Richards, Alexandra --- "Women in the Legal Profession: an Overview" [2003] ALRCRefJl 15; (2003) 83 Australian Law Reform Commission Reform Journal 14

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Reform Issue 83 Spring 2003

This article appeared on pages 14 – 18 of the original journal.

Women in the legal profession: An overview

By Alexandra Richards QC*

In Australia, women first became eligible to practise law in Victoria in 1903 by the passage of the strangely titled Women’s Disabilities Removal Act 1903 (Vic). This Act enabled Flos Greig to be admitted to practise as Australia’s first woman lawyer. The other states followed suit over the next 20 years: Legal Practitioners Act 1904 (Tas), Legal Practitioners Act 1905 (Qld), Female Law Practitioners Act 1911 (SA), The Women’s Legal Status Act 1918 (NSW) and the Women’s Legal Status Act 1923 (WA).

The history of women’s admission to practise as lawyers both in Australia and overseas (in France, the legal profession was declared open to women on the same terms as men in 1900 and, in England, 1921) parallels the history of the movement for women’s suffrage in the late 19th and early 20th centuries.

As women successively became enfranchised throughout the western world, those behind the suffragette movement considered that equality for women would now be assured. But the battle was just beginning. With the events surrounding the Second World War there was a reversal both in government and social policy. Women were silenced and became silent. It wasn’t until some 50 years after women were enfranchised in most western countries that the feminist movement resurged, heralded by publications such as The Feminine Mystique in 1963, where Betty Friedan contended that deeply entrenched attitudes and social barriers imprisoned women, and called for expanded career opportunities, equality with men and the destruction of the myth of the happy housewife. Women burned their bras while others divested themselves of their aprons and/or their husbands.

Legislative recognition of the feminist movement came through the passage of sex discrimination laws that, in the main, reflected and adopted the principles defining discrimination against women contained in the Convention on the Elimination on All Forms of Discrimination Against Women (CEDAW) adopted in 1979 by the UN General Assembly. In Australia, we saw the enactment of the Sex Discrimination Act 1984 (Cth) and the Affirmative Action Act 1986 (Cth). The States and Territories had enacted their own corresponding laws commencing with the Sex Discrimination Act 1975 (SA).

But almost 100 years after women first were admitted to practise, 30 years after the resurgence of the feminist movement and some 15 years after the passage of sex discrimination legislation, the statistical profile of women practising in the law had altered little. In Australia by the mid-1990s women had been graduating from law schools in equal numbers to men for two decades and in most states women had consistently graduated in numbers in excess of men for close to a decade. The statistics were similar in the United States, Canada and New Zealand.

The same statistics disclosed that despite women’s increasing prominence as law graduates and articled clerks there was not a corresponding increase in the number of positions held by women in the profession generally and, more importantly, that women’s appointments to senior positions in the law not only did not correspond, but were alarmingly low. This experience was neither unique to Australia nor to the law. The passage of equal opportunity legislation, although important in the elimination of direct and certain indirect discrimination, had done little where systemic issues were concerned and most notably within the male strongholds of society and the key decision making areas such as the law and politics.

Emerging studies, such as the Keys Young Research on Gender Bias and Women Working in the Legal Profession: Report (prepared by Keys Young for the NSW Department for Women, March 1995) suggested that a matrix of discriminatory barriers forming part of the professional culture made it difficult for women to participate fully in the work, aspirations, rewards and responsibilities of the legal profession. Thus, whereas it was once commonly thought that it was all a matter of time, it was becoming clear that the so-called ‘trickle up’ theory was not working.

Women lawyers associations

In response to a growing acknowledgment amongst women lawyers that the ‘trickle up’ effect, without more, would not redress the imbalance, the mid-1990s saw the emergence and re-emergence of the women lawyers associations as activists and vehicles for the advancement of women in the legal profession.

At the launch of Australian Women Lawyers on 19 September 1997, its patron, Justice Mary Gaudron, in answering the question she posed ‘Why a women lawyers association?’ said:

‘It is, I think, a tribute to the women’s movement, generally, and to the growing understanding that equality is a complex issue that membership of a women lawyers association or even, participation in the activities of those associations is now regarded as professionally acceptable. It was not always so. Regrettably, it is not universally so even now.

‘Certainly, 30 years ago in New South Wales, many of the women then entering practice rejected membership of the Women Lawyers’ Association saying, ‘I’m a lawyer not a woman lawyer and I have no intention of being identified as such.’ It was an attitude born of the belief that I then shared, namely, that once the doors were open, women would prove that they were every bit as good, and certainly no different from their male counterparts. Therein, was an insidious untruth the effects of which are with us still. The truth is that, in some respects, we are the same but in others we are different. And when we admit that difference, when we assert our right to be different, we are going to be significantly better lawyers. Moreover, the legal profession is going to be a better profession and the interests of justice are going to be much better served.’

The work of the women lawyer associations targeted hurdles leading to the high attrition rates of women lawyers, and consequent discontinued participation in the law, through to its more senior ranks. Focus was placed on the removal or dilution of the more obvious obstacles to women’s continued participation in the law, such as the establishment of child care facilities and committees, (in some States) the introduction of parental leave, subsidisation of chambers, amendments to professional codes of ethics to incorporate rules prohibiting sexual harassment, the discouragement of sexual criticism and excessive scrutiny, the establishment of complaints-handling procedures, the establishment of protocols for court etiquette, the provision of mentoring systems, the establishment of flexible work practices, and the provision of educative and support networks.

The empirical data

The women lawyer associations have also been responsible directly or indirectly for the gathering and collating of the empirical data necessary to establish and prove that there exist discriminatory practices and phenomena (albeit mostly unconscious or unintended) inherent in the legal profession and which operate as barriers to women’s continued and effective participation in the law. The gathering of such empirical data was necessary as the mere assertion of discriminatory work practices etc, despite the growing anecdotal evidence, was oft met with disbelief or flat denial.

A plethora of information and studies, such as the Equality of Opportunity for Women at the Victorian Bar report, commissioned and published by the Victorian Bar Council in 1998; Herron, Woodger and Beaton Facing the Future: Gender, Employment and Best Practice Issues for Law Firms (Victoria Law Foundation, 1996); NSW Department for Women and NSW Attorney-General’s Department, Gender Bias and the Law: Women Working in the Legal Profession: Report of the Implementation Committee (1996); and Taking Up the Challenge—Women in the Legal Profession Report, commissioned by Victorian Women Lawyers in 1999, highlighted these formal and informal hurdles to active and effective participation. They noted the low percentages of women in the senior ranks as partners in law firms, members of the Bar or of the Bench, the payment of lower salaries for purportedly the same or similar work and the allocation of work according to perceptions of ‘female’ or ‘male’ attributes.

In her speech delivered to NSW Women Lawyers Association on 15 October 1997, Justice Catherine Branson said:

‘I have a fear, however, that a significant problem does arise because, as women in our profession, we are made to feel that we are outsiders—not of the mainstream. Those few women who do achieve prominence in the law provide no real challenge to this notion—we are easily categorised as exceptions; we do not exist in sufficient numbers to challenge stereotypes.

There are, of course, other problems. Justice Gaudron, in the passage from her recent speech from which I have quoted, identified some of them. Others, I expect flow from what has been described as sex based stereotyping of traits. That is, that men are generally perceived as naturally possessing the competency cluster of traits—strength, toughness, assertion, responsibility, authoritativeness, credibility, whilst women are seen as naturally possessing the nurturing cluster—caring, vulnerability, passivity, indecisiveness. That is, men are assumed to be credible and competent, (ie, likely to make good lawyers) until they demonstrated otherwise; women are seen as lacking in assertiveness and credibility, (ie, unlikely to make good lawyers) until they demonstrate otherwise. Thus, even when women remain in the profession, there is a tendency for them to be easily siphoned off into supportive, back-room roles whilst their male colleagues are encouraged into more prominent roles.’

With a view to stemming systemic discriminatory practices based on stereotypical assumptions, the women lawyer associations advocated the adoption of transparent selection criteria in the making of appointments. So, for example, Australian Women Lawyers in its Briefing Paper to the Hon Daryl Williams AM QC MP: Women in the Legal Profession, 5 May 1998 stated:

‘The effects of such assumptions include: women not being selected, or being less likely to be selected for the sort of work (e.g. direct contact with clients, highly remunerative areas of work) which enhances young lawyers’ prospects for promotion; assigning different values to different areas of work (e.g. regarding family law as less important than mergers and acquisitions); choosing people for various tasks because of their similarity to the sort of person who has previously undertaken such tasks or because of assumptions about characteristics pertaining to a person’s sex determining whether they would be suited to a particular area of practice (e.g. family law is traditionally seen as an area in which women practise, while business related law is seen as a more traditionally male area).

In other words, in choosing who is best for a particular task, or what qualities are required for a particular task, the criteria are often not defined, or are loosely defined by use of terms such as “merit” or “best person for the job”. Choices are made which are based on assumptions, inherited values and an attempt to find the same sort of person who has previously done the same job well.’¹

The more informal barriers to women’s effective participation in the law such as those adumbrated above are, for obvious reasons, difficult to prove when and where occurring and thus less easy to tackle and eradicate. A rare but stark example of stereotypical assumptions operating in practice may be seen in the results of the Equality of Opportunity For Women at the Victorian Bar report which, in part, dealt with the results of a survey conducted in 1998 of Victorian court appearances. The report confirmed that gendered briefing practices existed, summarising them as follows:

• A higher proportion of men than of women on the Bar Roll appeared in the courts and tribunal studied during the data collection period, and this disparity was not simply attributable to the relative seniority of female and male barristers;

• Male barristers appeared to have greater opportunities for junior work than did female barristers;

• Female barristers made 13.6 per cent of total recorded appearances, but this proportion varied considerably according to length of hearing, court, area of law and type of hearing;

• Female barristers made a higher proportion of appearances in cases of shorter duration and in the Family Court, and a lower proportion of appearances in the trial division of the Supreme Court and in commercial and personal injuries cases. However, the case sample indicated a significantly higher volume of work available in the commercial and personal injuries areas than in family law;

• A limited amount of prosecution work offered virtually the only opportunity for women barristers to gain criminal trial experience, and they were also largely excluded from civil jury trials;

• Women barristers were less likely to receive multiple briefs;

• There was a difference between private and public sector briefing patterns, but also a difference between public sector agencies in their preparedness to brief women barristers.²

With a view to redressing these discriminatory briefing practices, the report set forth various recommendations, which have been the subject of a working party established for that purpose by the Victorian Bar Council over the past five years. In 2003, the Victorian Bar’s Equality Before the Law Committee collated the results of a further survey of court appearances conducted by the courts over certain periods in 2001 and 2002 with a view to ascertaining whether the adoption of the recommendations and the work of the working party had been effective. According to the then Chairman of the Victorian Bar Council, Jack Rush QC, the results demonstrated that not only had gendered briefing practices not been redressed but indeed seemed to have worsened.³

However, despite such statistics, all is not doom and gloom on the legal landscape for women. It is the case that since the resurgence of the women lawyer associations, the number of appointments of women to the Bench in state and territory courts, particularly the District and Local Courts, has escalated (whether through the application of affirmative action principles or those of ‘merit’). In response to the Equality Before the Law Survey report the Victorian Attorney-General, Mr Rob Hulls MP, has announced that law firms acting for state government agencies will have to adopt equal opportunity principles when allocating work to barristers. It is likely that other States and Territories will follow.

Women’s experience in the law demonstrates, however, that although the more formal barriers to women’s participation in the legal profession are comparatively readily addressed with a modicum of goodwill and effort, the more informal barriers are less capable of detection and less easily eliminated. But how is that to be achieved in the face of these informal barriers? It is the writer’s opinion that the informal barriers will only be substantially removed when the numbers of women practising in the law are significant. The efforts to date have in the main removed the formal barriers. It is now incumbent on the legal profession to actively recruit both to the ranks of solicitors and barristers and within the public and private domain women lawyers in significant numbers at all levels of the profession. The use of the American noun ‘normalcy’ might aptly describe the safe haven where, in future, the relevant differences and distinctions can dissolve and, in the words of Justice Branson above, there exist sufficient numbers to challenge the stereotypes.

* Alexandra Richards QC is a Victorian barrister. She was President of Australian Women Lawyers from 1997 to 2000.

Endnotes

1. See also M Thornton, ‘Affirmative Action, Merit and the Liberal State’, (1985) 2(2) Australian Journal of Law and Society, 30: ‘the higher one goes in the hierarchy of jobs, the more significant is the notion of merit. Paradoxically, merit criteria become correspondingly more elusive so that the evaluative process becomes less visible.’

2. R Hunter, Equality of Opportunity for Women at the Victorian Bar: a Report to the Victorian Bar Council, Melbourne, Victorian Bar Council, 1998, 61.

3. The Australian Financial Review, 22 August 2003, 5.