then, with so many authoritative voices raised in support of preserving the distinction between "gender" and "sex,"(fn13) do so many constitutional scholars (who ought to know better) and government officials (who probably can't be expected to) speak of "gender discrimination"? It could be that they are talking about how to distinguish a masculine pronoun from a feminine one. But unless they are discussing the specific language of a law or bill, they are probably not talking about pronouns. Usually they are talking about men and women, and when they say "gender" what they mean is "sex." This ascription of a purely grammatical property to human beings, suggests that people-at least some people-can no longer distinguish between a thing and its name.

There are at least two possible reasons for the ubiquity of the "sex"-"gender" error. The first is that legislators and legal writers may think that the word "sex" is nasty. It is, after all, distracting. It makes people think lurid thoughts, and lets them forget that discrimination is serious business.

But if that's the problem, the scholars only compound it by substituting the word "gender," which-apart from being the wrong word for what they mean-is a mellifluous, gentle-sounding word, ill-suited to the tough, serious-minded purpose of constitutional scholars and the only slightly less serious-minded purpose of government officials. "Gender" is not a firm, no-nonsense word like "sex." It has an evasive, almost euphemistic effect, like calling a war an "incursion" or a spade an "excavation implement" instead of a dirty shovel.

A second explanation for constitutional scholars' eagerness to use the word "gender" in the civil rights context may be that they think the word "sex" is ambiguous. They may be afraid that if they said "discrimination on account of sex," their readers would think they meant sexual activity, orientation, or preference.(fn14) But the literate reader would not think that, because the literate reader knows that the word for that concept is not "sex" but "sexuality."

The University of Puget Sound School of Law(fn15) is currently offering a course entitled "Gender and Justice." I am sure the course has nothing to do with choosing appropriate nouns and pronouns when writing judicial opinions. It should be called "Sex and Justice." I can appreciate the likely complaint: "If we called it that, people might think that the course was about justice and sexual conduct, rather than sex discrimination." Maybe, then, the course should be given a different name. Just because the word "sex" is ambiguous, meaning both a biological trait of organisms and the conduct associated with the reproduction of organisms, does not legitimize the misuse of...