The Bar And Bench, And Sexism - From The Courts Of The United States Of America
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Category: General Law
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THE BAR AND BENCH, AND SEXISM: FROM THE COURTS
OF THE UNITED STATES OF AMERICA
Apoorva Sharma, Ph.D. Research Scholar, University of Rajasthan
ABSTRACT
This article critically examines the entrenched sexism within legal institutions, particularly in the judiciary and bar, through a historical and contemporary lens. It reveals how systemic gender bias manifests in both overt and subtle forms—from discriminatory remarks and unequal treatment to sexual harassment—affecting the professional experiences of women lawyers. Drawing from personal narratives, a review of empirical studies, and notable legal cases, it underscores how the intersection of power, gender, and tradition perpetuates inequality in the legal field. The article also analyzes the American Bar Association’s pivotal amendment to Rule 8. 4(g) of the Model Rules of Professional Conduct, which formally recognizes harassment and discrimination as professional misconduct.
This legislative and cultural shift, along with the establishment of judicial performance commissions, represents a critical step toward institutional accountability. Nonetheless, the persistence of patriarchal norms suggests that while progress has been made, significant structural and cultural reforms are still necessary to achieve substantive gender equality in the legal profession. Keywords: Sexist Language, Judicial Misconduct, Gender Equality
It is a fact that unabashed sexism exists in judiciary and other institutions. Sexism is institutionalized in the basic working of the organization of courts, the bar, and the bench, and it is not only limited to numerical disparity. Women advocates report that sexism in the legal profession manifests both openly and subtly. This can range from mansplaining and infantilization to outright sexual harassment. Misogyny in the justice system takes many forms. Women lawyers continuously navigate and counteract sexism in their interactions with colleagues, judges, administrative staff, and clients. Remarks about a woman's clothing, marital status, or professional accomplishments are often made in court by those involved. These comments have become so normalized that many fail to recognize them as offensive, blurring the line between humor and sexism.
Numerous articles written by women in the legal field have shared their personal experiences of discrimination and the challenges they face. “Women’s clothing, marital status and professional success are commented upon in courts by all the players. It is so ingrained and naturalized; they don’t even know it is derogatory. They cannot tell the difference between humor and sexist remarks. 1” A citizen, as a member of the general public, looks to particular institutions for preservation of
his or her rights and dignity. People's ambitions must be met by the Supreme Court, which is one of the most important institutions in the country. Countless female lawyers have spoken out against the bar's sexist practices, as well as those of male advocates and judges. Women judges and advocates have also been perpetrators of bigotry, whether within or outside the courtroom. Regrettably, the dreadful scenario is not unique to Indian courts. Women who work in the legal profession suffer all over the world. The power imbalance is palpable. When women assert their power, it makes people uncomfortable. Law has always been inextricably linked to power, with direct links.
Law has been a male dominated career because people who studied and practiced law were the most powerful and because power always rested with the men and they were afraid to allow women to have a role; law was a male-dominated profession in America too. Of course, until the first woman was admitted to the bar. Belva Lockwood became the first woman admitted to the Bar on March 3, 1879. She became the first woman to practice at the Supreme Court and thus, became a role model. Things changed when women started enrolling in law schools and actually started studying law in the 1 Deborah L Rhode, The Unfinished Agenda: Women and the Legal Profession (American Bar Association 2001).
United States. However, the United States Supreme Court denied women license to practice law in 1873, claiming that God and nature meant women for domestic life and only males for civic life jobs. Law schools initially refused to admit women (Harvard resisted until 1950), and then artificially limited the number of women accepted by accepting a considerably lower percentage of eligible women than men. Some states still refused to admit women to the bar around the turn of the century, while others stated that no women were interested in applying. There were less than a dozen female lawyers in many of them, and there were fewer than two dozen African-American women practicing law nationwide. To quote one judge in the District of Columbia who suggested, "Bring on as many ladies as you want. I don't believe they'll be successful.
"2 Though the situation is not as grim anymore; women now constitute 37% of lawyers in the United States3. Yet, the day-to-day struggle for dignity and respect is a harrowing reality of every woman who is a part of this system. A glimpse of it can be seen in the publication of an article by The Atlantic wherein women came together to interview and to elucidate, the article reads how important clothing was for a woman lawyer. She had to be attractive but not provocative. None of such requirements concerned men though. In an incident, on a hot day, the female lawyer took off her coat in the courtroom. The judge remarked, “Are you stripping in my courtroom, Ms. Bazelon? ” Inappropriate language used to taunt and ridicule women’s professional abilities by making lewd and irrelevant considerations like clothes is not uncommon.
The lawyer wrote, “Heads swiveled, and I looked down at my sleeveless blouse, turning scarlet”4. This is not a solitary incident but a part of a plethora. Women often encounter misogyny in practice and have been told a million times to “be the person who everyone loves in the courtroom”. Thereby, implying that for a woman succeed, she has to revert to other considerations like appealing to the eyes and heart rather than just focusing on the objective practice only. Therefore, it is evident that sexism was apparent in law in America. The American Bar Association recently performed a research to determine why female lawyers leave practice earlier than male lawyers and what experiences they encounter that are unique to women and unlikely to have been faced by male lawyers5. Why is there such a large disparity
2 Belva Lockwood, “My Efforts to Become a Lawyer,” in Women in the American Economy: A Documentary
History, 1675- 1929, 297, 301 (W. Elliot Brownlee & Mary M. Brownlee eds. 1976)
3 Profile of the legal profession, ABA, 2021
4 Lara Bazelon, ‘What It Takes to Be a Trial Lawyer If You’re Not a Man’ (The Atlantic, September 2017) 5 American Bar Association, “In Their Own Words: Experienced Women Lawyers Explain Why They Are Leaving Their Law Firms and the Profession”, Joyce Sterling and Linda Chanow, 2021
in the number of male and female lawyers while the number of male and female law students is comparable is a troubling question for a developed country like the United States given that a huge number of female lawyers were leaving the field even at the apex of their careers prompted the study. This trend was detrimental for the legal system because it results in the loss of valuable experienced lawyers, and it also de-motivates young women who are studying law and look up to such skilled and senior advocates. When senior women leave, they carry away significant investments made by their organizations over time, as well as strong relationships with the clientele they represent. The loss of experienced female lawyers has an effect on the retention of junior female lawyers who look to veteran female lawyers as role models, mentors, and proof of accomplishment.
The findings of the study were, in fact, dismal. The majority of active lawyers and those who have retired have complained about the bar's toxic, discriminatory, and patriarchal climate. Unhealthy competition and incessant barbs that border on bullying have a negative impact on their mental health, leading some to abandon the field in search of a better and equal existence. The mismatch between characteristics associated with women and those associated with professional success, such as assertiveness and competitiveness, has long been a barrier to equal opportunity. Women are still subjected to a long-standing double standard and are trapped in a double bind. They risk being chastised for being too "soft" or "strident," too "aggressive" or "insufficiently aggressive.
" The women lawyers interviewed for the study brazenly exposed the horrific face of patriarchy hidden beneath a so-called gender sensitive and "fair" bar. They shared personal stories about being discriminated against because they were working mothers, wore a certain sort of attire, or were not married, among other things. Women described how they were handled when they were late for a meeting or appointment, for example. "Did the kids hold you up? " was one of the questions they were asked or "Man, you're running late. I'm sure you long to be at home with those kids. ”6 The terminology is fundamentally sexist since it perpetuates the stereotype that women are more domestic and less professional than men. Initially, bias, prejudice, harassment, and discrimination were not mentioned or referenced in the Model Rules of the ABA when they were first approved in 1983.
The committee for women in the American Bar Association made numerous attempts, as well as moving resolutions, but none of them were able to pass the stage
6 American Bar Association, ABA House of Delegates Adopts Model Rule Prohibiting Harassment and
Discrimination (ABA Journal, 8 August 2016)
of acceptance by the House of Delegates. Advocates argued that freedom of speech and expression is a fundamental right, and that such a resolution would place restrictions on their relationships with other female lawyers. The goal of the present resolution which passed ultimately was to eradicate all misogynistic rhetoric. Regardless of such arguments against it, the resolution was advanced and, despite some opposition, it passed. There were no speakers who spoke in opposition. Despite the fact that nearly two dozen state bars and the District of Columbia bar have similar rules, advocates for the rule said that "using dehumanizing and misogynistic terms and actions to subvert opposing counsel and others too does not always have repercussions. " It was this need for a remedy that prompted the amendment in professional ethics rules.
To better understand the reasons, one should consider Lori Rifkin's encounter with sexism, which drew widespread attention in the United States. Despite the fact that she claims to be "acclimated to" such language, this incident was one of a kind. “Don't raise your voice at me. It's not becoming of a woman,” Lori Rifkin was told by the opposing lawyer when she urged him to quit interrupting her when she examined a potential witness7. The Magistrate took note of the comment and imposed fine on the opposite counsel on account of the language being inherently sexist and inappropriate. To quote Paul S. Grewal of the Federal District Court in San Jose, California, “A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common. ” In his order, he said, “Such language reflects and reinforces the male dominated attitude of our profession.
” Drucilla S. Ramey, a former executive director of the San Francisco Bar Association, said, "An ethical guideline makes us accountable. Lawyers are judicial officers. It's a joy to be able to set a standard of conduct. ”8 There was no national standard for the use of non-discriminatory language, and no statutory clause requiring compliance could be found in any rule book. Women usually disregarded slurs or sexist comments for fear of jeopardizing their careers or being seen as less than team players. They were either afraid of losing their client or knew that there would have been no repercussions if they had called out their male colleagues. They were led to believe that the problem is minor and "ordinary.
" However, the American Bar Association's policy-making body was slated to meet in a few days to vote on the resolution that has now sparked a tempest 7 Rifkin v McDonnell, Order on Motion for Sanctions, US District Court, Northern District of California, Case No. 3:14-cv-04126.
8 Id.
in advocates' professional conduct. All female practicing lawyers gained hope as a result of the resolution. According to the ABA Journal9, the first speaker for the motion was ABA Commission on Sexual Orientation and Gender Identity Chairperson Mark Johnson Roberts, who stated that he was passed over for a job because he was gay10. However, he chose to speak about the story of a female lawyer. The anecdote demonstrates how common it is for males on the job to use misogynistic words perfectly. “A young female associate was grabbed at a Christmas gathering by an older male opposing counsel. After she attempted to escape, the man pursued her and inquired “in the crudest conceivable terms” about any sexual activity she and her husband might be planning that night.
The woman proceeded to her bar organization to submit a complaint, only to learn that the man's actions were not in violation of any ethics rules unless he was convicted of a crime. The woman then lodged a complaint at the police station. ”11 Mark Roberts said, “Now the opposing counsel has a criminal conviction. So be careful what you wish for when you say victims should pursue criminal remedies first. ”12 The New Legal Resolution to Halt Sexism13: The American Bar Association has now voted a national resolution to include discriminating and disparaging remarks by a lawyer in professional misconduct, which might result in suspension from the bar, in a groundbreaking revolutionary move. Despite the fact that such limits existed in some states, nationwide recognition is now offered for the first time. The American Bar Association modified Rule 8.
4 of the ABA Model Rules of Professional Conduct and it’s Comment as follows: “It is professional misconduct for a lawyer to: (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) Commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 9 American Bar Association, Commission on Women in the Profession, Bias Interrupters: Interrupting Bias in the Courtroom (2016) 10 Mark Johnson Roberts, 'New Anti-Discrimination ABA Model Rule is Not an Attack on Speech Rights' (JURIST,
19 October 2016)
11 Lorelie Laird, “Discrimination and harassment will be legal ethics violations under ABA model rule”, ABAJ (2016)
12 Id.
13 Resolution 109, American Bar Association, passed on August 8, 2016.
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) Engage in conduct that is prejudicial to the administration of justice; (e) State or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; (f) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or (g) Engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.
” This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1. 16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. The clause (g) was amended and the words “knows or reasonable should know” were inserted thereby, reducing the gravity of mens rea and mere knowledge that certain language would be derogatory to the opposite counsel or even parties would warrant punishment. In this case, the question is whether one can infer from the facts what the lawyer actually knew, rather than what the lawyer should or might have known. The test here is of a reasonable lawyer when confronted with a situation wherein he is motivated to make a remark but does not so make keeping in mind the mandate of professional ethics.
The words “harassment” and “discrimination” are aptly described in various statutes and a lawyer is expected to be acquainted with the same. Therefore, this test of knowledge is an objective test and intention can be deciphered by the same without strictly making a higher degree of intention, a requisite. A lawyer who harasses or discriminates while engaging in conduct relevant to the practice of
law commits professional misconduct if the lawyer knew or reasonably should have known that the behavior was harassment or discrimination, is covered under the said rule. “Conduct relevant to practice of law” is interpreted in wide sense for Rule 8.4(g). Since lawyers are officers of the court and are responsible for dissemination of justice too, the owe it to the society to assume a greater responsibility and sense of fair and unjust conduct even in matters which
are not specifically related to the practice of law. Therefore, the rule extends not only to verbal conduct in courtrooms but rather it extends to all verbal and physical actions of a lawyer whether in or outside a courtroom in conversation with any person, a female counsel, a female victim or judge and all interactions with the witnesses, coworkers, whether participating in business of the bar associations etc. but in a legal capacity or while addressing a meeting as a counsel in such capacity. The most significant shift is that the lexicon of misogynistic phrases meant to minimize women's knowledge and experience can no longer be disregarded. Women now have a means of retaliating against such verbal harassment by filing a complaint. As a result, language is regulated in a very effective way in the courts to prevent sexism. Previously, the situation was dire.
Countless women had come forward to complain about their male colleagues' patronizing language in and out of the courtroom. Male lawyers frequently used terms like "sweetie" or "honey" when referring to female lawyers. Such rhetoric implies that the male counsel does not see the female attorney as a worthy opponent, and instead sexualizes and objectifies her in order to gain professional advantage. Another US initiative that deserves praise is the establishment of judicial performance commissions in many states to monitor judicial acts and any misconduct committed by judges. The California Commission on Judicial Performance can be used to better comprehend the notion. Such organizations are required to effectively regulate courts and bring them closer to the rule of law.
The Commission on Judicial Performance, which was created in 1960, is an independent state institution charged with investigating and penalizing judges who have been accused of judicial misconduct or incapacity14. The commission's powers are restricted to investigating complaints of judicial misbehavior and, if necessary, issuing sanctions. Judicial misconduct usually refers to behavior that violates the Code of Judicial Ethics' principles. The commission has no authority to overturn a judicial decision; this is a job of the state's appellate courts. The commission may impose sanctions varying from confidential discipline to removal from office after an investigation and, in some situations, a public hearing. Despite the fact that the norms of ethics for the judiciary are not "law" or mandatory, they serve as a guide for a judge's behavior.
If a judge breaks a rule, however, a complaint might be filed. A judge must
14 Article VI, section 18, California Constitution
discharge the duties of the judicial office impartially, competently, and diligently, according to Canon 3 of the code of ethics authorized by the Supreme Courts and the judiciary at large. “Canon 382: A judge shall perform the duties of judicial office impartially, competently, and diligently
B. Adjudicative Responsibilities
(4) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers and of all staff and court personnel under the judge’s direction and control. (5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as, (a) Bias, prejudice, or harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, gender identity, gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, or (b) Sexual harassment.
” A judge shall also preclude from allowing a lawyer to act with bias or prejudice15. These
adjudicatory functions are not merely limited to the responsibility of the bench. Since the bench is the sole repository of any hope of justice, a judge plays an extremely vital role in not only deciding the dispute but rather, the judge is responsible for “justice”. Now, justice can be done only when done impartially and to harbor stereotypical thoughts which in turn manifest in express language is not justice. A judge, when a silent spectator to any legal misconduct, for instance when a female counsel is called “darling” by her male colleague or any other sexist remarks that have now become “part of the job” becomes an active participant of such misogyny. He/she owes it to the judicial office to prohibit and interdict such behavior.
15 Canon 3, Rule 6 of Model Code of Conduct, 2020 edition.
However, though things are far better than what they used to be, they are still far from what they need to be.