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Gender bias is alive and well

By Anthony P. Capozzi
President, State Bar of California

Anthony Capozzi
Anthony Capozzi

In 1876, the Wisconsin statute for admission of attorneys required an examination to the satisfaction of a judge and then he could be licensed by order of the court. Stats., Ch. 119, §§ 31, 32, 33. (Emphasis added.) The Wisconsin Supreme Court in In re Lavinia Goodell, 39 Wis. 232 (1876), admitted that the statute only applied to males; however, under the rules of construction, it could necessarily extend the terms of the statute to include females, as long as such construction was not inconsistent with the legislative intent.

The Wisconsin high court felt that the application of the permissive rule of construction would not aid the legislative intention, but rather openly defy it.

It is hard to believe the sentiments of the Wisconsin court could be taken seriously in today’s world — until, that is, a recent incident regarding a young woman civil practitioner who was eight months pregnant while (God forbid!) making a court appearance.

The Wisconsin court said that it would not stultify the court by holding that the legislature intended to bring about a sweeping revolution of social order, by adopting an innocent rule of statutory construction. (I had to look up the meaning of “stultify” since I wasn’t sure it meant “to cause to appear stupid.”) 

The court thought the common law was wise to exclude women from the profession of law and felt that the law of nature destines and qualifies the female sex for the bearing and nurture of children and for the custody and maintenance of the home. Any voluntary departure to the profession of law would be treason against the life-long calling of their sex.

The court went on to state, in a rather stultifying manner, that it’s not the saints of the world who chiefly give employment to our profession. The legal profession has to deal with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene to human life. This is bad enough for men, said the court, but it would be revolting to the female sense of innocence and the sanctity of their sex that they should be permitted to mix professionally in all the nastiness of the world which finds its way into the courts of justice.

Compare the language in the Wisconsin case to what happened to Pamela M. Roberson, a young civil practitioner, in an Orange County court appearance in April. The transcript of the proceeding begins with the judge asking Ms. Roberson if she is an attorney and asking for her business card to substantiate that she is a lawyer.

The next question from the court, which I quote: “Are you ready to have your baby? Is it momentarily?” 

Undaunted, the court then made the statement, “Well, your appearance, Ms. Roberson, leaves a lot to be desired, as far as your clothing is concerned.”

I would not have known how to respond. Ms. Roberson handled the situation professionally by explaining that her wardrobe was limited since she was 8-1/2 months pregnant. She also said she didn’t appreciate the court’s comments about her appearance.

This episode takes us back to 1876 when Lavinia Goodell was attempting to become a member of our learned profession. Yes, gender bias still exists in the legal profession and in the courts. Lawyers often complain about having to take MCLE courses and especially a course on gender bias. This incident is a clear indication that more needs to be done in the area of gender bias and something should be done with this judge.

Clearly, women have made great strides in the legal profession. Two women sit on the highest court in our nation. Three women sit on the California Supreme Court and a number of women on our state Courts of Appeal and superior courts — all of whom have served with distinction.

In California, one out of every five lawyers over 55 years of age is female but close to half of the lawyers under 35 are women. Male lawyers still out-earn their female colleagues. Approximately 49 percent of entering law students are women but they continue to be underrepresented in leadership and management positions.

Only 5 percent of managing partners at large firms are women. The glass ceiling is a business problem that results in high attrition rates for women, costing the firms approximately 150 percent of an employee’s salary to recruit and retain a replacement.

Our State Bar Committee on Women in the Law presents seminar programs on how to become a judge in an attempt to demystify the process; meetings on developing strategies on retention in the private sector; and, this month, at the State Bar Spring Leadership Forum, programs that develop leadership and mentoring skills for women.

We at the State Bar are doing what we can to improve the lot of women in the legal profession — but in light of Ms. Roberson’s unfortunate experience, how far has the status of women in our profession really advanced?

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