Corey McCann is closing on a condo. Corey has just one more question for the title company agent:
I wonder why, in the definitions in the mortgage agreement for the recorder’s office, I’m called “Corey McCann, a single woman.” Only my name is relevant. I could understand declaring the single status—if there is a firm reason that the record must show, for example, that there is no co-habitant or person who might try to claim an interest in a divorce. But I don’t voluntarily identify myself in public documents or online by gender. I’d rather not do so now.
The title company agent answers:
Good question. Title companies don’t add this language to the deed, unless the conveyance is between family members and it’s needed for transfer tax purposes. It’s the lender who creates the mortgage agreement. We can’t change its language. If a buyer is single, or the buyer is a married person whose spouse isn’t on the document, lenders seem to add it. I’m never sure why!
To Corey, a first-time homebuyer, the closing is a hard-won milestone. Corey doesn’t want to create a delay or throw things off. Still, for Corey, the mortgage agreement is misgendered. Corey self-identifies as non-binary. Someone used an assumption or a piece of identification to classify Corey as an unmarried woman. Did the mortgage company need to do this?
Precision and Gender in Legal Writing
Legal writing is precise. It must be. For example:
- A court’s interpretation of an agreement can depend on a comma.
- The writing of and between two names on a disbursement to the two people means that the pair must accept the money jointly. The absence of and on a check to two people means or. One or the other named person can deposit this payment into an individual bank account.
- Sales or foreclosures may face challenges because of an ambiguity in the legal description of the deed.
Words, even little words, matter.
A commitment to precision can keep people from using gender-neutral language—especially the word they when referring to an individual. Yet many professionals and organizations are finding value in rethinking language, in order to make legal writing inclusive.
Some writers have, of course, adopted phrases such as she or he; yet this does not include intersex or non-binary people. Let’s take a closer look at gender identities beyond the binary of female or male.
Intersex Identification
Intersex people have chromosomal or other sex characteristics that do not fit typical ideas of either female or male. Observing that intersex people are as common as people with red hair, we get a sense of how many people may be invisible or erased in legal documents and ordinary conversation.
Indeed, some intersex individuals expressly decide not to identify themselves as either exclusively female or exclusively male. While intersex people might adopt any gender identity, many do desire the intersex identity to be respected in their public documents as well as in their private lives.
An emerging movement in the United States and worldwide is working to enable the intersex person to hold a non-binary state driver’s ID, birth certificate, and passport. Fortunately, with deed language, the answer is as simple as using non-gendered language that includes everyone.
Transgender Identification
The T in LGBTI stands for trans people—a significant segment of home sellers and buyers. Caitlyn Jenner and Chelsea Manning have raised the profile of the transgender community, which includes 1.4 million people in the United States alone. Just about everyone has met transgender people in the ordinary course of their lives.
As David Galowich writes for Forbes: “Never assume that someone is or is not trans based on how they look.” Galowich adds that asking a person’s gender identity is respectful, and when it’s not possible to ask, it is appropriate to use they.
Moreover, if a person makes a transition after a deed is already recorded, using gender-neutral pronouns in the first place can help make any change in documents unnecessary.
Non-Binary Identification
Asia Kate Dillon played Taylor Mason, a non-binary person, on the TV series Billions. Dillon identifies as non-binary in real life as well, and prefers the pronouns they, their, and them.
Could the absence of a gender identifier on a deed cause a human being named Taylor Mason to be confused with, say, a company called Taylor Mason? The question is reasonable. Then again, multiple people are named Stuart Hall, a presumably gendered name that could conceivably be confused with Stuart Hall the school, or Stuart Hall the stationery company—or, for that matter, another person named Stuart Hall.
Getting down to basics: a real estate deed conveys property from a seller to a buyer. A legally sound deed identifies these parties, and states the correct legal property description. The parties simply must be identified so a court could identify them, given the totality of evidence surrounding the execution of the deed.
Acceptance of Gender Inclusion in Journalism and Dictionaries
Multiple mainstream journalism and dictionary companies accept the singular they as a replacement for gendered pronouns in the English language:
- Both the Chicago Manual of Style and the Associated Press Stylebook now accept the singular they for people who do not identify themselves by gendered pronouns.
- The Washington Post allows for the singular they in the same circumstances.
- The American Heritage Dictionary also does.
Is it time for the legal document drafters to take note? Some of them have.
Gender-Inclusive Language in Official Documents
Many drafters of wills and trusts explain in these documents that plural terms may be construed as singular, and vice versa, unless context dictates otherwise, and that a gendered pronoun may be construed as denoting another gender—again, as appropriate in context. Other common language in a will, for example, is my executor in its discretion.
The Glossary of Terms published by the Norfolk County Registry of Deeds in Massachusetts explicitly does away with the old-fashioned legal concepts of curtesy and dower. The glossary defines curtesy as the common-law right of a male person to real estate owned by a deceased partner during their marriage. It then states:
In Massachusetts, common-law curtesy has been abolished and replaced with gender-neutral dower rights.
Dower, the glossary explains, is the parallel right of the female spouse to real estate owned by a deceased partner. The glossary states:
Under Massachusetts statute, dower rights are gender-neutral.
Marriage certificates are also evolving, through the removal of gendered terms to describe life partners. Husband and wife have made way for partners in marriage. Bride and groom have stepped aside for Spouse A and Spouse B.
As for insurance, government medical assistance, and other benefits related to gender identity, federal regulations expressly bar unequal access to healthcare on the basis of sex. The regulations define the basis of sex as encompassing the basis of gender identity. Thus, the American Bar Association states, “covered entities must be careful to respect the person’s stated gender identity.”
Best Practices
If the pronoun they appears to contradict the state’s instructions, we do have options. Sometimes a plural term provides the perfect solution. For example, we can change:
If a subscriber owes a fee, he should send it to…
to:
Subscribers who owe fees should send them to…
We can also:
- Use the relative pronoun who instead of the gendered pronouns she or he.
- Drop gendered titles such as Ms., Mrs., Master, or Mr. when the person’s first and last name will suffice.
- Replace gendered terminology for married people by calling them spouses. Buyer, owner, applicant, or individual are inclusive terms—as opposed to single woman and similar phrases, which are becoming archaic to the modern ear.
- In wills, consider the terms personal representative or executor, which properly refer to a person of any identification. As Julie Garber in The Balance puts the point, executrix is a “holdover from more gender-specific days gone by.”
- Adopt gender inclusivity when writing about social roles and employment: Member of Congress, actor, firefighter, board chair. Ladies and gentlemen can be replaced with Dear Members (Readers, etc.) All lawyers can be called Attorney rather than Mr. or Ms.
- Consider revising outdated deed, mortgage, and contractual documents, replacing gendered language with inclusive terms.
If anything, legal drafting will become stronger through these efforts. Pronouns are never as precise as proper names. Moreover, there is no harm in repeating the antecedent noun (the name) rather than using its proxy, a pronoun. As Heidi K. Brown, director of legal writing at Brooklyn Law School, writes in the ABA Journal, we can respect sound linguistic practices and societal change together.
Each Person Is Unique
A clear chain of title is indispensable for financing or selling real property. The accurate identification of people in the chain of title can co-exist with gender neutrality and respect for everyone’s sexual identity.
As the facts and documents connected with each deed is unique, we recommend speaking with a real estate attorney licensed in your state for advice and assistance on drafting an accurate and operative document.