The Nineteenth Amendment reads,
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
It was ratified 100 years ago, on Aug. 18, 1920 – in time for more than eight million women to vote in the presidential election that year.
There are no pronouns in the Nineteenth Amendment. There are two reasons for this:
- The amendment, originally proposed in 1878, mirrors the language of the 15th Amendment, ratified in 1870, which extended voting rights to African Americans, and which has no pronouns.
- Pronouns are ambiguous, especially gender pronouns, especially in the law.
Banning voting discrimination on account of sex as well as race was discussed but ultimately not included in the Fifteenth Amendment, which declared, “the right to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
After two unsuccessful attempts to pass a woman’s suffrage amendment in 1868 and 1869, Elizabeth Cady Stanton adapted the language of the Fifteenth Amendment for what she hoped would become the Sixteenth, replacing “on account of race” with “on account of sex.” Sen. Aaron A. Sargent (CA) then introduced the amendment as Senate Resolution 12, on Jan. 10, 1878.
Sargent’s bill failed, but what eventually became the Nineteenth Amendment avoided pronouns because, although grammarians had insisted for centuries that masculine pronouns could be gender neutral, the masculine pronouns in the various state voting laws were typically interpreted to exclude women.
Susan B. Anthony knew this all too well. Even though she managed to register to vote, Anthony was arrested for voting illegally in the 1872 presidential election. The court clerk had to change he to she in the pre-printed federal indictment form because no one ever anticipated that someone voting illegally would be a women, or as Anthony was described in the indictment, “being then and there a person of the female sex.” Anthony, identified by the correct pronoun, was convicted and fined $100 – about $2150 today – which she refused to pay.
Federal indictment charging Susan B. Anthony, “being then and there a person of the female sex,” with voting illegally in 1872. The pronoun 'he' on the pre-printed form had to be changed by hand to 'she.'
Courts in the US as well as England cited the grammarians when they ruled that he included she for obligations like paying fines or penalties like going to jail. For example, in 1925, Sabelle Nitti, a Chicago woman sentenced to hang for murdering her husband, appealed her conviction on the grounds that the Illinois capital punishment statute used only masculine pronouns. That gambit didn't work, though Nitti was later freed for lack of evidence. But for rights like voting, grammar be damned, he meant ‘only men.’ In 1873, the London Times railed against a bill in Parliament to extend the vote to women by insisting that he in the voting act had always been gender-specific: “The exclusion of the sex from political life has hitherto been secured by the simple use of the masculine pronoun.” Most MPs agreed, and the bill failed.
Pronoun ambiguity could be specially problematic in the US Constitution. In 1845, the abolitionist Lysander Spooner argued that a woman could not be president because Article II refers to the president as he, and he must refer to a man. But another abolitionist, Wendell Phillips, reminded Spooner that the masculine pronoun in the Fifth Amendment’s “nor shall [any person] be compelled in any criminal case to be a witness against himself” protected a woman’s right to remain silent as well as a man’s. A word is held to mean the same thing wherever it appears in the constitution, so if a masculine pronoun is generic in the Fifth Amendment, then masculine pronouns in Article II must be generic as well. A woman can indeed be president.
Spooner’s objection to he-means-she was answered definitively in 1916, when Jeannette Rankin became the first woman elected to the US House of Representatives. Strict constructionists argued that even though Rankin got the most votes, she was barred from office by Article I of the Constitution, which referred to congressional representatives as he, not he or she. But the House had no trouble with the pronouns and Rankin had no trouble being seated as Montana’s first congresswoman.
In 1871, Congress tried to resolve the legal ambiguity of he by passing what came to be called the Dictionary Act, which read in part, “in all acts hereafter passed . . . words importing the masculine gender may be applied to females.” A similar law, the Act of Interpretation, had been passed in England in 1850.
The original 1871 ‘he-means-she’ statute is now combined with other legal definitions under the Dictionary Act in the federal code, 1 USC 1.1.
This encouraged suffragists to argue that since he was now legally generic, women had already gained the right to vote. But their argument was rejected by the very legislators who passed that law – all of them men – who pointed to the Dictionary Act’s escape clause. He included she in a statute “unless the context shows that such words were intended to be used in a more limited sense.”
Anti-suffrage men explained to women that actually, gender-specific he was an act of gallantry. Men took upon themselves the burden of voting to spare women the rough and tumble campaigns, the raucous polling places, and the physically taxing effort required to put a paper ballot into a box. In 1878, Sen. Bainbridge Wadleigh (NH), chair of the Senate Committee on Privileges and Elections, refused to act on the proposed Sixteenth Amendment because – as he put it – voting was an irksome, heavy burden that should not be forced on American women against their will. A few of the western states and territories did permit women to vote – Sen. Wadleigh grudgingly acknowledged that they did so “perhaps with good results” – but most American polling places remained boys clubs until 1920.
In 1872, months before she broke the law by voting, Susan B. Anthony skewered the argument that legal pronouns must be gender specific in a speech to the Illinois Woman Suffrage Association:
If . . . in a penal law there are no feminine pronouns, women should be exempt from the penalties imposed. And if men are to represent woman in [voting], let them represent her in all. If a wife commits murder let the husband be hung for it.
But despite Anthony’s snarky hypothetical and the Dictionary Act’s attempt to clarify the law, words importing the masculine gender remain ambiguous even today: is he in a given statute gender-specific? gender-inclusive? nonbinary? Since the 1970s, many states have revised their laws to render them gender neutral. But pronouns in the US Constitution remain unchanged. As a result, when Hillary Clinton ran for president in 2016, at least one misogynist objected, “but the Constitution says he.” And despite Jeannette Rankin’s triumph one hundred years earlier, it’s easy to imagine that, had the 2016 presidential election gone the other way, some litigious sore loser would have made an issue of the presidential pronoun.
So to ensure that everyone understands that the right of citizens to vote shall not be abridged on account of sex, the Nineteenth Amendment contains no pronouns.
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If you'd like to learn more about the history of gender pronouns, pick up a copy of my new book, What's your pronoun? Beyond he and she, available from Liveright/W.W. Norton here, or wherever you buy or borrow books.
