f/k/a archives . . . real opinions & real haiku

January 3, 2004

Genderization Won’t Improve the Legal Profession

Filed under: pre-06-2006 — David Giacalone @ 3:55 pm

briefcase women

The legal profession has a lot of serious flaws, but gender bias does not seem to me to be one of them.  Sure, there are individual lawyers who are gender chauvinists, but compared to the rest of society, we have every right to be proud of the gender equality and neutrality that exists today in the legal profession.  (You have not been directed to the wrong site; this is the ethicalEsq weblog.)

As is often the case, the starting point for this train of thought was an interesting post by Scheherazade Fowler yesterday at Stay of Execution, and the responses to her musing and questions — including Comments at Sherry’s site, and postings elsewhere, such as My Shingle and Unbillable Hours.   Apparently, a Chapter 13 bankruptcy trustee recently mentioned to Sherry that there might be a gender problem in bankruptcy law because he saw so few women entering or staying in the field.  As usual, Sherry seems more perceptive than many elders in the profession, and focuses on the most important issues:

  • “My response was to kind of shrug and say “So what?” Why does this matter? Do we care because we care about women lawyers and want to make sure they feel that all career options are open to them? Or do we care because without women lawyers the clients aren’t as well served?”
  • “I don’t know where I come down on all this. I’ve never felt particularly isolated because I’m a woman. I’ve sometimes been the only woman in the room but rarely have I felt bummed out by that, or mistreated. . . .  As I progress into more demanding and sophisticated roles I’ll be playing a little different part and I sure as heck don’t want anyone treating me differently because I’m a woman. I don’t expect anything overt in this area, but it may be that up to a certain point I just won’t be perceived as having the same kind of authority as I would if I were a man.”

Just last week, when looking over materials from a “diversity workshop” attended by the thirteen-year-old daughter of friends, I told Anny something like this:  “I’m really glad that you’re learning to respect people of all kinds and to treat them all without bias.  But, please remember that people who go through life seeing everything through the prism of a mistreated minority see many problems and slights that just don’t exist, or simply make themselves far more miserable than they need to be.”   In a world where the majority of law students are female and there are examples of successful women in every facet of the profession, fretting over gender gaps and “imbalances” seems like misplaced priorities and professional masochism to me.

Richard Ames left a particularly tart Comment at Sherry’s weblog:

The old guard men are getting old, retiring, dying in droves. I don’t see condescending behavior toward women among my male contemporaries anymore than they are likely to be condescending to me or any other man I know. Women in the profession who think they aren’t being “taken seriously” would do well for themselves if they stopped dramatizing “women’s roles” in the law, and simply got on with practicing it.

If some sectors of the legal profession seem to have too few women, the “problem” may be that not many women find the field suitable or enjoyable — because of its substance, hours, clients, etc.  They choose not to enter those fields or choose to leave them, because in 2004, they have that choice.  Of course, the choices may be made without enough good information, but that’s true for both genders.  And, yes, in many instances, a managing partner or pure chance helps make the choice for the new lawyer, but that also happens with regularity to males.


dress shirt  My personal experiences may not be representative, but they have been diverse over the past three decades, and I have never seen gender keep a woman from entering a particular field of law, being judged on her own merits, or succeeding.  Like professional sports, the legal profession is outcome driven and highly competitive; it cannot afford to waste or misdirect talent because of gender biases. 


  • Holding stereotypes about what interests women or male lawyers will often turn the assumer into an ass.   For example, over 20 years ago, there were quite a few female lawyers in management, and many women staff attorneys, doing antitrust law at the FTC — and, I was the one left out of the sports talk at the water cooler, since college basketball never interested me, but several women were rabid Tarheel or Hoya fans.  Also, when I asked to temporarily go on part-time status, in 1980, to prepare to teach antitrust as an adjunct professor, a male manager said, “Oh, you mean that program for women.”   Of course, I immediately reminded him that I would use that quote in my discrimination suit, should he fail to approve my request.  (It was approved.)

Where I’ve personally encountered efforts to genderize law-related selections and programs, the results have been inane or ludicrous.  For example: 

  1. The female head of a search committee for a non-profit children’s rights group told a staffer that only a woman could head the organization due to its subject matter.   They passed over a male applicant with far superior experience and credentials to name a woman director.  A few years later, thankfully, when the position was again open and the search committee was gender neutral, the same male re-applied and was chosen on the merits.
  2. A local family mediation service used two mediators for each session, despite a lack of trained volunteers, because the program’s board believed no woman would feel comfortable if there were only one mediator who was male.   This rule delayed the scheduling and resolution of the program’s entire caseload, and complicated mediations with the unwieldy co-mediator structure.  Because there were far fewer male volunteers, the organization finally ruled that it would be okay to have two women serve as mediators on the same case, but never two men (again, because of the general assumption that the woman client would feel at a disadvantage).     

There is nothing to gain by trying to achieve gender “balance” in various sectors of the legal profession.  In twenty years or so, when a majority of lawyers are women, such goals will seem silly — as I’m sure my female colleagues will ably inform the complaining males.  

Afterthought (01-04-04):   Carolyn Elefant asked on her site yesterday whether there was anything unethical in trying to build a business by catering to the gender or ethnic preferences of clients.  My reply there was as follows:  “I see nothing inherently wrong with using gender or other demographic characteristics to build a business.   A client’s comfort level or other preferences are important.   A problem would arise, I’d think, if the lawyer were misleadingly suggesting that his or her demographic characteristic(s) would assure better results, or if the marketing were done in a manner that demeans any group, or suggests that the lawyer is practicing unlawful or unethical discrimination or would pander to the client’s bigotry.”

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