Adopt any pronoun you like, but leave laws alone

Victorian Attorney-General Jaclyn Symes “should consider these matters but she should remember history”. Picture: AAP

Last week, a 23-year-old student, Bonnie Logan, attracted some notable supporters in her campaign to have all legal language amended so that it is gender neutral. The Monash student wants the word “he” replaced in all legislation by “they”.

She has said on Twitter: “Having such important texts based on the notion that ‘he’ represents every person is outdated and damaging. Women, or people who don’t identify as men, shouldn’t need to work around this norm anymore.”

Logan has requested a meeting with the Victorian Attorney-General and her campaign has received expressions of support from the Law Institute of Victoria, the Victorian Equal Opportunity and Human Rights Commission and the Commission for Gender Equality in the Public Sector.

It’s hardly surprising that the third-year law student should object to the way legislation always refers to cops and crims alike as “he”. After all, she is studying such texts every day. But we should be careful. One thing we should not do is enshrine bad English in the language of the law and that is what would happen if we were to substitute “they” for “he”.

pic.twitter.com/HE76frx3UC

— Bonnie Logan (@bonniemlogan) June 30, 2021

It’s true that it’s becoming more common for people to use “they”, the plural form of the third person pronoun, as a substitute for “he” or “she”, but that doesn’t mean it is appropriate. It should be a rough rule of thumb that if it ain’t good English it ain’t good law.

Personally, when the fashion changed in these matters – and it’s a good idea to remember that we’re always dealing with fashion rather than just clarion calls for liberty – some of us simply shifted to calling the individual “she” instead of the generic “he”, just as we adjusted to “humankind” rather than “mankind”.

Someone pointed out that way back in 1993, Jan Wade – Jeff Kennett’s attorney-general – made provision for language in the law to be more inclusive without having to change all legislation.

Logan, who wants old legislation updated to reflect a gender-neutral position, wants the language of the law to represent “women or people who don’t identify as men”. She is clearly sensitive to people who identify as non-binary, as the parlance has it.

When Jack Kennedy, in his Camelot days in the White House, was asked what he thought about women’s rights, he said: “I’m for that.” Well, we’ve all been for that for decades, but let’s not bugger up the language of the law for no better reason than the fact that some bright young people see it as an obstacle to the fullest possible pursuit of a multi-gendered conception of society, as if this were the self-evident wisdom of our times.

It is not. OK, it’s fine if some non-binary people want to refer to themselves as “they”. But it would be a bad substitution for the law. Justice is blind, it is the thing we want to prevail even if the heavens fall. Never mind if the law is, as Dickens said, sometimes an ass.

Yes, there are horrors like the Nicola Gobbo story or the fact that Cardinal George Pell had to go all the way to the High Court for justice in a case that should never have been brought. But think of the other side of it. Think of someone like James Crawford, the Adelaide-born lawyer who was professor of international law at Cambridge, who died recently and who pursued case after case before the International Court of Justice. Or Jen Robinson, Geoffrey Robertson’s associate, who goes in to bat tirelessly for Julian Assange.

This is more important than espousing an illiteracy like “they” in order to escape at a jump the prisonhouse of supposedly oppressive gendered language.

It’s natural that Victorian Attorney-General Jaclyn Symes should consider these matters but she should remember history. Thirty years ago at Ormond College – when Greg Hunt was Head Boy, for want of a better word – the young women of the place liked to be addressed formally as “gentlemen”. It would be interesting to hear the opinion of Julian Burnside QC, that champion of refugees, on these matters. Two of his other strong suits are the tradition of the law and the correct use of language.