California Bar Journal
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Gender bias
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gender bias remains rampant, ranging from decisions in domestic violence cases to right-to-die issues.

“Activity does not equal progress,” she says. “For all that’s been done, there’s still a tremendous problem.”

In a recent address to the Queen’s Bench in San Francisco, Schafran credited California with leading the way on many fronts, beginning with a 1981 course for federal judges.

Almost 20 years later, she said, “gender bias in the courts” is a legal concept, institutionalized in the law. Judges and lawyers can be sanctioned under codes of judicial conduct which expressly prohibit gender bias, and judicial rulings can be overturned when gender bias undermines due process.

But enacting and amending rules, laws and judicial canons do not necessarily translate into real accomplishment, Schafran says. “A law means nothing if it doesn’t change the landscape,” she says.

She defines gender bias as a three-part issue: stereotyped thinking about the nature and roles of men and women, how society values women and what is perceived as women’s work, and myths and misconceptions about the social and economic realities of women’s and men’s lives.

Central to the decades-long movement to end gender bias, she explains, is women’s lack of credibility — the notion of who is credible, who is important and who is an individual of consequence. She cites a variety of sociological studies showing that women’s resumes, writings,   opinions and actions frequently generate less respect than men’s, or at the least are perceived differently.

Schafran fears that over the last 20 years, the level of credibility has not changed much. “Although we’ve made progress,” she says, “the problems run so deep that it doesn’t surprise me that there is still a question of who has authority, who do we listen to, who is important.”

Those questions are reflected constantly in courtrooms, she says, despite heightened awareness of many issues that traditionally involve women. For example, sex discrimination cases, which originally were brought 30 years ago to win equality for women in the job market, have moved into a second generation of cases. “But we’re still in the second generation and may never get out of it,” Schafran says. “Sexual harassment continues to go on as if nobody ever knew it’s against the law. It’s horrifying to read these cases.”

Domestic violence is another area she cites as benefitting from increased public awareness, yet one where judges continue to make bad decisions. “There is still a large cadre of judges who do not appreciate the impact of domestic violence on children,” Schafran says. “Some-times we get wonderful decisions in these cases, but by the same token this is an issue that is a constant problem across the country.”

She cites other, less traditional “women’s issues” that also suffer the effects of gender bias, including bankruptcy, Social Security and right-to-die cases.

The impact of bankruptcy on child support, alimony and equitable distribution as well as questions of what debts are dischargeable can be affected by gender bias. Likewise, bias creeps into disability hearings where men and women seeking identical disability payments are perceived differently. Studies by physicians of right-to-die cases show that without an advance directive, a woman’s wish to die, as communicated by family and friends, is honored less often than a man’s wish to die.

“It’s not having substantive factual information about the social and economic realities of men’s and women’s lives that can create problems,” she explains.

Although Schafran believes much remains to be accomplished, she says judicial education continues to produce results. A course on understanding sexual violence, presented to a group of Nebraska judges, prompted immediate changes in the way the judges deal with both victims and offenders. “When we give judges the opportunity to see how information  relates to the work they do and how to incorporate this knowledge into the court process, we can make real progress,” Schafran said. “There’s no question there has been real change.”