Professor Leslie Rose, Director of Advanced Legal Writing Programs at Golden Gate University School of Law (yeah, I haven’t heard of it either) thinks her students are complete fracking morons.
Professor Rose is publishing an article titled The Supreme Court and Gender Neutral Language: Setting the Standard or Lagging Behind?, which will come out some time in the near future in the Duke Journal of Gender Law and Policy.
The article mostly discusses the importance of gender neutral language in curtailing “subtle” bias. Fair enough. I don’t think the masculine generic is particularly problematic, and it can be argued that it’s actually biased against men, but gender neutral language is even less problematic. I’m not talking about the use of “he or she” or “s/he,” or switching to a generic feminine, all of which can be distracting and slaughter any sense of style, but rather replacing “Congressman” with “Member of Congress,” and other changes that are benign and don’t smack of radical left wing ideology. Other than habit, there’s generally not a good reason to not make these changes.
And that’s where Professor Rose’s argument should have stopped. There’s some good reason to switch and no good reason not to. End of discussion. You’ve won. But, simple, elegant, well constructed arguments don’t generally meet the 40 page minimum length law journals like to see.
Professor Rose goes on to argue that judges should switch to gender neutral language, not just because they influence the style of law students who read their opinions, but because the masculine generic is confusing and creates ambiguity:
The ambiguity created by the use of gendered generics can be particularly troublesome in judicial opinions. The reader may not always be able to determine if a particular passage refers generally to men and women, generally to all men, or specifically to a party in the case. A case in point is Kennedy v. Louisiana, in which the Court held that a Louisiana statute authorizing the death penalty for the rape of a child younger than twelve violated the Eighth Amendment. In his majority opinion, Justice Kennedy alternated gendered pronouns, using a female generic for a rape victim and a male generic for a perpetrator:
[C]hild rape cases present heightened concerns because the central narrative and account of the crime often comes from the child herself. She and the accused are, in most instances, the only ones present when the crime was committed.
In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.
Both statements are phrased in a way that implies they are meant to apply generally, rather than just specifically to this case. However, the language used gives the misleading impression that only female children are raped and only men can be perpetrators, or that the Louisiana statute at issue was drafted to limit its applicability in this way.
While most people acknowledge that the vast majority of rapists are men and the vast majority of victims are women, no rational person really thinks that only men can be rapists or only women can be victims. Well…under some laws only men can be convicted of rape, because of how the crime is defined… But, definitely no person of at least a 151 LSAT (25th percentile at Golden Gate) thinks that only women can be rape victims. And if they did, it’s not because of imprecise language in a court opinion they read while in law school. It’s because they lived sheltered lives, never watched Shawshank Redemption, haven’t been in a fraternity, and are probably so brain damaged that they think going to a tier 4 law school is a brilliant career move.
Rose might as well be arguing that court opinions should not refer to the parties by name, because her students are so fracking retarded that they’ll think when the Supreme Court writes about a dispute between Mr. Bush and Mr. Gore that the opinion must only apply to those two people, and other cases can be distinguished because the parties have different names. …Wait…sorry, okay. Bush v. Gore actually only does apply to that one specific dispute and does not create precedent for similar disputes between other parties… But you get my point.
Maybe in cases involving sex crimes, discrimination, or reproductive rights it makes sense to be extra careful in avoiding imprecise gendered language, because there really could be an ambiguity. But, for the rest of the legal universe, if your students are confused and think that masculine pronouns mean a holding applies only to men, perhaps your writing program should be demoted from “Advanced” to “Remedial.”
So, here’s how the masculine generic might be construed as biased against men.
…It’s the freaking GENERIC. The feminist camp says being generic means being “normal,” which may be true, but it does not imply that the other is lesser. Generic can also mean abnormal, such as generic soda. You even refer to generic soda by which brand it imitates. Generic Pepsi, generic 7-Up. You do this because the name brand is the norm, not the generic. So, there needs to be an argument that generic masculine implies masculine normativity.
But, even if we accept that our language implies masculine is normal, it’s perfectly reasonable to conclude that our language reflects an admiration of women. Women are special and meant to be cherished; men are the fodder of war and industry. The masculine generic says “If it’s something we don’t care about, get a man to do it.”
When most of us get sick, we take generic drugs, and they’re definitely the norm. If a generic is available, it’s almost certainly what will be dolled out by your pharmacy unless you specifically request the name brand version (which your insurance isn’t going to pay for). But the use of normative, generic drugs does not imply an inferiority of name brand drugs.
Of course, this doesn’t give an argument for getting rid of gendered language, since all I’ve done is argue the bias runs in a different direction. But, the way main stream feminism works, if this argument was accepted, academia would quickly stop caring about creating gender neutral language.
We can’t just say that the existence of a norm means that the “other” is necessarily considered lesser. Sometimes there is a norm and an inferior other (like soda), but other times there is a norm and a superior other (pass and honors pass grading), and sometimes there is a norm, an inferior other, and a superior other (white people, minorities, and robots).