Women’s Law Collective: Experiences of Women in the Courtroom

Melbourne University Law School

RTF version - 64.7 KB

You may have seen the statue of a woman in front of the Supreme Court. She is seated and holds a sword. She is Themis and, as adviser to Zeus, she personifies justice. Although a woman has commonly represented justice in this way in Australia and other common law countries, there were no female judges in the legal system established by British settlers in Australia until 1965. In that year, Roma Mitchell was appointed to the Supreme Court of South Australia. It is said that, on her appointment, one of her colleagues remarked:

I don’t believe in women in the profession, but Roma’s different. She’s got a man’s mind.^[1]

In 1983, when Justice Mitchell retired there were no other women on any Australian State or Territory court. It took another twenty years or so from her appointment before another woman joined senior judicial ranks. Justice Jane Matthews was appointed to the New South Wales Supreme Court in 1987. Also in 1987, Justice Mary Gaudron was appointed to the High Court. Until the 10th February this year, there was one woman on the Court of seven.

Although the growth in the number and proportion of women in the legal profession has increased from 3.9% in 1961^[1] to around 29% of the practising profession today^[2] women lawyers remain clustered at the lower levels of the profession.

In the late 1970s, the percentage of female law graduates was around 30%.^[2] It had risen to 50% by 1994.^[3] Given these figures, it is reasonable to assume that today around 30% of partners and 30% of the judiciary should be female. The statistics show however that women are seriously under represented at senior levels in solicitors’ firms and in the courts. The New South Wales Law Society 2002 paper ,“After Ada – a new precedent for women in law”^[3] observed that:

One-third of solicitors aspire to be partners, with this proportion decreasing as age increases. In all age groups (except those over 50 years of age), men are more likely than women to aspire to be partners. Reasons cited by women likely to prevent them achieving their aspiration to become partners include: commitment to family responsibilities, lack of appropriate female role models, lack of mentoring and gender.^[4]

This means that fewer women than men manage the conduct of litigation. Most court days I spend talking to men about how they want to organize and carry on the central business of the court, namely, hearing cases. For reason I explore later this affects what goes on in court and how decisions are made.

The NSW paper indicates of course that the number of women partners is increasing; and when women make partnership, their earnings are equal to men. We must recognize however that, as solicitors, women still earn on average less than men and exercise less influence on the running of the courts. The paper found that on average, in the income year 2000 to 2001, women lawyers in New South Wales earned 76% of male lawyers’ salaries. The gap for first year solicitors between women and men was $8,200 in favour of men. The gap increased to $19,800 for solicitors admitted for more than 30 years.^[5]

It may be worse for women lawyers who aspire to be advocates in the courts. In August 2001, in an address to the Victorian Women Lawyers’ Association, Justice Kirby remarked that, in his first eighteen months on the High Court, he heard about two hundred barristers argue their cases but only six were women.^[6] In the previous year, 2000, there were 6 women who had speaking parts before the Full High Court. Last year, five women appeared as senior counsel, of which three were silks. There has been no increase in the numbers of women with “speaking parts” in the High Court since I came to the Bar. In fact, there has over the years been a decrease in numbers.

For short periods in 2001 and 2002, a number of courts conducted informal surveys of appearances (that is, the occasions when women barristers represented the litigants in court). The data collected confirmed anecdotal accounts by judges and barristers that female barristers continue to be under-represented in appearances in courts in proportion to their numbers on the practicing bar roll. This under-representation is most apparent at the more senior levels and at the more complex stage of proceedings. However, gender and seniority statistics prepared by the bar for 1998, 2001 and 2003 show a dramatic decline in the percentage of women practising in the most junior ranges and negligible growth in the percentage of women practising in the middle and senior bar. The survey results should be cause for alarm to anyone committed to the principles of equality of opportunity. Importantly, so far as I am concerned, I all too seldom hear from another woman in my court. I am convinced that this has an adverse effect on the court system as a whole.

Why is it that judges and lawyers in Australian courts are generally male? I can think of three reasons. First, there are the biases that exist throughout all of Australian society. Secondly, these biases are entrenched in the law and the legal system. Thirdly, the conventional domestic responsibilities of women and the nature of the legal workplace have made it difficult for women to advance into senior positions.

There is plenty of evidence that the masculinity of the judiciary reflects gender biases that have been entrenched in Australian society for a very long time. After all, married women were excluded from many occupations until comparatively recently. I was just about to enter secondary school when the Public Service Act 1922 (Cth) was amended to allow married women to hold permanent positions in the Commonwealth Public Service. These biases, while fading, have not been eliminated.

Secondly, discrimination against women because of their sex is part of the history of women in the law. Many in the judiciary and the legal profession vehemently opposed women’s attempts to enter the profession in the late nineteenth and the early twentieth century. Indeed women did not enter the profession in any numbers until the 1970s.

Another reason for the homogeneity of the judiciary results from a combination of the nature of the workplace and allocation of domestic responsibilities. Even today women generally perform more domestic work than men. One study has found that Australian men spent twice as much time on paid activity as on domestic work. For women, it is the reverse. A Family Responsibilities Study conducted in 1998 found that:

The legal profession is particularly inflexible, and unwilling to consider flexible work options. Valuable employees are sidelined if they cannot commit to the incredible hours. 4

The 1998 Study found that 85% of female solicitors had a spouse who was working on a permanent full time basis in contrast with 31% of the male respondents. So while most men had a full time partner at home looking after them and the family, most female solicitors were not so blessed. The long working hours of a lawyer may mean that those with more household responsibilities become unable to meet the excessive hours. This creates a “mummy track”, where women are pushed into “accommodation” strategies and drop back into part time work, change jobs, take lower status jobs that give them more “flexibility” or simply leave the profession altogether.

The life of a successful barrister has so far as I have seen always been an especially demanding one. In the Keys Young report prepared for the New South Wales Department for Women 8 years ago, one barrister said:

To be good at the Bar, it has to be your number one priority. I work 8 to 8 and some weekends. If you knock back work you are not regarded as a serious barrister. It is interesting that you can knock back work if you are on a long case … but not for family responsibilities. You would not be taken seriously.^[4]

Another barrister in Victoria is reported as saying:

Undoubtedly, it doesn’t matter how much of a new age guy your husband is. You’ve been court all day, you’ve got to be in court tomorrow, you go home and you’re putting the kids to bed and cutting lunches and pressing school uniforms, and God knows what, and they’re going home to some wife saying, ‘Don’t disturb Daddy; he’s got a very busy day in court tomorrow’. It means that you get by with very little sleep.^[5]

There is little evidence that the life at he bar has changed. This may account for the drop in women at the early levels of the bar and the few at the top.

Women have not, however, been held back simply because of the nature of life at the bar and domestic responsibilities. There is ample anecdotal evidence of subtle and not so subtle discrimination. Technically barristers are independent practitioners. However, a feature of the Bar is clubbishness. Sometimes this clubbishness leaves women out in the cold.^[7] Justice Gaudron once remarked that the Bar is “not conducive to an atmosphere to which women easily adapt”.^[8]

Does all this matter? As I have said I think it does. But why? There is evidence that public confidence in the judiciary is undermined by perceptions about its composition. Some years ago the media suggested that the masculine character of the benches around Australia was leading to a degree of injustice. You may recall that Justice Bollen in South Australia made some much criticised remarks in a rape in marriage case. The media took up his and other judges' remarks and questioned public faith in the judiciary. In response, the Commonwealth Senate initiated the gender bias inquiry.

The Senate Standing Committee's Report would not have allayed public concerns. It said:

The Committee considers that a significant number of the cases examined demonstrate the resilience in some jurisdictions of certain unconscious beliefs and stereotypes in cases of alleged sexual assault. The belief that women, for various reasons, concoct incidents of sexual assault, still seems to be common among some judges. By adhering to these traditional statements, the rationale for which other judges have questioned, judges are potentially influencing the outcome of cases.^[6]

The Committee concluded:

To the extent that an impression has been created that the publicised comments are in some way typical of overt prejudice on the part of the judiciary as a whole, it is a false impression, and the publicity that the comments themselves have attracted has been exaggerated. However, the evidence has led the Committee to conclude that a problem exists that is wider than a handful of isolated instances.^[7]

Some scholars have sought to take the case for women further than this. Writing on the Canadian situation, Isabel Grant and Lynn Smith observed:

While the bench cannot be perfectly representative of every segment of society, it is especially important that it be reasonably representative of women. Laws often make distinctions expressly based on gender, or have a clear differential impact on women. … Judicial decisions in many areas have a much greater impact on the lives of women than on the lives of men. Citizens who are women should be able to know that they are fairly represented in the judicial branch. To see the force of this argument consider the reaction if the present statistics were reversed, and the judiciary were 91.2% female.^[8]

If judges are seen to come from only one group, whether male or non-indigenous or non-Asian or non-Catholic or non-Jewish or non-government school, then those outside the group not unnaturally believe their perspectives are neglected. This lessens community understanding and acceptance of judicial decision-making. The homogeneity of the bench promotes the idea that authority in Australian society is held because of a person's sex, ethnicity, or socio-economic status, not because of merit.^[9]

A more diverse judiciary promotes better (in the sense of fairer) courtroom behaviours. Judges set the tone in the courtroom because they control the conduct of the participants and define what is and what is not appropriate courtroom conduct.^[10] The courtroom has not been a comfortable work environment for women. In their report for the Victorian Bar Council, Hunter and McKelvie reported that interviewees said "the courtroom was being 'sexualised' by reference to female participants".^[11] They said that one solicitor spoke about notes being passed around the bar table making "outrageous" comments about the appearance of women in the courtroom. Although Hunter and McKelvie reported that, in Victoria, the instances of "gender biased treatment from male judges have diminished over recent years",^[12] some women had received questionable forms of addresses from magistrates or judges, such as "girlie", "love", "young lady", or "having a cat fight are we ladies?"^[13]

Gender bias may however deeply affect the relationship of the advocate and the judge. One report said:

The lawyer whom the judge knows or whose work appears reliable is usually forgiven, is not sanctioned and is extended every courtesy. Women attorneys reported their belief that more often than not the lawyer to whom the judge extends these courtesies is male. In contrast, women professionals must work twice as hard and adhere strictly to every protocol because they are not as well known or trusted by the judge.^[14]

This observation is undoubtedly true: I am aware of my own tendency to accept more readily the word of someone I know. Much of the day to day management depends on trust: requests for time extensions, adjournments, estimates of trial duration, requests for access to documents etcetera. While most judges are men, women will stand in a less advantaged position than many men.

It can of course be worse than this: women advocates can suffer humiliation of a similar kind. As the Judicial Council of California recognised:

One of the most profound effects of gender-biased judicial conduct is how it undermines the credibility of women. Judicial conduct that is biased reinforces the public's own biases and stereotypes.^[15]

The Californian experience of a woman attorney of South-East Asian ancestry illustrates this well. The attorney said:

A few weeks ago, I had to try a case in front of one of our judges. The judge asked that counsellors state our name for the record. My opponent stated his name, and then stated mine. The judge looked down at me from the bench, and in open court, and asked me, 'Are you an attorney?' I said, 'Yes, sir'. He then asked, 'Are you licensed to practice here?' I said, 'Yes, sir'. He continued to ask, 'Will you provide me with your bar number after the trial?' I said, 'Certainly sir'.

All of this questioning of my credentials was done in open court in front of my client and my opponent, when it should have been done in a more discreet manner out of the hearing of my client and my opponent.

Since the judge did not know me, it was reasonable for him to ascertain my authority. However, questioning my credentials in open court in front of my client and opponent could well undermine my credibility and thus damage my client's interest.^[16]

These humiliations are not confined to women in California. In New South Wales, Keys Young reported:

While many lawyers indicated they had received nothing but courtesy from Judicial officers, several commented that they had faced problematic attitudes with certain members of the bench, although it was often subtle:

When I was new at the Bar, I did a criminal case. At the end of the Crown case I made a no case answer submission to the judge. He rejected the application and said it would go to the jury and he said he wanted to hear Miss [] address the jury. This illustrates a lot of women's grievances in the courts. You have to be so much better. You are constantly on show. When a woman walks into a court everyone is conscious that she is a woman and everyone is ready to judge the performance. (Female barrister).

For women there is all this unwritten unsaid stuff. What's your title? Ms? Miss? Oh it's Ms is it? It sets the tenor of it – he's displaying an attitude and expressing it in subtle ways. Male lawyers will never have to deal with that. (Female Tribunal Member).^[17]

Sometimes the bias is less overt. Today I would have thought most judges are aware that their gender bias must not be blatant, but there is no evidence that it has quit the courtroom altogether.

The stereotyping of individuals, whether on the basis of gender, race, or some other immaterial criterion, can dramatically diminish the standing of that individual in the eyes of the court. It can also have a significant effect on the outcome of a case. There is evidence that gender bias may also operate against women witnesses and litigants. For example, the evidence of women is sometimes trivialised on account of gender stereotyping. I have seen senior male counsel attempt to belittle an older woman proprietor of a business largely on the basis of her sex. Women litigants and witnesses have complained that their cases are not taken seriously. The Australian Law Reform Commission reported:

In submissions to [it], women repeatedly claim[ed] that they lack credibility in the courtroom. Their experiences ranged from being humiliated or patronised to being disbelieved or simply not understood.^[18]

This conduct was seen to relate to their gender. If this is correct, then women’s rights are seriously undermined in the very place that they should be maintained.

How can the position be improved? Studies at home and abroad support the view that appointing more female judges is an effective way to improve the legal environment for women. The Taskforce on Gender Bias, initiated by the Chief Justice of Western Australia, reported in June 1994 that:

[T]he greater participation of women within the judiciary is an appropriate and effective way to improve the legal environment for women.^[19]

There is no doubt in my mind that other outsiders too suffer a stereotyping which diminishes their standing in the courtroom in the same way as it diminishes women. It seems to me that a more diverse judiciary would improve the environment for them too.

It is not only court room management that would be improved. Decision-making might be better too. A number of legal scholars have propounded the view that women judges may bring a different "perspective" to decision-making than men. In our society, assigned gender roles are an important facet of every day life. As a consequence, large numbers of women experience life differently from men. That experience shapes those women's "perspective" – the way in which they see and understand the world.

There is now a large body of legal scholarship that documents the gender bias of the law.^[20] In their book, “The Hidden Gender of Law”, Graycar and Morgan give some poignant examples.^[21] It is, I think, reasonable to assume that in cases where a law neutral on its face nonetheless has a particular disadvantageous effect on women, a woman judge is likely to be more alive to that effect. Until the balance changes women in the courts are going to be marginalised, whether as litigant or witness or advocate.

Of course one must tread carefully in this area of discourse. Apart from sentencing, there is no hard evidence that judicial decision-making is any different when the decision-makers are women.^[22] The well-known feminist legal scholar, Carrie Menkel-Meadow, concluded:

Early studies of women judges have failed to uncover any real differences in judging, except that women were more likely than men to sentence female offenders to prison. … Scholars have speculated that women may be more likely to take account of a wider variety of ‘contextual factors’ in making a decision, tempering justice with mercy.^[23]

Nonetheless, although there is a lack of hard evidence (except perhaps in sentencing), I do consider that women bring relevantly different perspectives to bear on the adjudicative process.

There are few scholars, judges, or lawyers who would today claim that judges do not make the law to some degree. In their everyday work, judges exercise discretions that the law confers upon them in reaching decisions. Many exercises of discretion involve judgments about necessity and appropriateness, and inevitably involve the judge’s own perceptions of how the world works. I agree with Canadian Judge, Rosalie Abella, also Chair of the Ontario Law Reform Commission, that: “Every decision maker who walks into a courtroom to hear a case is armed not only with relevant legal texts, but with a set of values, experiences and assumptions that are thoroughly embedded”.^[24]

Perhaps one sees this best in fact finding: this is not generally an activity that interests scholars, but it is the area where a judge is most left to his or her own strategies. Fact finding is not readily overturned on appeal. In finding the facts, the judge draws on her or his own experience of what is probable and who is credible. I believed the older woman proprietor probably because she reminded me of my hardworking aunts who had conducted a business very like hers and encountered virtually the same problems. In making the law, exercising discretions, applying the law to the facts, or simply finding the facts, judges endorse values that they believe the law endorses too. Sometimes, in identifying those values and in according them primacy over other values, the perspective of a judge is influenced by her or his experience of life.^[25]

In sum, women encounter difficulties on account of their sex in almost everything part they may play in the courtroom. Things are getting better: they are not yet good.

What is of growing concern is women’s intolerance of other women’s life choices. It undermines the movement for equality when women indict other women for their different strategies on life, for their contrasting choices with respect to relationships and whether to have children and, if so, when. Women who are exercising their right to choose whether to work, whether to marry and whether to be a mother seem to now be at risk of being criticised by another woman who has done things differently. Lack of solidarity in respecting women’s differences among today’s myriad of options is fracturing the progress and advances made in furthering women’s rights. Women need to stop judging each other and start putting pressure on law firms and the Bar to become more female/family-friendly. As Amy Cooper wrote in “There Goes the Sisterhood”, “[I]t’s as though the only way to be convinced ours is the right path is to denounce someone else’s”.^[9]

In her keynote speech to the Women in the Legal Profession Forum in October 2002, Christine Lagarde, Europe’s fifth ranking businesswoman noted:

Women pretend they are friends to each other, but in fact they are horrible to one another.

Lagarde referred to Phyllis Chesler’s book “Women’s Inhumanity to Women” in which the desire of some women, including feminists, to sabotage and undermine exceptional women is explored.^[10]

Such observations involving the internal fracturing of women in the law, and women in society in general, serves to promote the existence of discrimination against women and systemic gender bias by lessening the strength of our collective voices. Justice Catherine Branson said in a conversation with Christopher Sexton, a Sydney-based lawyer and biographer:

We…have to work toward a situation where there are no artificial restrictions placed on anyone without proper justification and where society allows individuals the freedom to live responsible and fulfilling lives irrespective of gender.^[11]

In order to achieve this goal, we must work together. After exploring some examples of gender bias in the legal profession, Justice Gaudron stated in her speech to the Women Lawyers Association of New South Wales last year:

There is a more worrying conclusion to which I am driven. It is this: women simply cannot rely either on their legal talent or on the good will of enlightened men in the profession – and there are some – to achieve the measure of success that they deserve and that the interests of justice demand. If we are to achieve the measure of success we deserve and make our own distinctive contribution to the law and justice, we must do it by ourselves. We must assert our difference.^[12]

Conclusion

The legal profession as it currently stands remains inflexible and insensitive to the lives of its practitioners. Organisations such as the Victorian Women Lawyers have done much to make recommendations to influence and encourage incremental change in the profession to attain equal opportunity for women. However, even they are aware that they cannot drive the cultural change alone.^[13] Professional bodies that gather information, disseminate it, provide recommendations and educate the profession are an essential tool in overcoming gender-based barriers and serve an important purpose, but the attack requires a more diverse approach.

The issues relating to opportunity for women in the law 20 years ago are different to the issues of today. The formal barriers have been eliminated, but the fundamental problems remain. These are apparent in the courtroom. We have a big challenge ahead in shaping the way forward in order to promote a fairer justice system, where being a woman in court is not an unnatural thing. It is a tough challenge to meet, but the rewards are great.