If you haven’t already heard, Texas’s state senate was engaged in a political thriller last night. I was able to catch the last 40 or so minutes of its livestream, riding that delightful roller-coaster of modern politics that trundles from dim optimism that something good will happen to the crushing realization that the deck has been stacked against it so thoroughly that you can only hope to minimize your losses.

Well, thankfully, there was a substantial group of state senators who managed to lack such pessimism and who stood up to do right by their constituents. Literally, in the case of Sen. Wendy Davis, who began a filibuster of an anti-abortion bill 13 hours before the special session was set to end at midnight. By rule, she had to keep talking throughout, stopping only to take questions. She was not allowed to sit, lean against a desk, leave the floor, or eat. None of this “silent” filibuster garbage of the federal senate: no, this is “Mr. Smith Goes to Washington”, wreck-your-body-because-you-believe-in-what’s-right dedication.

What I hope becomes an iconic picture of this event.

Sen. Tommy Williams couldn’t have looked more like a political caricature while arguing for a second strike against Davis’s filibuster because another member helped her adjust her back brace. [Photo: Patrick Michels, Texas Observer]

Davis made it ten hours before getting three strikes on her filibuster. Other senators took over, stalling until 11:45, when the Republican majority managed to trigger a vote to trigger a vote on the contemptible SB 5. With this first vote passed and the bill’s passage imminent, Sen. Leticia Van de Putte challenged the first vote on the basis of her having an outstanding inquiry at the time of the vote, a challenge the Senate president overruled by noting that he had not recognized her inquiry.

With calm fury reminiscent of Joe Welch, she asked, “At what point must a female senator raise her hand or her voice to be recognized over the male colleagues in the room?” The gallery erupted in cheers that continued for the last fifteen minutes of the day, a cacophony that prevented the final roll-call vote from happening until after the midnight deadline. It was powerful stuff, and my eyes welled more than once throughout it.

But this is a grammar blog, and I wouldn’t bring this up unless there was a grammatical discussion to be had. Let’s go back to the second of the three strikes against Davis’s filibuster, the objection I’ve included Patrick Michels’s excellent picture of above. Claire Cardona wrote at the Dallas Morning News’s filibuster liveblog:

“Sen. Tommy Williams, R-The Woodlands, raised a point of order on the filibuster because Davis had help from Sen. Ellis to readjust her back brace. [...] but Sen. Judith Zaffirini, D-Laredo, brings up a part in the rules that would permit Davis to sit. [...] Zaffirini notes that the rules said ‘may not lean on his desk, his chair, and that note doesnt apply to Sen. Davis.'”

The rule in question, which I think is Senate Rule 4.01 [PDF, p. 8-9], reads:

“When a member has been recognized and is speaking on a motion to re-refer a bill, he must stand upright at his desk and may not lean thereon (61 S.J. Reg. 1760, 1762 (1969)).
When a member has the floor and is speaking on a bill or resolution, he must stand upright at his desk and may not lean or sit on his desk or chair (61 S.J. Reg. 1059 (1969)).”

Of course, we all know what is meant there, that the intended interpretation is gender-neutral he. We see such usages regularly, probably think little of it, and move on. To claim that the use of he in this rule means it doesn’t apply to a woman is crazy, surely.

Or is it? During a filibuster, pedantry is everywhere. I learned but one thing from the time I volunteered at a Model Congress convention: intent and common usage mean little as the parliamentarian sifts through Robert’s Rules of Order to decide which of the fourteen simultaneous objections takes precedence over the rest. Grammatical pedantry, so often out of place, is only fair in this situation.

[Rt. Hon. W.L. Mackenzie King and guests unveiling a plaque commemorating the five Alberta women whose efforts resulted in the Persons Case]

The Canadian “Persons Case”, in which women were suing to be granted the right to be appointed to the Senate, depended in part on whether he included women. The legal gender-neutrality of he had in fact been specified in 1889’s Interpretation Act.

I’m no legal expert, and I’m certainly not an expert at what terminological choices are taken as given in the Texas Senate rulebook, so take this discussion with a grain of salt. But Zaffirini’s argument isn’t without merit. I found no declaration at any point in the Senate Rules that he is to be assumed as gender-neutral. In fact, there are eight instances of “his or her” in the rules — one occurring in the first sentence of Rule 4.01, the very rule being debated. If he is understood to be gender-neutral in the third and fourth sentences of Rule 4.01, why is he insufficient in the first?*

I wrote last year about how such uncertainty of the interpretation of gender-neutrality on the male pronoun in governmental settings was not a new concern: even the first U.S. Congress, in 1790, used “he or she” in some of their bills. It’s all hair-splitting, of course, but it’s a hair that may need to be split. When the issue at hand is so entwined with gender, maybe it’s a good time to examine our assumptions, starting with a little pronoun.


*: Possibly because the third and fourth sentences are based on 1969 formulations and the first sentence isn’t. But are Senate rules to be interpreted diachronically or synchronically?

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