They enter with minds full of mush, so what’s a dean to do but speak of them with a mouth full of mush? Yale prawf and deputy dean Ian Ayres has made his choice, and it’s “they.”
With the start of a new school year this fall, I am adopting a new practice. It is already common for my university colleagues and me to ask our students for their preferred pronouns at the beginning of the semester. In these efforts to thoughtfully ascertain how people choose to be described, not enough attention is paid to circumstances when it is most appropriate not to specify gender at all. I would never intentionally misidentify someone else’s gender — but I unfortunately risk doing so until I learn that person’s pronouns. That’s why, as I begin a new school year, I am trying to initially refer to everyone as “they.”
Remembering individuals’ names is hard enough. No, names aren’t perfect individualized identifiers. There are plenty of Johns and Debbies around, and some are Smiths and jones for real, not just aliases. But on the whole, names are the way we identify individuals, dealing with the duplicates ad hoc. Maybe someday, we’ll add numbers to the back of names to make them even more individual, just like gmail and twitter, because everybody loves being called Bob18432092. But for now, we use first and last names, and they’re hard enough to recall.
But what about when we talk about them?
In so doing, I am employing a “default rule” — a concept whose importance I have studied during my career as a law professor. A default rule fills in the gaps in a legal relationship, setting a condition that holds generally until a specific value is agreed on. In contract law, for example, if an agreement leaves out the price, courts will fill the gap with a reasonable price. With organ transplants, some countries presume by default that people want to donate their organs; others, including the United States, presume that they don’t.
Society has created default rules as a matter of course and necessity. One of those is that when we knowingly speak of individuals, we addressed them in the singular because if we use the plural, it’s confusing, adding an additional burden to communication that takes an already squishy means of conveying thoughts and making them even less clear. Sure, middle English used a different protocol, when the “singular they” was acceptable. So were leaches. We’ve progressed since then.
In the case of personal identity, I am drawn to default pronouns that don’t assume others’ gender. Instead of assuming someone’s gender identity based on how they look or dress or act, it is more appropriate to refer to them as “they” until I know better. And whenever possible, it is important to create early opportunities to learn their chosen pronouns, which has become standard practice in academic and other settings.
The reason norms exist is that we can assume them, since we can neither inquire of, nor remember, every individual’s preference, particularly since that preference can change from day to day, if not minute to minute. Norms exist for the majority, and based upon the majority, so that way, when we make an assumption, we are more likely to be right than wrong. And if you’re going to create a default, then it should be a default that serves to work for the most people rather than the fewest. Would Ayres, when he doesn’t know a students’ names, call the all “John”? The only thing he would know for sure is that he will be wrong for the vast majority of his students, although there may be a John or two in the room.
But what’s wrong about this pandering to childish indulgences by the deputy dean of Yale Law School, aside from inculcating in his students the belief that they are entitled to attend an elite law school, one historically likely to produce senators, presidents and Supreme Court justices, while being treated like infants?
The law has a saying, “the tail doesn’t wag the dog.” This is not merely a cool expression, but a critical concept in law. Medicine has its analogue, that “when you hear the sound of hoofbeats, don’t assume it’s a zebra.” When rules are crafted for general application in law, they should be directed to the needs of the many rather than the few. There are always going to be outliers, but if our jurisprudence obsesses with the odd at the expense of the usual, our doctrines not only fail to serve their purpose, but harm more people than they help.
To be sure, using singular “they” could confuse students who are accustomed to being referred to using only “he/him” or “she/her.” But this ambiguity can be easily resolved if professors explain that we have adopted a singular “they” default and create space early on for students to share their pronouns. To my mind, the benefits of avoiding gender assumptions in conversations outweigh the occasional confusion.
It may be cool, at least for this peculiar moment in time, for young people to indulge their woke fantasy of believing “inclusive language” is more valuable than adhering to the norm that arose organically from common human experience. And it may similarly be an article of faith, at least for this peculiar moment in time, that the failure to indulge in such language causes some students pain and trauma, as if the pain of being discussed using the wrong pronouns is like a knife being jammed into your temple.
While Ayres’ assertion that he would never “intentionally misidentify someone else’s gender” is understandable, as being a deliberate offense to an individual, even if that person might be indulging a childish whim for the sake of manipulating others or proving they’re part of the cool kids, that’s understandable, especially in academia where tolerance for mature instruction retired with Professor Kingsfield.
But if students can tolerate the “ambiguity” of being discussed using the odd pronoun, they can similarly tolerate the “ambiguity” of being discussed using the common regime that serves to clarify language, enhance the clarity of communication and be more often right than wrong. The tail doesn’t wag the dog. Even at Yale.
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