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
thats been done, theres still a tremendous problem.
In a recent address to the Queens 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 doesnt 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 womens work, and myths and misconceptions about the social and economic
realities of womens and mens lives.
Central to the decades-long movement to end gender bias, she
explains, is womens 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 womens resumes, writings,
opinions and actions frequently generate less respect than mens, or at
the least are perceived differently.
Schafran fears that over the last 20 years, the level of credibility
has not changed much. Although weve made progress, she says, the
problems run so deep that it doesnt 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 were
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 its against the law. Its
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 womens issues
that also suffer the effects of gender bias, including bankruptcy, Social Security and
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 womans wish to die, as
communicated by family and friends, is honored less often than a mans wish to die.
Its not having substantive factual information about the
social and economic realities of mens and womens 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. Theres no question there has been real change.