Back in January of 2011, the late Supreme Court judge Antonin Scalia decided to revive the crazymaking debate regarding the Fourteenth Amendment’s protection for women—or lack thereof. Here is what Justice Scalia told California Lawyer: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t…. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”

That was pretty rich. I guess he thought that these superannuated judges only get to haul in the Equal Protection Clause of the Fourteenth Amendment when it benefits the likes of George W. Bush.

Okay, so it is true that the authors of the Fourteenth Amendment took pains to ensure that women were excluded from its protection, by introducing the word “male” into the constitution for the first time. But. Oh, god! There were substantial problems with the original text of the Fourteenth Amendment. And ever since the Supreme Court case of Reed v. Reed, 1971, the Fourteenth Amendment has provided an explicit basis for granting women equal rights as American citizens. (By the bye, one of Sally Reed’s lawyers was Supreme Court Justice Ruth Bader Ginsburg; I wonder what Justice Ginsburg, who was photographed riding an elephant with Justice Scalia, for the two are said to be close friends, thought about his recent remarks.)

In any case, the original rationale for excluding women from the protections of the Fourteenth Amendment did not hold and has never held any water from the moment it was ratified until now. All of which brings us to the backstory of the Fourteenth Amendment, and to the thorny history of gender-neutral language in English.

Prescriptive grammarians have been calling for “he” as the gender-neutral pronoun of choice since at least 1745, when a British schoolmistress named Anne Fisher laid down the law in A New Grammar. This Anne Fisher was a force of nature, an entrepreneur who ran her own school—including night classes for women (“betwixt the hours of Five and Eight at Night”) — in the 18th century.

Languages with gendered nouns require the development of an inbuilt, bone-deep sense of gender neutrality. In Spanish, for example, mesa (“table”) is a feminine noun, but you don’t really think of the table as being a girl at all; it’s just a table.

That brain-wired kind of gender neutrality is what Anglophones are meant to be apprehending in words like “mankind” or “citizens”; one is meant to be thinking “everyone,” even though the word itself has got some gender to it, like “table” does in Spanish. The gender is supposed to evaporate right off such words according to the sense of what is being said. Or at least this was Anne Fisher’s view, and if people didn’t want to persist in being so horrible to one another, it would work just fine.

So Fisher’s elegant prescription regarding gender-neutral “he” caught on, and long remained the formal solution of choice. This is so even though certain high-octane English prose stylists had been resorting to singular “they” for this purpose from Chaucer onward. (Singular “they” suffers from an insurmountable defect, namely, that “they” is already plural.) But by the late 1840s, the long-fought effort to impose true gender neutrality onto “he” had collided headlong with the political realities of that sociopolitically volcanic era.

The 19th-century males who were hell-bent on keeping women in their place are manifestly to blame for the failure of the English language to assimilate a full concept of gender neutrality. Because it turns out that a lot of jerks who didn’t care for the idea of women practicing law or voting were willing to use pronouns as a serious argument in order to deprive them of equal rights — yes, to use pronouns as a weapon against women, and to take their specious arguments to the courts, and to get their way too.

The fat really hit the fire after the Civil War because the language of the Fourteenth Amendment, which granted rights to the newly freed slaves, came to include the word “male” in order that no doubt should remain as to the new condition of black women; they might be free, they might be “persons” or “citizens,” but they sure as hell weren’t voting. (Until then, the word “male” had been absent from the Constitution.) Susan B. Anthony and Elizabeth Cady Stanton fought like a couple of tigers to ensure that the Fourteenth Amendment was written in gender-neutral language, but no soap. Which takes us up to 1868:

Bradwell v. Illinois (83 U.S. [16 Wall.] 130) concerned the editor of the Chicago Legal News, Myra Bradwell, who, having passed the state bar examination, was refused a license because she was a woman. Petitioning the supreme court of Illinois in September, 1869, Bradwell cited the state’s interpretation rule: “When 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.”

In denying Bradwell’s petition, however, the Illinois court simply pointed out that the state’s interpretation rule did not apply “when there is anything in the subject or context repugnant to such construction.” What was “repugnant” to the court was the idea that women might hold public office, including, strictly speaking, the “office” of attorney. The U.S. Supreme Court later denied an appeal based on the Fourteenth Amendment.

And then it got worse!

In 1872, Susan B. Anthony and fifty other women registered to vote in Rochester, New York, and got into all kinds of hot water. Anthony was arrested and freed on bail, at which point she took to the lecture halls to rail against sexist pronouns:

[I]t is urged [that] the use of the masculine pronouns he, his, and him, in all the constitutions and laws, is proof that only men were meant to be included in their provisions. If you insist on this version of the letter of the law, we shall insist that you be consistent, and accept the other horn of the dilemma….

“There is no she, or her, or hers, in the tax laws,” concluded Anthony, blasting her opponents to smithereens. “The same is true of all the criminal laws.”

I insist if government officials may thus manipulate the pronouns to tax, fine, imprison, and hang women, women may take the same liberty with them to secure to themselves their right to a voice in the government.

Moded corroded, right? But no, she lost anyway! First the judge told the jury to find Anthony guilty; when her lawyer objected, the judge tossed the jury out completely and pronounced her guilty himself. Then she didn’t get to appeal, because her lawyer had gone and paid the fine (“chivalrously,” if you can believe).

Now you’d think that these high-profile cases would have created a lot of ruckus among those writers who took on the semantic aspects of the pronoun question, but you’d be wrong. There was a flurry of newspaper articles from the late 1860s through the 1880s, some calling for an altogether new pronoun, some plumping for singular “they,” but none brought up the very serious difficulties liable to be endured by women as the direct result of pronoun ambiguity. The apoplexy-inducing condescension of egregious buffoon Richard Grant-White in The Galaxy of August, 1868 was by no means exceptional:

A speaker of good common sense and of fair mastery of the mother tongue would say, “If a man wishes to sleep, he must not eat cheese for supper,” where man, as in the word mankind, is used in a general sense for the species. Any objection to this use of man, and of the relative [sic] pronoun, is for the consideration of the next Woman’s Rights Convention, at which I hope it may be discussed with all the gravity beseeming its momentous significance.

Throughout the troubled 19th century and beyond, a lot of English speakers continued to fall back on singular “they,” particularly in colloquial speech. This solution, however, continued to be frowned on by the best authorities, by whom I mean the Fowler brothers, the greatest English grammarians who ever lived.

They, them, their, theirs, are often used in referring back to singular pronominals (as each, one, anybody, everybody), or to singular nouns or phrases (as a parent, neither Jack nor Jill), of which the doubtful or double gender causes awkwardness. It is a real deficiency in English that we have no pronoun, like the French soi, son, to stand for him-or-her, his-or-her (for he-or-she French is no better off than English). Our view, though we admit it to be disputable, is clear — that they, their, &c.;, should never be resorted to, as in the examples presently to be given they are. […]

Anybody else who have only themselves in view. — Richardson. (has … himself)

Ce n’est que le premier pas qui coûte, in novel-writing as in carrying one’s head in their hand. — S. Ferrier. (one’s … one’s)

Everybody is discontented with their lot in life. — Beaconsfield. (his)

For all its persuasiveness and grace, no conclusive victor in the pronoun wars has emerged in the hundred-odd years since the above passage was written.

Speculative fiction has concerned itself with the thorniest gender issues for about forever. As far as gender-neutral neologisms go, the earliest attempt to grapple with those in speculative fiction that I know of was made by Austin Tappan Wright in Islandia, a utopian fantasy written in secret before the author’s sudden death in 1931 (published 1942). Wright did away entirely with the words “wife” and “husband” in this book, substituting the unisex word alia (“sharing-lover”). The Islandian world is kind of haute-agrarian, a Luddite culture, slow, quiet, gentle, with a minimum of gender differences (no real division of labor between the sexes, for example) and very loose connections between couples (all of whom are straight, as I recall).

Ursula Le Guin’s The Left Hand of Darkness, published in 1969, contains the immortal words, “The King was pregnant,” and it opened the floodgates for speculative fiction written along feminist lines, complete with pronoun-neologizing.

The elegant prose stylist was at war for decades with the equally powerful feminist inside Le Guin; in 1979, she practically shouted, in Is Gender Necessary: “I utterly refuse to mangle English by inventing a pronoun for ‘he/she.’ ‘He’ is the generic pronoun, damn it.”

But eventually Le Guin would do just that, rewriting the first chapter of The Left Hand of Darkness using new pronouns of her own, and offering the “repronouncing” version as an appendix to a new edition.¹

The 1970s saw the next wave of pronoun debates — not coincidentally, in the wake of a second women’s movement. There was a volley of new pronouns, despite the fact that none of the 19th-century ones had gotten anywhere. By the end of the 1970s over eighty new gender-neutral pronouns had been coughed up, including en, thon, hir, hesh, hizer, hirm, sheehy, and sap. As well, the currently fashionable “she” was proposed around this time.

In 1970, Dana Densmore’s article “Speech is the Form of Thought” appeared in No More Fun and Games: A Journal of Female Liberation; Densmore is evidently the first U.S. advocate of “she” as a gender-neutral pronoun, a solution many writers, particularly academic writers, favor today. (There are also proponents of alternating “he” and “she” — among them, interestingly, Justice Ginsburg.)

Densmore’s ludicrous claim was that “’she’ is appropriate for the ‘he or she’ usage because within the one word it contains both the old ‘he’ and the old ‘she.’” The fact that the new “she” also consists entirely of the old “she” seems to have escaped her entirely.

Densmore admits that there would be “some confusion during the transition period,” while people get used to the idea of an “asexual she”. And after it too, I fear. But the confusion is good, Densmore says, because “if nothing else, it would show men how it feels to have one’s inclusion uncertain and permit women a hint of what it feels like to live in a world that is theirs” (emphasis in original). Her other suggestions, “herm” and “heris,” follow a similar logic. “The old words will have to be scrapped entirely,” she explains breezily.

Forty years on there has been a serious move toward “she,” but “herm” and “heris” are both non-starters. I venture to suggest that “she,” too, will eventually fail, because it won’t reach escape velocity out of the academy and into the wider world. The logic of it is all wrong, as Densmore unwittingly demonstrates in her remarks above. On the one hand there are those who are championing “she” as a true gender-neutral pronoun when a different and highly specific sense has been fixed in that word for centuries, so that the proposal makes no more sense than suddenly calling all men and women “women”; on the other, there are those who seek to draw attention to gender inequality by forcing extra consideration on women every time an indeterminate pronoun heaves into view. If it is outmoded to open a woman’s door for her or light her blasted cigarette, what are we to make of this? Where’s the equality in it? It seems “not a solution, but a retribution,” as one poster on a WordReference forum described it, “substituting one chauvinism for another.”

The two aims, one semantic and one political, are at each other’s throats.

Despite the lack of clarity or sense in using gender-neutral “she,” it seems that those who have been through graduate school in the humanities have generally succumbed to it. Even the best prose stylist of my generation, the late David Foster Wallace (whose mother is a superb — and hilarious — grammarian²) fell victim to “she.”

Setting aside the practical difficulties of gendered pronouns for those for whom they are inappropriate, nobody is served well in our current pronoun setup. Among the non-academic writers of my acquaintance, “they” is gaining ground, but “he” still wins the day, hands down. I haven’t managed yet to make the leap myself, and very much wish there were another way.

¹ The evolution of Le Guin’s thinking is marvelously sane, but complicated; the story is covered in detail in Anna Livia’s Pronoun envy: literary uses of linguistic gender, OUP 2001.

² Her book, Practically Painless English, I recommend unreservedly to all grammar wonks and lovers of comic literature.