Yale Law Dean’s “Default”

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 leeches. 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 students’ names, call them 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.

29 thoughts on “Yale Law Dean’s “Default”

  1. Dan

    So it’s OK to use the wrong pronoun, as long as it’s the “right” wrong pronoun? How does this idiocy even work? Leaving aside the question of how often it would be necessary to refer to a student, in that student’s presence, using a third-person pronoun, this principle isn’t even consistent with itself, much less with reality.

    1. Turk

      Oddly enough, since some may want to avoid the whole pronoun issue to begin with, they may simply use names more often.

      Thereby making names easier to remember.

        1. delurking

          Some decades ago, it was common in the workplace to refer to men by the title Mr. and women by the title Mrs. or Miss, depending on whether or not they were married. It wasn’t an issue, until it was. Why should a woman’s marital status be announced every time she is mentioned (unless she has a Ph.D. or M.D.)? In hindsight, that was pretty silly, and we slowly switched to Ms. and the issue went away. Now that we are used to that, another question arises: why is someone’s gender relevant in the workplace? Typically it isn’t, so why identify someone’s gender in his or her title or pronoun? Titles are easier to handle, and some workplaces I interact with have made the switch to Mx. (pronounced Mix). It is remarkably jarring after decades of Mr. and Ms., but given the above I don’t have a good argument against it. Pronouns are still a muddle, because using “they” as singular makes language much more confusing, especially if you conjugate the verb as plural. But, it is hard to argue that it is important that we identify individuals’ genders whenever we talk about them.

          1. SHG Post author

            Inevitably, someone brings up the “Ms.” argument when pronouns are discussed. Usually, it’s a college sophomore in sociology at a fifth rate college. Reddit is calling, Mx. D.

            1. delurking

              My apologies. When I was a sophomore the forms still had (Mrs./Miss). After all, the norm that arose organically from common human experience is a moving target.

            2. Miles

              There were legal and social reasons for an honorific to distinguish between married and unmarried women. Over time, those reasons disappeared, making Mrs./Miss archaic. Then there was a reason to change to a new honorific as a direct analogue to Mr. In other words, there were actual reasons. Because of those reasons, the change was embraced and, over time, accepted, even though some still use the archaic form today. Is there a similar compelling basis to change to Mx. other than it being the moment’s fashion trend?

              Your argument is shallow, dumb and wrong, but most importantly, completely off topic. If you can’t be funny or illuminating, then consider returning to lurking for everyone’s sake.

          2. Erik H

            why is someone’s gender relevant in the workplace?

            Why not?

            Try asking this more generally: Why do people think gender is relevant?

            Because unsurprisingly, this is pretty universal among almost all humans. Gender roles may differ, but gender–especially as it links to “sex”–remains pretty important basically everywhere.

            Then, assuming you come up with some sort of lengthy answer, answer this:

            What about “the workplace”* serves to render all–and I mean literally “all,” not “many” or “most”–of the complex reasons, entirely irrelevant?

            The second question is likely to be the killer here.

            *and while you’re at it, please give a precise definition of “workplace” or, if you prefer, a precise definition of when it IS acceptable for human beings to care about gender.

  2. Denverite

    Revised lyrics — Deputy Assistant East Coast Promo Man
    Well I’m waitin’ at the bus stop in downtown New Haven
    Well I’m waitin’ at the bus stop in downtown New Haven
    But I’d much rather be on a boardwalk on Broadway
    Well I’m sittin’ here thinkin’ just how sharp I am
    Well I’m sittin’ here thinkin’ just how sharp I am
    I’m an under assistant east coast promo man, yeah, yeah

    I sure do earn my pay, sittin’ on the beach every day
    Yeah, I had two flops
    I break my ass every day
    I’m real, real sharp, yes I am
    I got a cravat and a seersucker suit, yes I have
    Here come the bus, uh oh
    Uh, I thought I had a, a dime, where’s my dime?
    I knew, I know I got a dime here somewhere
    Oh, I’m so sharp
    You won’t believe how sharp I really am
    Don’t laugh at me
    I’m no phony
    I’m no phony no, no

    And please,, don’t forget to give him a dime to call his mother.

  3. btf

    When considering the percentage of the population affected by these things, the tail wagging the dog seems to be an overstatement. The flea driving the dog seems more apt. In case anyone missed it, my favorite was the babylon bee headline: “Amazing: This Mind-Reader Can Instantly Guess People’s Pronouns With 99.9% Accuracy”

  4. Them

    I’m a simple kind of lawyer as well. Isn’t supposed to be about clarity? Singular “it” plural “they”?

    1. SHG Post author

      “It” is for things. People are not things.

      Also, you’re not authorized for music vids. I’m letting it go this one time only.

  5. Jardinero1

    Every time this topic arises, my first thought is what kind of entitled little shit, gets to dictate, how they are referred to, in the third person. If they are in another state, am I still supposed to follow their tyrannical diktat?… the next room?… the next table?

    1. L. Phillips

      My first thought is, “Hey shithead!” works in a broad swath of situations and makes no reference to age, race, or sexual orientation if you happen to have one or more.

  6. Sapir

    Earlier today, when talking about the VA, you wrote, “When a human finally answered, they tended to be helpful..” and in this very post, “…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…” In both cases, the antecedent of “they” is singular. As you have demonstrated, the singular “they” is generally accepted with indefinite antecedents, what you’re criticizing is the shift to using it with definite antecedents.

    “Sure, middle English used a different protocol, when the “singular they” was acceptable. So were leaches. We’ve progressed since then.”

    First, the singular “they” first appeared in Middle English, but its been around ever since. It’s been well documented for the past six centuries. Second, I believe you mean “leeches”, the invertebrate historically used for medicine, “leach” is a verb. Third, languages doesn’t naturally progress to a more logical form. By the reasoning you’ve presented, we should never have abandoned “thee, thou, thy” for the often confusing singular “you”. Do you think we should readopt it? Or perhaps just accept “ya’ll” as the new plural?

    1. SHG Post author

      My grammatical errors and typo shows nothing more than I made a grammatical error and Beth failed to catch it. Happens. I’ll correct them now, as most people here are kind enough to inform me of a typo rather than trying to use it for their infantile sophistry. Assholes try to use it for leverage.

      If this is what you consider real and serious problems in need of a cure, then you’ve lived too fabulous a life and have nothing of serious concern to occupy your fertile imagination. Worry about cops killing people, people dying from covid and, not “y’all.”

      1. Sgt. Schultz

        Don’t be mean to Sapir. I think it’s wonderful that college sophomore gender studies majors read SJ, even if they can’t help themselves from spewing nonsense.

          1. Hunting Guy

            No.

            These people need to realize that not everyone shares their world view.

            Sometimes it takes a 2×4 upside of the head for them to realize that and unfortunately that doesn’t work all the time.

      2. Sapir

        My first point was that you use the singular “they” when the antecedent is indefinite. I guess you can call them grammatical errors if you like, in which case you make this particular error a lot. Here are some more examples from the past few days and two from today:

        (9/17) “…most cop killings have nothing to do with a police officer having any specific intent to harm that particular person. They may be motivated by fear for their personal safety…”
        (9/17) “The irony is that many will argue that there can be no greater demonstration of a “depraved mind” than someone who will shoot at the slightest, most remote, most attenuated fear rather than take any chance that a few steps down the line, something bad might happen to them.”
        (9/18) “When someone gets hired to seat diners, they don’t assume their job is to be on the front line of violence from irate customers.”
        (9/21) “In her world, no one needs to think when they can feel instead.”
        (9/21) “There’s nothing to read, to point at, as every woke person feels that they have their own personal belief system…”

        My second point is that we tolerate using the same word for second person plural and singular without issue and doing the same with the third person probably shouldn’t be a big deal. I’m not advocating for “thee, thy, thou”, “ya’ll”, or even using singular “they” with definite antecedents. I’m just trying to correct a few misconceptions. I’m sorry if that was unclear and for the “leeches”, that was irrelevant.

        1. SHG Post author

          When my editor tells me to correct my grammar, I correct. I make a lot of typos too, not because I want to alter the spelling of words, but because I write/type fast and don’t think about it. Sometimes, a cigar is just a cigar.

          1. Sapir

            If your use of the singular “they” is in error, then what do you think should be the pronoun for “someone” or “anyone”? And why don’t you ever use it?

        2. Skink

          Sapir–I know how you feel. Like you, I once had a large coconut stuck in my ass. Imodium doesn’t work. I got no relief until I had a complete attitude transferal done.

          I hope this helps.

  7. Pedantic Grammar Police

    This pronoun nonsense is a good thing. It’s important to know who you are talking to, and if someone wants to inform me in the first minute of the conversation that “they” are an idiot with whom I should not waste any time, I will gratefully accept that courtesy.

    1. SHG Post author

      I just wasted two minutes of my life on Sapir above. I ready regret it. Do these assholes not realize that their brilliant argument wears thin after the first few hundred times we’ve heard it?

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