Gendered Language in State Constitutions: A Conversation Starter
PHOENIX — The South Dakota constitution designates the governor with male pronouns, referring to them as a “he.”
However, the state has experienced a female governor—Kristi Noem, who served for six years as the first woman to hold this position. In a bid to modernize the language, Noem championed a constitutional amendment aiming to eliminate gender-specific terms. Unfortunately, the proposal did not pass during the 2024 general election, which also included provisions to recognize nonbinary identities.
Outdated Language Across the Nation
State constitutions across the United States predominantly default to male pronouns for holders of office, reflecting antiquated views. This year, before Noem’s resignation to join President Donald Trump’s Cabinet, the number of female governors hit a record high of 13. Additionally, the Center for American Women and Politics at Rutgers University reports that 2,469 women are currently serving in state legislatures.
Modifying Gendered Language
While some states, like New York and Vermont, have successfully updated their constitutions to be gender-neutral, many others have yet to modernize. A recent attempt in Washington state to amend its constitution failed to advance beyond legislative committee in 2023. Meanwhile, Connecticut state Senator Mae Flexer plans to push for another attempt at constitutional revision this session. A few states, including California and Nevada, have adopted gender-neutral terms for lawmakers in their legislative frameworks.
The Significance of Language
Debbie Walsh, director of the Center for American Women and Politics, emphasizes the importance of language in reflecting societal values and inclusion. In her 2023 State of the State address, Noem highlighted the need for an update, noting that the South Dakota constitution, established in 1889, has outdated references. She remarked, “The constitution doesn’t say she, and maybe we should fix that sometime.”
Legislative Efforts for Change
Later in 2023, Noem signed legislation aimed at modifying male-centric phrases in state law, altering “he shall deem” to “the Governor deems.” However, proposals to amend the state’s foundational document necessitate voter approval—a step South Dakotans did not support.
Challenges Faced
The bill’s sponsor, Republican state Senator Erin Tobin, envisioned the amendment as a celebration of the state’s progress in electing women. Tobin noted that the amendment failed partly due to the contentious term “pronoun” in the ballot language, which tangled it within a broader conservative debate dismissing nonbinary identities. Additionally, there was minimal campaigning for or against the measure and concerns raised about the financial implications of making such a change.
Contrasting Views
While acknowledging that using “he” and “she” may inclusively refer to many transgender individuals, it’s noteworthy that Noem has a history of opposing gender transition initiatives. In 2023, she enacted legislation banning gender-affirming care for minors and previously restricted transgender girls and women from competing in sports aligned with their gender identities.
Political Context
Noem resigned in late January to lead the U.S. Department of Homeland Security under Trump, who, in recent executive orders, aimed to define gender strictly as male or female, pushing against transgender rights within sports and beyond.
Future of Gendered Language in Law
Tobin expressed that had she been unaware of the specific South Dakota amendment, she might have voted against it due to its wording. Republican South Dakota state Representative Brandei Schaefbauer encouraged voters to reject the measure, supporting the use of “he” or “she” for officeholders while opposing gender-neutral terms.
Schaefbauer stated, “We are male and female, and when this was gender-neutralized in the constitution, it was taking away the personhood and that is not how I live my life.” Conversely, Neil Fulton, dean at the University of South Dakota School of Law, noted that masculine pronouns have traditionally included all genders and reflected the drafting conventions of the time. Yet, he acknowledged the evolving nature of language and the legislative manual’s guidance against using male pronouns for individuals.
