Gender bias is alive and well
By Anthony P. Capozzi
President, State Bar of California
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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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