Andrew, I'm not sure I understand the takeaway, but I do appreciate the point about various occupations and characteristics being gendered one way or the other, not all of them male. But I submit that many occupations which are currently split 50-50 by gender in real life (college students, for example, where females make up slightly more than 50% of the pool) retain a default male connotation. So, the sentence "The college student did his taxes on time" is easier to process than "The college student did her taxes on time." Now, of course, this is nothing more than my intuition. However, it could be tested experimentally, and I suspect that one would be able to show that cognitive processing of the first version is easier than the second. If true, this would be an interesting result, given that America today is roughly equally split between male and female college students.

-- MichaelBerkovits - 20 May 2008

I think Andrew W and Eben have it though... If the goal is effective communication, sticking with formal rules is the way to go. Grammar has clearly not made the transition to 'their' as a singular neuter; the fact that it bothered Eben enough to comment on it (and the fact that it still sounds wrong to me), means that there are others who will be bothered by it.

As Claire and Eben argued, we are lawyers, not theorists. Our job is to communicate, not to press the envelope of grammar. I steer away from 'their', because I feel like it never contributes to your goal... at best, people don't notice it, at worst it looks like you don't know how to write. Alternating she or he, on the other hand, can earn you points with a substantial subset of readers, and at worst sounds discordant instead of wrong.

(I typically use the alternating approach, but I will stick with 'he' when I am writing for someone who seems like a staunch traditionalist.)

-- TheodoreSmith - 20 May 2008

Michael:
A father and his daughter get into a terrible car accident. They are taken to separate rooms of the hospital. The doctor in charge of the girl looks at her and says, "I can't operate. She's my daughter." Still surprised?

If the gender of the pronoun "my" followed the gender of the words "she-daughter"/"he-son" surrounding it, then this example cannot help us know whether people assume a default male gender in general. That means that if we experiment with the terms of this story -- sometimes substituting "daughter" for "son", and at other times replacing "physician" with "secretary," "ballet dancer," "teacher," or "nurse" -- the "daughter" substitution should be more predictive of reader confusion about the ambiguously gendered character's gendered. In which case, the outrage feminists feel when readers "default" the physician to male is really just an artifact of the author's choice to make the ambiguously-gendered "my" refer unambiguously to a physician.

-- AndrewGradman - 20 May 2008

I think for me this is definitely an extension of what for me is an awkward decision between using he or she as a general pronoun (although I've made the mistake on a paper for this class when he was clearly appropriate). However, I wonder if there is going to be a transition within the upcoming years of the acceptable use of the pronouns and what the acceptable use will be. I think Eben makes a very persuasive point about how precise we need to be given our future profession, but how long after a transition occurs will the change be found in legal language too?

-- AndrewWolstan - 20 May 2008

I believe Cixous used the pronoun "illes" (a combination of ils and elles) in her writing to deal with this very problem. Of course, she was a theorist and not a lawyer, and so had considerably more leeway with grammar rules than we do.

-- ClaireOSullivan - 20 May 2008