Gender Equality in the Courts: A Preliminary Look

Gender Equality in the Courts: A Preliminary Look

Sarah Josephson and Teresa Carns

Josephson, Sarah, and Carns, Teresa W. (Fall 1994). "Gender Equality in the Courts: A Preliminary Look." Alaska Justice Forum 11(3): 3-5. Now you see it, now you don't - gender bias problems appear obvious to some and nonexistent to others. This was a primary finding of a series of surveys recently conducted by the Joint State-Federal Courts Gender Equality Task Force. Practicing attorneys from Anchorage, Fairbanks, Juneau, and Ketchikan commented on gender bias issues in their communities and suggested solutions. The findings, in combination with earlier surveys and with Anchorage surveys of non-attorneys who work in the courts, present an overall picture of gender equality issues in Alaska state courts.

Now you see it, now you don't - gender bias problems appear obvious to some and nonexistent to others. This was a primary finding of a series of surveys recently conducted by the Joint State-Federal Courts Gender Equality Task Force. Practicing attorneys from Anchorage, Fairbanks, Juneau and Ketchikan commented on gender bias issues in their communities and suggested solutions. The findings, in combination with earlier surveys by the group and with Anchorage surveys of non-attorneys who work in the courts, present an overall picture of gender equality issues. (A similar survey of federal courts and attorneys who practice in them is also being conducted, but its results are not presented here.) Two of the surveys administered by the task force also analyzed work choices by gender, to see whether men and women differed in their reasons for working in certain environments.

Chief Judge Holland of the U.S. District Court and Chief Justice Moore of the Alaska Supreme Court formed the task force in October 1993 to identify issues of gender bias and recommend solutions. The task force has established subcommittees which include other judges, attorneys, staff people and interested citizens throughout the state. The task force defines gender bias as any action or attitude based on preconceived notions about the nature, roles, and abilities of men and women rather than upon evaluations of individuals.

General Results

Almost equal numbers of men and women responded to the surveys, although the proportions varied greatly by community. (See Table 1.) The initial round of surveys in Ketchikan, Juneau and Fairbanks went only to attorneys. Anchorage surveys were sent to in-court clerks, legal assistants, guardians ad litem, and CASA volunteers, as well as to attorneys. (During the next year, the other communities plan to work with non-attorneys who appear in, or use, the courts.)

Table 1. Respondents by City and Sex

The task force surveyed attorneys at the Alaska Bar Convention in Juneau in 1992 and sent additional detailed surveys to lawyers in Anchorage, Ketchikan, Juneau and Fairbanks during 1993 and 1994. Overall, the survey findings showed that far more female attorneys than male attorneys knew of or had experienced gender bias. The surveys uniformly found that biases prevailed more strongly in attorney interactions than during judge-attorney interactions. Respondents also saw gender-related bias in interactions between lawyers or judges and other persons in the courtroom, including jurors, witnesses, security personnel and other court staff.

All surveys included similar questions about experience with, or knowledge of, gender bias. A majority of the female attorneys responding to the three surveys perceived gender bias by judges, lawyers and parties. In contrast, less than half of the men perceived gender bias in any context, including bias against men as defendants or parties in domestic relations cases. The perception of bias was closely related to the gender of respondents and the type of bias observed also appeared closely related. Men mentioned sex-related bias against men (particularly in domestic relations cases) far more often than women mentioned sex-related bias against men. Conversely, women appeared most knowledgeable of, and concerned with, bias against women.

More specific findings supported these preliminary overall results. For example, over twice as many female attorneys as male attorneys in Fairbanks said they had seen judges show gender bias. Nearly all female attorneys had seen gender bias by other attorneys (93%), compared to less than half of the male attorneys (40%). Anchorage percentages closely resembled Fairbanks, with 89 per cent of Anchorage female attorneys seeing gender bias by other attorneys, and 23 per cent of the male attorneys. Over half of the female attorneys in Fairbanks had perceived gender bias by parties, compared to 39 per cent of male attorneys. Thirty-eight per cent of the Anchorage male attorneys and 63 per cent of the Anchorage female attorneys had seen bias from lawyers to parties, witnesses or jurors. Of the Anchorage male attorneys, 27 per cent reported bias from parties, witnesses or jurors toward lawyers; 44 per cent of the Anchorage female attorneys had seen parties, witnesses or jurors show bias to lawyers. Male and female Fairbanks attorneys saw about the same amount of gender bias by witnesses, court staff and jurors, with less than one-third perceiving this type of bias.

The Anchorage survey included non-attorney professionals and volunteers who appear regularly in the courts. Surveys went to guardians ad litem, CASAs (volunteer advocates in children's proceedings), in-court clerks, and legal assistants. Small numbers responded from each group. In the experience of the members of these groups who were in court, gender bias appeared most frequently between lawyers and parties, witnesses or jurors.

Detailed Comments

All survey respondents were asked to explain gender bias they had observed or experienced. In all communities, women cited specific incidents of gender bias. One Juneau woman lawyer wrote that she still encounters the attitude that only men are "real attorneys," and women are second-rate at best. She added that "sexist humor is making a comeback." Most Juneau respondents praised the judges, but one respondent noted that while the judges in Southeast are good, "they're all male. That has to affect their world view and rulings."

Respondents commented that not only attorneys and judges, but litigants in the courts, were subject to gender biases. One said, "Women are at a distinct disadvantage with respect to financial burdens of civil and criminal litigation and when dealing with male-dominated institutions." Another attorney wrote that "parties, especially insurance companies appear to offer women lower settlements."

Respondents to the Anchorage surveys focused on the gender difficulties that seem most pronounced in domestic cases. Some respondents believed that people involved in domestic cases often based decisions on stereotypes. One noted that an assumption is made in some settlement conferences that a woman should receive extra because "women make less money." Another commented that some judges and attorneys believe that female lawyers will do better with domestic cases than will men. Both men and women argued that child custody investigations sometimes appeared to rely on sex-related stereotypes and may favor either the mother or father as a result. (Which gender appeared to be favored was associated with the respondent's own gender.)

Men found gender bias as well. One male attorney stated that "judges seem to fail to recognize a pretty face can hide a malignant heart" and "fail to address attorney misconduct because it is practiced by a woman." A Fairbanks attorney argued that "female judges meet with female lawyers in a bar group designed to advance the position of females, as opposed to males, on the basis of their sex." Another male attorney maintained that "women are the beneficiaries of a bias against men in the criminal system (simple example - a man and a woman own a house - drugs are found in the house - the man is charged, the woman is not - sentencings are far more lenient as to women)." Finally, some men argued that men were disadvantaged in domestic violence and domestic relations cases. One noted, for example, that "Guardians ad litem (GALs) should be appointed that don't see child molester/abuser dads around every corner. A court decision relying on a biased GAL investigation can't be fair."

Another difficulty that survey respondents noted was women who were biased against other women. One attorney wrote that some of the sexism at Tanana Valley Bar Association meetings seemed to come from women lawyers who were copying the male chauvinism against their own sex in order to be "one of the boys." A female Juneau lawyer wrote "I really hate it when I am referred to in court by my first name and male lawyers are referred to as 'Mr. _____.' (This has not been by judges but by other counsel including women lawyers!)"

Many women commented that, while a male lawyer might be described as a "zealous advocate," a female attorney behaving similarly was described as being "emotionally involved in this case." Another frequent occurrence noted by women was the use of gender-biased language, such as using "gentlemen" to include a woman. Others noted that attorneys and others refer to women as "sweetie" or "honey." One woman said, "A judge in state court once asked my client where his attorney was when I was sitting right next to him." She added that "In federal bankruptcy court, it is clear that you get a better result if you are one of the 'old boys.' For example, certain bankruptcy judges will let male attorneys address the motions/petitions, etc. first regardless of whose motion it is."

The most frequently repeated complaint among all the surveys focused on the Tanana Valley Bar Association (TVBA) in Fairbanks. About 23 per cent of the Fairbanks respondents (male and female answers combined) commented about TVBA sexist attitudes and humor. No other professional group in the four communities came under such intense scrutiny.

Gender-Related Differences in Work Choices

The surveys also questioned attorneys in Fairbanks and Juneau about factors influencing their choices of jobs. Respondents ranked the importance of independence, income, work environment, lack of other opportunities, and other variables in their choice of jobs. The analysis compared choices by men and women, taking into account years of practice (1 to 6 years, 7 to 17 years, 18 years and over) and type of work (private practice or government).

Women and men chose the same four factors as most important for their job choices, but weighted some of them differently. Over half the men rated independence as the most important reason for working where they did. The majority of women (55%) named subject area and work environment as the most important factors. An equal percentage (17%) of men and women chose income as important, with this factor ranking second in importance for both. Men listed work environment and subject area as other primary reasons for choosing to work where they did. For women, independence (tied with income) was a fourth important reason for their work choices.

Women chose hours, benefits, flexible time, and lack of other opportunities as a second set of factors in making work choices. Men also noted benefits and flexible time as important. Relatively few men (8%) said that lack of other opportunities was important; an equal percentage of men said that opportunity to advance was an important reason for choosing the job. Only one woman (3%) chose opportunity to advance as one of her top three reasons for taking her job, as compared to six women (20%) who said they worked in a particular job because of lack of other opportunities.

Some of the findings from the Fairbanks survey differ from the Juneau survey. Smaller numbers of women in Juneau named benefits, opportunity to advance, hours and work assignments as the most important factors in their job choices. Some Fairbanks women saw benefits, hours, and flexible time as important. Interestingly, 20 per cent of them saw lack of other opportunities as a reason for working where they did, in contrast to 23 per cent of Juneau women who saw opportunity to advance as important in their job choice. Although the numbers of survey respondents are small in both groups, this suggests that some women in Juneau see their jobs as offering more chance to move ahead than do some women in Fairbanks. The somewhat different proportions of attorneys in each "years of practice" grouping also might contribute to these variations, in addition to the difference in location and actual job opportunities.

Addressing the Issues

The Gender Equality Task Force plans to write recommendations for changes in the courts and legal profession during the next several months. Possible suggestions include promoting the use of gender-neutral language, creating or adapting training programs and materials for judges, attorneys and others, and improving procedures to encourage fairness for all parties. By next fall the task force plans to have designed specific projects addressing gender equality that law firms, nonprofits, agencies or individuals can sponsor.

 

Sarah Josephson worked as an extern with the Alaska Judicial Council during summer 1994. She is currently a second-year law student at Catholic University. Teresa Carns is the senior staff associate with the Judicial Council.