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Sometimes, sexist language is blatant and universally shunned. Other times, it is more subtle and even socially acceptable. For instance, as summarized in this article, substantial social science research has considered the use of male-gendered generics (the use of such words as he, man, chairman, or mankind to represent both women and men) rather than gender-neutral alternatives (such as she or he, human, chairperson, or humankind). This research concludes that male-gendered generics are exclusionary of women and tend to reinforce gender stereotypes. Yet, these words may not be recognized as discriminatory because their use is perceived as normative and therefore not unusual. In addition, those who use these words may not be intentionally harmful. Complaining about their use may even be criticized as a trivial activity or an overly sensitive reaction.
Given this social science research, there is a surprising absence of awareness on the use and effect of these words among lawyers, law faculty, law student, and judges. Based on our original empirical analysis of hundreds of legal documents (judicial opinions, legal briefs, and law review articles), we find that the legal community continues to use male-gendered words even though gender-neutral alternatives exist. Thus, while some judges, lawyers, and legal scholars may not intend to be sexist, they are being subtly sexist. The research reveals a strong general pattern of the dominant use of the male-gendered option in a number of word pairs (four out of the nine word pairs) and substantial use in three other word pairs. In contrast, there is the dominant use of the gender-neutral word option in two word pairs.
Finally, the article offers some proactive suggestions. While the legal community is reluctant to change, it did shift from using the male-gendered option of reasonable man to the gender-neutral reasonable person. We suggest that this change occurred because of the legal community’s heightened awareness of the sexist nature of the use of reasonable man, and that a heightened awareness of the subtle sexism of all male-gendered generics could prompt further changes. The article ends with a useful guide on gender neutral language that can be duplicated for distribution in the legal community and elsewhere.