Is It Time for Inclusion in the U.S. Constitution?

Nicole Day

Nicole Day, RWU Law Class of 2021

Juris Doctor

Recent years have seen much passionate debate over the introduction of gender-preference and gender-neutral (they, them, theirs) pronouns in public life, as alternatives to the “he” and “she” traditionally used in offices, schools and institutions.

But is it way too soon to introduce such changes into the nation’s supreme legal document – the Constitution of the United States?

Not according to RWU Law 2L Nicole Day, who recently began circulating a petition to change the exclusive use of the pronoun "he" in the venerable document. As Day explains in the petition’s introduction:

The U.S. Constitution uses the pronoun “he” when referring to the President of the United States. Considering that the Constitution was ratified in 1787, when women could not vote, it makes sense that “she” or “they” were not used.
However, it is 2020 now. We have several women candidates running in this election, several who have run in the past, and one who won the popular vote. It is time for our country’s highest legal authority to acknowledge a woman’s ability to become president.
By signing this petition, you will help me pique the interest of my local congressman, David Cicilline [D-R.I.], to have him bring the issue before the House of Representatives.

In a time of acute political and social crisis, doesn’t arguing over pronouns seem like a somewhat frivolous indulgence?  Absolutely not, says Day.

“It’s not just a matter of semantics,” she explains. “There is a history of gender inequality in this country, particularly when it comes to politics. Young girls see women candidates running today, but when they take a government class, they see that the Constitution only refers to the president as ‘he.’ When they ask why, the teacher probably explains that women’s rights were different then, and that women could not even vote when the Constitution was ratified. But the next question out of their mouths will be, ‘Well, why hasn’t it been changed?’”

That reality gap can, in itself, be damaging, Day says.

“It seems there may be some implicit misogyny at play when women are running for president,” she notes. “And we need to look at where that misogyny stems from. These little lessons we learn when we’re younger – for example, that the president is only referred to as ‘he’ in the highest legal document in the land – those lessons do add up, and can help create a culture where men are seen as fundamentally different than women. Of course, that is a lie and needs to be corrected.”

'Harder Than I Thought'

The seed of Day’s petition was, in fact, her Constitutional Law class, in which Professor Jonathan Gutoff typically used gender-inclusive language in discussing the Constitution.

“He is a really nice, wonderful man,” Day recalls. “I noticed that when he referred to parts of the Constitution concerning the presidency, he would always make it a point to say ‘he – or she,’ and sometimes he would just use the pronoun ‘she.’ When he did that, I thought, ‘Yeah, it actually is kind of weird that it still says ‘he.’”

Day knows how to make an impression: the University of Colorado graduate came to RWU Law after a decade spent in Los Angeles working in the entertainment industry – producing, directing and acting in film, television and on stage. However, initial reactions to her petition weren’t the enthusiastic, non-partisan, “Of course! Obviously!” sort of endorsement she’d hoped for. In fact, initial responses ranged from disinterest to disdain.

“Some of the comments I got on the Internet made me think, ‘Oh, this might be harder than I thought,’” she says. “Also, we're all so overwhelmed with data that a notice to sign a petition can easily get lost in the flood of requests, notices, news, texts, advertisements and emails that people receive in a given day.

But Day is far from giving up.

“I hope to go around to different events with a paper petition and discuss it with people human-to-human, face-to-face,” she says. “Also, Id like to start a club through the Student Bar Association, reach out to other schools that way, and build a national web’ of sorts.”

Still, even if she were to receive thousands of signatures, Day acknowledges that changing the Constitution’s pronouns would face massive political hurdles – including a two-thirds vote in both the U.S. House and Senate, and approval by three quarters of state legislatures. It’s a feat that has only been pulled off 27 times in U.S. history. But, Day notes, you have to start somewhere.

“Even if the petition does not immediately lead to ‘bigger things,’” she says, “I think simply getting more people aware of the issue and talking about it is important in itself.”