Difference Doesn’t Cut It: Gender roles in the legal profession

Women are taking over the world. We are reclaiming our power from the white, conservative males actively scheming to confine the female subject to mundane domesticity of the familial household. These men start shaking in their patent, business shoes when confronted with a woman who commands professional respect beyond a receptionist, paralegal or clerical role. Standing there, in all the glory of her Elle-Woods inspired, rich-pink suit, she is a threat to the domestically-based gender roles institutionalized within the legal profession. Gender, at its essence, is nothing more than a product of the repeated ‘stylization of the body’ (Butler 2006). The legal workplace is renowned for its cut-throat, boys-club culture, infused with alcohol and deceit. Quintessential masculinity lingers as a rich scent of Tom Ford aftershave drifting through the air of frosted glass meeting rooms. Corner offices are dominated with mahogany desks and leather stitched chairs. Sports memorabilia is displayed in glass cases on the windowsill, capturing a breathtaking view of the city skyline. Billables are a mere scoreboard, a symbolic ‘mines bigger than yours' contest that provides momentary relief from the insecurity of small man syndrome. No women stray from the fabric, swivel chair of their cubicles. The clacking of their over-priced, blister-inducing court shoes are at odds with the marble floor. How could you risk disrupting the man with his name on the wall?

The male brain has traditionally been synonymous with ‘understanding the world and building and repairing things within it,’ while the female brain is ‘best employed in putting people at ease’ (Fine 2010). Not only does this falsely naturalised assumption create a gendered power imbalance, but it further inscribes the masculine as more dominant and ‘better suited’ to the legal profession. Women are expected to consider more contextual factors when working with clients, standing in stark contrast to the predictability, objectivity, deductive reasoning, universalism, abstract rights and principles attributed to male legal professionals (Menkel-Meadow 1989). These rigid gender roles are seen as an extension of the heterosexual power matrix, as the political category of women is what founds society as heterosexual (Butler 2006). Recent debate surrounding gender equality in the legal profession claims women are of value, insofar as they offer a caring and empathy-rich approach to mediate the competitive, adversarial and individualistic orientation of the field (Roach Analue). This claim is used to justify the ‘alternative’ professional culture that could emerge as a result of greater female inclusion in the legal profession, as women’s life experiences differ from those of the original law-makers (Roach Analue). It is great that many legal professionals and firms claim to value gender equality. However, my value is not limited to the singular word of ‘difference’. Not now. Not ever.

Between 1903 and 1923, the statutory limitations that previously prevented women from entering the legal profession were extinguished, although this decision had no impact on the alarmingly low percentage of female law graduates that prevailed until the 1970s (Roach Analue). Despite a 15% increase in practicing female lawyers in Australia from 1947 to 1991, gendered barriers are still operating and being institutionalised in the legal profession (Roach Analue). There is no doubt women are clustered at the lower end of a law firm’s food chain. They frequent lower-paid, less prestigious roles with little scope for promotion (Podmore & Spencer, 1982). This trend is exacerbated at the bar. The High Court of Australia is a prime example. Here, men appearing before the court had a 63% chance of being granted a speaking role, while women only had a 25% chance (Dolor 2017). Further, in all cases before the High Court of Australia between 2015 and 2016, only 22% of all barristers were women. Further, male barristers spoke 438 times, compared to female barristers’ 42 (Dolor 2017). Women only appeared as lead counsel 25% of the time, while male junior counsel provided 70 speaking opportunities compared to their female counterparts’ 5 (Dolor 2017). These statistics contradict the trends of law graduates, to which 63% of freshly admitted lawyers are women. They subsequently highlight a gender-based, glass ceiling operating between admission and employment progression within the legal profession (Dolor 2017). Anne Maree David, president of Australian Women Lawyers, maintained that such statistics are “sadly reflective of the state of play more generally for women barristers working in all Australian jurisdictions … this research also speaks to the complex issues of bias and discrimination experienced by women lawyers” (Dolor 2017).

The assumption that women have finally broken through the glass ceiling of the legal profession is equally naive and optimistic. It is a fabricated idealisation entertained by “high flying female solicitors”. Where is consideration to the empirical data that shows female solicitors receive less than half the chances of their male colleagues to reach partner status (21.6% against 47.2%) (Bolton & Muzio 2007)? Female solicitors are also more likely to work part-time, which in turn directs them away from the commercial, big business sector and into more lucrative/ smaller practices in family, employment, and minor criminal matters (Bolton & Muzio 2007). A pattern of internal, gendered culture is more likely to focus on informal considerations, including gentlemanly character and personal ties. It is also exercised tacitly through sponsorship, mentorship, and patronage, all of which are incompatible with familial responsibility (Bolton & Muzio 2007). It is clear a closure strategy is operating within the legal profession which rewards only a small circle of eligibles (Parkin 1974).

Yes, there has been a slow erosion of barriers facing women’s entry into the legal profession. However, the increasing supply of female law graduates is being opportunistically exploited by industry elites to retain traditional privilege that would otherwise be lost with complete feminization of the profession (Bolton & Muzio 2007). On this basis, women are granted access to the legal profession because they bring a different voice, but only if they are lucky (Malleson 2003).

It is through the claim of ‘difference' that women in the legal profession are further limited and marginalized. The law ‘maintains male domination'’(Polan 1982), as a ‘paradigm of maleness’(Rifkin 1980) and a particularly potent badge of legitimacy and cloak of force (MacKinnon 1989). On this basis, difference theory merely reaffirms male supremacy and female subordination, to which empathy, care, and concern for relationships is a weaker female vice (Mackinnon 1987). These quintessential female gender roles are socially based signifiers of femininity constructed as a woman’s voice within the shadow of male dominance (Roach Anleu). Theorist Catherine Mackinnon famously asserted “women value care because men have valued us according to the care we give them… women think in relational terms because our existence is defined in relation to men” (1987). This theme extends to gender equality on the bench, to which the greater participation of women will add a new dimension of justice (Goldman 1979). Some legal scholars even go so far as to say ‘the appointment of more women to the bench would enhance the likelihood that a certain perspective (the symbolic female one) is brought to bear” (Grant and Smith 1991). The irony of justifying greater female involvement in the legal profession on the premise that women will provide a different perspective merely functions to reproduce and transmit the dominant ideology (Thornton 1986). In turn, difference theory is seen as the only avenue for which women can access the top tiers of the profession, directly prescribing an ‘ethics of care' value as a necessary expectation (Malleson 2003). 

Gender equality on the bench shows an alarmingly slow transition, especially in light of the widely accepted ‘unqualified good’ which the judiciary holds in the highest regard (Malleson 2003). The gross, empirical weakness of their claim that women bring a new dimension to the decision-making process of the judiciary is clear. There are no major discrepancies between the votes of male and female justices in the Supreme Court (Malleson 2003). The doctrine of judicial impartiality maintains judges offer justice without fear or favor, affection or ill will (Malleson 2003). Such a threshold of professional conduct should warrant decision making consistent with rules of law beyond the scope of falsely naturalized neurosexism that reflects cultural beliefs about gender (Fine 2010). The claim of difference affirms the quintessential female role of carer and mediator and re-inscribes these values as the capacity for which women must contribute to the legal profession if they are granted the opportunity. Hence, ‘the female subject turns out to be discursively constituted by the very political system that is supposed to facilitate its emancipation’ (Butler 2006).

Therefore, it is without a shadow of a doubt that the legal profession institutionalizes and re-inscribes traditional gender roles. Women are seen as the ‘other” within the male-centric ego of the legal profession, dotted with pinstripe suits and suffocating cologne. Despite movement towards the feminization of the legal profession, women are still widely seen as nurturers, carers, and empaths, all of which are incompatible with the cutthroat, boys club of law. The shift towards a dominant ideology in which women are necessary in their capacity to offer a renewed and different dimension to decision-making only provides a superficial veneer of empowerment. On deeper consideration, the argument only maintains the status of dominant masculinity as the default convention of reasoning and conduct within the legal profession, to which women are seen as the ‘other' or afterthought. However, this should not discount the dialogue surrounding the gender equality debate, but merely inform women they are not expected nor limited in their capacity to contribute to the legal profession. Systematic change to the gender culture of the legal profession is still needed and, although Rome was not built in a day, there is an apparent time lag (Kirby 1998). How long will it take for Elle-Woods inspired women to be granted respect by male colleagues and clients alike?

It is time gender has its day in court, with counsel for the plaintiff, all bright-eyed, ambitious women dressed in fierce pink suits. As the golden-haired woman herself proclaimed, ‘whoever said orange was the new pink was seriously disturbed’.

By: Chloe Skewes-Weir

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