Today is the 145th birthday of the generic masculine, or to be more specific, it’s the 145th birthday of the legal generic masculine. On Feb. 25, 1871, Congress passed “the Dictionary Act,” which declared, in part, that in all federal laws,
words importing the masculine gender may be applied to females [Statutes at Large, 41st Congress, session III, ch. 71, p. 431]
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Before you light 145 candles, remember that the generic masculine originated centuries before its legal birthday. And it’s not even English, it comes from Latin, and Latin is dead. Also, the generic masculine in English was supposed to be gender inclusive, but at best it only grudgingly accepted women. More often than not, it ignored them. And all too often it excluded women altogether from the protection of the law, as well as from most everything else, which is why English speakers don’t use the generic masculine any more. So maybe we should celebrate its birthday by finally declaring it dead?
Here’s the history behind the legal generic masculine. The 1871 Dictionary Act was modeled on the earlier Act of Interpretation, passed by Parliament in 1850, which read, in part,
in all acts words importing the masculine gender shall be deemed and taken to include females. [3 Victoria ch. 21, sec. 4]
The goal of both these acts was not to usher in a brave new world of gender equity, but to avoid the cumbersome repetitions of his or her that cluttered up the statutes. Although the British law requires the masculine to include the feminine, and the American version says it may do so, there was no difference in how these laws were understood: courts in both countries generously counted women as men for obligations like paying taxes, but they vigorously excluded them from the generic masculine when it came to privileges like voting. Also, the Dictionary Act was not reciprocal with regard to gender. Although it specified that singular words could include plural, and plural, singular, the Act didn’t say that words importing the feminine could ever be applied to males.
Even before the Dictionary Act, the political status of the masculine pronoun he was a subject for lively debate: did it include or exclude women? In 1845, for example, the well-known abolitionists Lysander Spooner and Wendell Phillips publicly disagreed over whether a woman could be president. Spooner argued that a woman couldn’t serve because the Constitution always refers to the president as “he” (The Unconstitutionality of Slavery, 1845, p. 117n.). But Phillips countered that,
In grammars, as well as law, the rule used to be, that the masculine pronoun and the word ‘man’ included the race. . . . The Constitution itself, in the 5th Amendment, has, ‘no person shall be compelled to be witness against himself.' [The Liberator, 29 August, 1845, p. 139]
The state of Illinois enacted a generic masculine law before the federal act was passed, and in 1869 an essay in the Chicago Tribune conceded that, although women could not vote because the Illinois constitution restricted voting to “every white male citizen,” women could hold elected office, because according to state law,
where any party or person is described or referred to by words importing the masculine gender, females, as well as males, shall be deemed to be included. [Chicago Tribune, 4 April, 1869, p. 2l]
Although the Tribune's anonymous correspondent championed the right of women to hold office, it’s not clear why the writer thought that male in the state constitution’s voting clause excluded women.
Both supporters and opponents of women’s rights focused on the scope of the pronoun he. If the pronoun was construed as generic, if he could refer as well to she, then statutes that used the pronoun he to refer to voters or members of certain professions, like the law, or to those eligible to hold certain offices, could not be used to bar women. But if he meant ‘only men,’ then laws with he meant ‘no women.’ Courts and public opinion were divided on the issue.
In 1881, a Maryland court cited that state’s generic masculine law in order to keep the legal profession an exclusive boys club. That year, Belva Lockwood, described in news reports as “the Washington lawyeress,” petitioned to be admitted to the Maryland bar on the grounds that, although the Maryland statute concerning qualifications for lawyers referred to them as men, state law also provided,
that the masculine shall be held to include all genders except where such constructions would be absurd and unreasonable.
But the Maryland court turned that law against Lockwood, denying her bid to practise law because,
it would be ‘absurd and unreasonable’ in the exact words of the code, to apply the pronouns ‘he’ and ‘him’ to a woman. [Detroit Free Press 13 May, 1881, p. 4]
In a similar case in 1902, the Maryland Supreme Court ignored the generic masculine statute altogether when it once again excluded women from the bar because state law refers to lawyers as he:
Unless this can be interpreted to include the feminine gender, then the court can find no legislation upon which to base a right to admit the present applicant. [“Not wanted in Maryland” The Biloxi (MS) Daily Herald, 6 Feb., 1902, p. 2]
This time, in response to the court's rejection of women lawyers, an angry state legislator rewrote the law, and the first woman was admitted to the Maryland bar later that same year. Unfortunately, changing the language of the law didn’t change the attitudes of the legal community: women had to form their own professional group, because the Maryland Bar Association continued to exclude them until the 1950s.
Suffragists also tried, typically without success, to invoke generic masculine laws to support their right to vote. In 1888, Equal Rights Party member Anna Johnson told the chief of New York City’s Election Bureau that generic he in New York’s voting law gave women the vote:
The English language is destitute of a singular personal pronoun, third person, of common gender; but usage sanctions the employment of ‘he,’ ‘him’ and ‘his’ as of common gender. Therefore under ‘he’ women can certainly register. [New-York Tribune, 26 Oct., 1888, p. 4]
Although Johnson claimed she was allowed to register, other women using the same argument were turned away at the polls.
The debate about the generic masculine resurfaced when women started running for Congress. Not surprisingly, in Maryland in 1909, the Baltimore Sun published an editorial arguing that it had no problem with a woman recently appointed as Maryland’s State Librarian, even though the law described librarians as male, but it supported the State Board of Elections' decision to ignore the generic masculine statute and rule that women could not serve in the legislature because the Maryland constitution refers to legislators as men. The Board reasoned that women couldn’t vote, and women legislators “would violate the spirit as well as the letter of the  Constitution” (Baltimore Sun, Oct. 11, 1909).
That same year, Sarah Platt Decker, a prominent Denver resident, contemplated a run for Congress. The Manchester (New Hampshire) Union questioned whether the use of the masculine pronoun in the U.S. Constitution would bar women from serving in Congress. The Constitution provides that,
no person shall be a representative . . . who shall not, when elected, be an inhabitant of that state in which he shall be chosen. [Art. I, sec. 2]
The Union raised the specter of someone whom we’d call today an originalist and a birther objecting that no one born a woman could serve in the House:
Strict adherents to the letter of the Constitution maintain that the presence of the masculine pronoun, and the absence of any other, obviously renders ineligible any person of the feminine persuasion. [Rpt. in The Baltimore American, 7 Aug., 1909, p. 8.]
In the end, Platt Decker did not run, but the question of women in Congress resurfaced in 1916, when Montana's Jeanette Rankin became the first woman elected to the U.S. House of Representatives. The Washington Post cited unnamed “students of the Federal Constitution” who warned that the masculine pronoun might prevent Rankin from being seated. But the Post quoted Barton Payne, a prominent Chicago judge, who dismissed this objection:
As for the ‘he’ in the Federal Constitution, I don’t believe it would be construed so as to prevent Miss Rankin from accepting the seat in Congress. [“Argue That ‘He’ in Constitution Might Bar Miss Rankin From House,” Washington Post, 12 Nov., 1916, p. 6]
Payne was right: for once, the pronoun posed no problem.
The generic masculine was not the only response to the lack of a common-gender, or nonbinary, English pronoun. Bertha Moore, a social radical, favored singular they because the generic he was “prejudicial, detrimental and unjust” (“Influence of Language,” in Lucifer the Light Bearer, Chicago, 25 Sept. 1902, p. 290). Many other critics of the generic masculine coined new pronouns to fill the gap (you can read about the long history of singular they and invented nonbinary pronouns here). Not all of them were kooks or people with too much time on their hands. In 1912, Ella Flagg Young, Chicago’s Superintendent of Schools, blended the masculine and feminine pronouns to create he’er, him’er, and his’er, and encouraged teachers to adopt them. But the very next day, Ben Blewett, Young’s counterpart in St. Louis, announced that he preferred the generic masculine to Young’s new pronouns. Blewett insisted, “generically we are all men,” at least until the feminist revolution takes hold, when the generic feminine can take its rightful place:
In fact when women achieve their ambition to enter all the walks of life in competition with men the feminine form of pronoun may come into general use. . . . Miss Young is represented as suggesting ‘he’er.’ Why not: ‘She’er’ and why not ‘her’er’ instead of ‘him’er.’ [St. Louis Post-Dispatch, 8 January, 1912, p. 14].
A less generous reaction came from George Harvey, the prominent editor of Harper’s Weekly and a strong proponent of the generic masculine, who took to his soapbox to warn that Young’s generic pronouns signaled the end times for language:
When ‘man’ ceases to include women we shall cease to need a language, and won’t care any more about pronouns. [Harper’s Weekly, 27 January, 1912, p. 5; although he hated invented pronouns, Harvey did champion Esperanto, an invented language, though one with no common-gender personal pronouns, and he actively opposed labor unions.]
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The Dictionary Act is hardly a perfect law. It defined persons as corporations, a concept that led the Supreme Court to rule in Citizens United v. Federal Election Commission (2009) that corporations should be free to buy elections if they choose to. An early 20th-century revision of the Act defined writing as “printing and typewriting and reproductions of visual symbols by photographing, multigraphing, mimeographing, manifolding, or otherwise,” but it has never been updated to include any writing technology invented after 1912. And an update to the Dictionary Act in 1996 defined marriage as “a legal union of one man and one woman as husband and wife,” a definition that the Supreme Court recently ruled unconstitutional in U.S. v. Windsor (2013).
Today the generic masculine has fallen into disuse because it’s perceived as uninclusive and ostentatiously binary, even when it’s trying to be gender neutral. In view of its long and troubling history, the most fitting celebration of the 145th birthday of the legal generic masculine would be to light a candle only after we declare it legally dead.