Legal feminists take on the judiciary
Why is there not more gender diversity at the top of the legal profession? What can be done to nurture and encourage female talent and, more importantly, accommodate women’s needs and perspectives at the highest echelons of the sector? Can you be both a feminist and a judge?
These were some of the questions raised at an event organised by the InterLaw Diversity Forum for LGTB networks on 13 October at Norton Rose HQ, to coincide with the firm’s recent launch of its women’s network.
The event featured a panel of high-profile female lawyers and legal scholars who threaded together various strands of polemic, uniting in the view that systemic barriers must be broken down to afford women an equal chance of rising up the ladder to leadership roles.
Theming the evening’s discussion were the binary interpretations in Feminist Judgments: From Theory to Practice by feminist legal scholars Rosemary Hunter, Clare McGlynn and Erika Rackley. The book presents decisions of the English courts from a feminist perspective.
The cases chosen feature significant decisions across a broad range of areas and are primarily opinions of the Court of Appeal or the House of Lords. The authors write the ’missing’ judgments they feel a feminist judge would have written in more than 20 leading cases in English and Welsh law.
By writing these judgments Feminist Judgments tests feminist knowledge in practice, in decisions in individual cases. In some instances these are written in fictitious appeals, while in others they are written as an additional concurring or dissenting judgment in the original case.
The evening’s debate explored the notion that there cannot be a neutral perspective in legal decision-making and considered the impact that gender may have on the law.
Among the panellists was Supreme Court Justice Baroness Hale, the only female member of the Supreme Court. Hale SCJ, who also wrote a foreword in Feminist Judgments, highlighted notable cases that she had presided over that had brought about a clash of legal values between her co-judges.
One such case was that of ex-ballerina Elaine McDonald’s loss of the right to an overnight carer after being left with reduced mobility following a stroke. Hale SCJ argued that women have a different view on what human dignity entails than men.
She also stressed the need for a diversification of legal minds at the apex of law, admitting that she often “sticks out like a sore thumb” and that she is “not feminist enough”.
“It’s just the eccentricities of men that are rubbing up against one another and we need the eccentricities of rather more women as well. We should have a true diversity of minds at the highest level,” she said. “There are still too many systemic barriers to recognising the merit that so many women have. A trickle up to the top is just not going to work.”
Feminist Judgments co-author Hunter admits that it is hard for women to reach the top in law, especially in the judiciary.
“To be considered for a judicial post one has to have reached the top of the legal profession and women are far more likely to leave the profession than men due to a variety of factors,” she says. “Many senior women lawyers find judicial appointments unattractive due to the male-dominated environment of the senior judiciary and the shortage of female role models and supporters.”
“The City has failed to promote or pay women fairly,” argues InterLaw Diversity Forum founder and Norton Rose support lawyer Laura Hodgson. “There are many opportunities for women to succeed and there are a number of inspirational women in the legal profession.
“The profession must now do more to ensure that the number of women entering it have an equal chance of rising up the ladder to leadership roles. The issues for women in professional roles, whether gay or straight, are predominantly the same: pay equality and an equal chance of promotion.”
Readers' comments (4)
Chris K | 26-Oct-2011 2:18 pm
Wait a second here ... all you have to do is show up , do your job , not take breaks to have babies , put in the overtime , take as few sick days as possible , and keep your personal life at home . If you want more than that to rise to the top of any profession then you're asking for privileges , not "equality" .
It never fails to amaze me how we feel the need to tailor professions to suit those engaging in them rather than those engaging in them adapting to the needs of their CHOSEN professions . If women are equals then there's no need to lower the bar (double entendre fully intentional)
It may not go down well with those seeking special treatment but the truth is that women make just as much as men do when all factors are accounted for . What some womens' advocates base their arguments on is the tenuous (at best) presumption that women are discriminated against by institutional discrimination . This simply doesn't stand up to any close scrutiny . The fact is that men only seem to make more money for the same time spent on the job . What really happens is that women often choose to take breaks to raise children and otherwise focus their lives around the family rather than the career . That's fine of course but if you're not at work for six months you're not going to get promoted either . That's not unfair . Unfair would be getting promoted simply because some ideologue believes it's discriminatory if you're not getting the same pay as somebody who worked significantly more than you did .
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Chris K | 26-Oct-2011 2:24 pm
Oh , and incidentally , to answer the question posed in the sub-heading , no , you can't be a feminist and a judge . That's precisely the opposite of what we've tried to create in the Western legal philosophy .
Or , think of it more like this : Can a racist be a judge ? That it happens is not the same as condoning it . A feminist is , by definition , a person with a built-in bias . You can be a feminist at home I suppose but I doubt you'll be able to leave it there when it's time to go to work . A few hundred years of racist judges should act as ample proof but I guess if the cause is PC , bias is welcome now ?
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Anonymous | 27-Feb-2013 11:07 am
Chris K - I couldn't agree more. Its the constant outrage by feminists that the bar needs to be lowered for women which does my head in. We're made to feel like all men are still viciously sexist and that "the system" is out to ruin a woman's chances of getting to the top. It is not the system's fault that women give birth and require time out. A driven woman of equal aptitude to a man, who puts kids on the back burner can absolutely rise to the same heights as the man in question. Discrimination legislation enforces.
The law students from my year at Uni that went into the best jobs were all mostly girls, some of whom I could easily see running departments within ten years. If they happen to settle down and have kids, then that's their choice and we can't blame the firm for not making them partner if some guy happens to be a better candidate by virtue of his higher level of commitment.
Complaining about lack of diversity in this manner is only ever going to result in artificial tampering with the system to give women an "easier" chance of getting to the top... e.g. setting quatos for boards. If you're a woman who doesn't like the male to female ratio on a board or in the judiciary then do something about it, work hard and apply.
By giving women a "leg up" (which these feminists are effectively asking for by saying something needs to be done now), we would essentially be admitting that woman aren't equal by default because they require extra privileges to scale the same heights as men. That surely is the opposite of what these outspoken women wish to achieve. Positive discrimination is not equal treatment. I imagine most women would like to get to where they want to be on their own merits as opposed to being given preferential treatment because of the fact they are women.
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Anon | 27-Feb-2013 12:00 pm
Feminism is defined as "the advocacy of women’s rights on the ground of the equality of the sexes." Chris K - how is that concept antithetical to the judiciary in any way? Every single judge must be a feminist - at work and at home - otherwise there's something very, very wrong with our legal system.
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