Understanding “Them” Pronouns Being Sought by Clients and Courts

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 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.

Endnotes

1 Locker, M. (2019, December 10). Merriam Webster’s

Word of the Year 2019: “They”. Retrieved from https:// time.com/5746516/merriam-webster-word-of-theyear-2019/ 2 Hesse, M. (2019, September 20). A grammar nerd gently dismantles those arguments for rejecting the new ‘they’. Retrieved from https://www. washingtonpost.com/lifestyle/style/a-grammar-nerdgently-dismantles-your-arguments-for-rejecting-thenew-they/2019/09/20/95f87260-da56-11e9-a688303693fb4b0b_story.html 3 Locker, M. (2019, December 10). Merriam Webster’s

Word of the Year 2019: “They”. Retrieved from https:// time.com/5746516/merriam-webster-word-of-theyear-2019/ 4 A Pauwels & J Winter, Gender inclusivity or “Grammar rules OK”? Linguistic prescriptivism vs linguistic discrimination in the classroom’ (2006) 20(2) Language and Education, 128,128. 5 W Oliver, Gender and Grammar: The Singular “They” (2018) 18(1) Journal of Dance Education, 1, 1; including people who identify as gender-fluid, transgender, genderqueer, androgynous, and/or intersex. 6 Mahdawi, A. (2019, September 13). He, she, they … should we now clarify our preferred pronouns when we say hello? Retrieved from https://www.theguardian.com/ lifeandstyle/2019/sep/13/pronouns-gender-he-she-theynatalie-wynn-contrapoints 7 P Salembier, Is Bad Grammar Good Policy? Legislative

Use of the Singular ‘they’ (2015) 36(2) Statute Law

Review, 175, 178; Opponents of the singular use of they in legislative drafting highlight that it results in ambiguity with respect to the subject of the provision. 8 HK Brown, ‘Get with the Pronoun’ (2020) 17 Legal

Communications and Rhetoric: JALWD 61, 101. 9 and Gender: Intersex, Trans and Gender-diverse People (ITGD)’ in Equal Justice Bench Book, 2nd Edition (2021)

Retrieved from https://www.supremecourt.wa.gov. au/_files/Equal_Justice_Bench_Book.pdf 10 Judicial Commission of New South Wales, ‘Sex and

Gender Diverse People’ in Equality Before the Law Bench

Book (2020). Retrieved from https://www.judcom.nsw. gov.au/publications/benchbks/equality/index.html 11 Victorian Bar, ‘Eliminating LGBTIQ Discrimination.’

Retrieved from https://www.vicbar.com.au/members/ community/equality-diversity/eliminating-lgbtiqdiscrimination 12 M Gillespie CJ, ‘The Provincial Court of British Columbia:

Notice to the Profession and Public Form of Address for Parties and Lawyers’ (2020, December 16) Retrieved from https://www.provincialcourt.bc.ca/downloads/

Practice%20Directions/NP%2024%20Form%20of%20

Address%20for%20Parties%20and%20Lawyers.pdf 13 C Boudin, ‘Policy Directive: San Francisco District

Attorney’s Office Gender Neutral and Gender Inclusive

Pronoun Use for People Encountering the Criminal

Legal System’ (2021, June 30) Retrieved from https:// sfdistrictattorney.org/wp-content/uploads/2021/06/

Pronoun-policy-Final.pdf 14 The Law Society, ‘Using Pronouns in the Workplace’ (2021) Retrieved from https://www.lawsociety.org.uk/en/ topics/hr-and-people-management/using-pronouns-inthe-workplace 15 Hesse, M. (2019, September 20). A grammar nerd gently dismantles those arguments for rejecting the new ‘they’. Retrieved from https://www. washingtonpost.com/lifestyle/style/a-grammar-nerdgently-dismantles-your-arguments-for-rejecting-thenew-they/2019/09/20/95f87260-da56-11e9-a688303693fb4b0b_story.html

Jane Tudor-Owen (she/they) completed Piddington PLT with Midlas, and was admitted in November 2021. She holds a PhD, and subsequently taught and researched in, criminology. This article was written with the research assistance of Emiko Watanabe, who also completed Piddington PLT in 2021 and was admitted in November 2021. Emiko is a lawyer at Glen McLeod Legal.

Book Review:

The Curate’s Egg

by Tom Percy QC

Review by Thomas Camp

Solicitor, Butcher, Paull & Calder Junior Council Member, Law Society of Western Australia

There wouldn’t be a reader of Brief who is not aware of Tom Percy QC. Indeed, while many high-flyers in our profession would be unknown to the layman, that is not so for Percy. Lawyer, radio personality, commentator; it is now time to add “author” to the list. And with The Curate’s Egg, Percy is fully deserving of recognition as just that. Published by Halstead Press, it is impressively written and has all the tension, twists and drama that would make it fitting for adaption as a tv mini-series. Percy has burst onto the literary scene with an excellent first offering. We follow Declan McKenna at the beginning of the new millennia, a mining consultant in Perth who has recently returned to the big smoke from Albany. McKenna gets involved in a seemingly unspectacular gold float through an accountant friend and a wholly spectacular affair with an alluring finance reporter, which together see his world flipped on its head. As his comfortable existence begins to unravel, disparate threads from his life come together in a desperate fight for his future. It is a book that keeps you on tenterhooks and has you asking whether the good can win, and whether they are actually good after all.

Australians, and particularly Western Australians, are no strangers to sensational stories from the worlds of mining, finance, the courts and law enforcement. This tale crosses over each of them, and there is of course also room for one of Percy’s renowned loves, horse racing. While we are assured that it is a work of fiction, I am told that for people familiar with the milieu of the noughties in which the book is comprised, there are plenty of characters and events which may be more than a little familiar.

Even if you, like me, weren’t a part of it, it is refreshing as a Western Australian to read a book set in our own backyard and in a world we are all too familiar with. It provides an intimacy, as if you are part of the story. The Curate’s Egg is a thoroughly entertaining romp and is refreshingly concise. It is hoped that this is just the beginning of Percy’s literary career.

Audio Discussion

Click here to listen to Tom Percy QC discuss his book (and a little commentary on a late night phone call to a certain tennis player).

The Curates Egg Tom Percy QC

Marty Young & Alex Vlahos

Thursday January 6, 2022