Understanding “Them” by Dr Jane Tudor-Owen BSW(Hons) LLB PhD
Our language is constantly evolving, more inclusive use of pronouns is being sought by clients – and courts In 2019 Merriam Webster announced ‘they’ as the Word of the Year,1 specifically noting its use as a pronoun for individuals who identify as non-binary.2 Although some have heralded the singular use of they as offending the English language, using other gender neutral singular pronouns like ‘someone’ or ‘everyone’ is nothing new.3 It is also not a new concept to be revising our use of language in response to allegations of gender bias. Historically, there has been a move away from the default use of ‘he’ for this reason.4 However, at times the attempt to remedy this has been less than comprehensive. For example, utilising interpretation acts to provide an overarching caveat with respect to legislation using ‘he’ exclusively, rather than amending individual instruments. However, as welcome as reform is to reduce linguistic bias, to date, this has generally been limited to broadening gender to include male and female pronouns. In contrast, adopting gender neutral pronouns, for example, the singular use of ‘they’, includes people who may not identify as male or female, or whose gender may not be fixed.5 Opponents to the inclusive use of pronouns cite extremes of political correctness in their arguments: “pronoun preferences are a favourite joke among unimaginative reactionaries who use them as proof that “snowflake millennials” just want to feel special”.6 More dangerous arguments come from those who suggest the singular use of they, the most common strategy to eliminate the use of gendered pronouns, leads to imprecise language which, in the context of legal work, can lead to ambiguity with significant implications for parties.7
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In order to encourage clients to seek assistance from lawyers, particularly those clients who are vulnerable, it is essential to provide services that are accessible in every way. Far from being too much of a challenge to amend the way we interact with clients, Brown reminds us that of all professions, lawyers are best placed to adapt: “every day, lawyers and judges write about complex material that is unfamiliar to our audiences; we explain and define odd terms of art, strange vocabulary, and peculiar rules, and then we lead the reader through analyses that use those same concepts and principles. We can do the same with pronouns and honorifics”.8
Strategies to promote inclusion Jurisdictions around the world are formalising approaches to inclusive use of pronouns with clients and in courts. In Australia, there is increasing awareness of the need to recognise gender diversity, rather than grouping this together with sexual diversity. For example, within the Equal Justice Bench Book in Western Australia9 and the Equality Before the Law Bench Book in New South Wales,10 gender is treated separately to sexuality. In their strategy to Eliminate LGBTIQ+ Discrimination, the Victorian Bar have suggested inquiring after a person’s preferred pronoun as a matter of practice in an attempt to be more aware of gender diversity.11 Around the world there are examples of practical strategies that have been adopted to promote (and at times, mandate) inclusive use of pronouns. In Canada, from 16 December 2020, parties to proceedings are required to provide (or have provided on their behalf) their name, title, and pronouns. Clerks of the court are to request this information if it is not offered and judicial officers will make the request in circumstances where there is no clerk present.12 From 30 June 2021 in San Francisco, a policy directive from the District Attorney requires the correct pronouns and preferred names to be identified as soon as possible for defendants, witnesses, victims, as well as non-parties, for all new cases.13 While
not operating retrospectively, the policy encourages the use of inclusive pronouns wherever possible in all cases. Of particular note are the resources produced by the Law Society in the United Kingdom, which make tools and templates for workplaces to use in supporting trans employees widely available. The suggestions they provide for using pronouns inclusively include:14 Use “they/them” until you know someone’s pronouns, e.g. “There is someone here to see you. I will ask them to take a seat”; If you know someone’s pronouns, use it when you introduce someone so that others know what pronouns to adopt, e.g. “This is Jen, they work in Finance. This is Fred, he works in Marketing”; Listen to how people speak about themselves and follow; Check to see if the person has included their pronouns in their e-mail signature; If you are unsure, discreetly ask people what their pronouns are (e.g. “Sorry, I didn’t catch your pronouns”). The approach to adopting the inclusive use of pronouns will vary according to context, whether that be working with clients, colleagues, or in the court. However, as Hesse states, “we’re not really talking about grammar. We’re talking about the willingness for all of use to feel a little uncomfortable on our universal, bumbling quest toward compassion and humanity”.15 The judgement delivered by Quinlan CJ in WM v CEO for Department of Communities [2021] WASC 325 has drawn attention for the humanity expressed in the Chief Justice’s final observations. It could be argued that an equally powerful statement can be found in the Chief Justice’s consistent use of the respondent’s preferred pronoun throughout the judgement. This simple action recognises the respondent for who he is and is particularly poignant given the respondent’s family appeared not to. It more generally signals to the wider community that they do the same.
