Across the nation, nearly 40 percent of those graduating from law school are women. Does this signify the end of gender bias in the courtroom? "Well, we naively believed those numbers would make a difference," says Lynn Hecht Schafran.
The powerful and traditional American judicial system didn't change, however, merely because 15 years ago some of its junior members started sporting skirts with their ties and briefcases.Gender bias still exists.
Schafran is the director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts. She is an adviser to Supreme Court task forces on gender bias through-out the country. Schafran was in Salt Lake City this week meeting with members of the Utah Supreme Court task force on gender and justice who have now finished their research and are hoping to publish their findings and recommendations in the fall.
Schafran believes education can accomplish what the force of numbers didn't: gender justice. She hopes to educate lawyers, law professors and those who nominate and appoint judges. Judges already have ongoing education - classes they attend are perfect places to teach gender equality. (In Utah, the Legislature funds continuing judicial education under the direction of the court administrator's office.)
Yet Schafran has no illusions about how easy it will be to change "a deeply structured view of the world."
None of us recognizes our own biases, she says. Judges are no exception. Nor do they welcome the news. "If your job description is to be fair, you're never going to be happy to hear you aren't doing your job."
However, in state after state ("Today we have 27 task forces in various stages") citizen/judicial task forces are recommending change.
"We don't know the results of the Utah study," she says. "But in other states task forces have found bias in family law, criminal law, awarding of damages, and within the court personnel system."
Bias in family law means women bear the economic hardship of divorce and men hardly ever get custody of their children. In criminal law, task forces found a Catch-22 situation in which prosecutors don't want to invest a lot of time with abused wives or rape victims, who sometimes decide not to go forward with their case. The prosecutors don't understand how their own attitude discourages women, Schafran says.
"It takes a tremendous amount of support to take a case like this to trial, and you just don't want to proceed in a system that doesn't support you. In New York, for example, court personnel who were supposed to help women fill out the forms were making sexist remarks. Those kinds of things undo women's resolve to prosecute."
Schafran doesn't believe gender bias is conscious or malicious in most cases. Social changes have come rapidly. In many professions, not just law, attitudes lag behind.
One judge told Schafran, after a workshop, "My mother taught me to be courteous to women." "He never realized until it was pointed out to him that by being chivalrous and gracious to women attorneys he was undermining their status in the courtroom - calling attention to them as women, not as professionals," says Schafran.
She sees a new awareness in the New York appellate courts, but the trial courts have not caught up, she says. She sees progress in New Jersey, too, where 25 task force recommendations were issued four years ago, and 23 of them have been followed.
Schafran spoke to Women Lawyers of Utah while she was in Salt Lake, urging members of that group to continue to put their names forward for judgeships. "Out of 41 appointments since your current governor began his first term, he has appointed only three women to the bench," she said. "Now I don't have data on all those appointments. I do know that in 17 out of 24 of those appointments, he did have women's names forwarded to him by the nominating committees. So your governor appears to be a stumbling block."
However, she urged her audience not to be discouraged. Schafran sees equality in the courtroom as a lifetime effort. "The task force reports are only a beginning," she says. "And gender bias won't be solved by giving judges one class."
She agrees with the note written by a judge after his first workshop on the subject of gender bias, and she is heartened by his openness. The judge wrote, "New ideas. Hard to hear."