Hunter, Rosemary; McKelvie, Helen --- "Gender and legal practice" [1999] AltLawJl 10; (1999) 24(2) Alternative Law Journal 57

that side of the profession ... is ... hand to hand combat of a personal kind. Women make very good soldiers in a modern army, because they are required to pull a trigger on a weapon that kills someone 500 or 1000 yards away ... they are not very good at bayonet fighting. [In the courtroom] it is very much hand to hand, or mind to mind combat.

Women were seen as suitable for Magistrates Court matters, Practice Court and interlocutory work in the higher courts, research and advice work, but not necessarily for heavier assignments. It should be stressed that these views were not held by all players, and some actively rejected them. Their presence in the system, however, continues to have an impact on women barristers’ careers.

Advocacy tactics

In the courtroom itself, women face a physical setting which was not designed for them, and which in many cases advantages those of larger stature and deeper voice. This is not entirely a gender issue, since short men with higher pitched voices are confronted with a similar challenge. In general, too, it appears that female barristers have been largely successful in finding their own ways of being effective advocates. At the same time, however, a barrister’s traditional courtroom arsenal includes the ability to engage in gameplaying tactics to gain the upper hand over their opponent. The research findings suggest that male barristers are more likely to initiate and be comfortable with such tactics. While some women learn how to play them, the interviews indicated that they are more likely, at least initially, to find them alienating and confusing.

Long hours and continuous practice

Lastly, the prevailing attitude around mothering and part- time work amongst members of the profession was shown to associate these with lack of commitment or even incompetence. This attitude defines a good barrister as one who works long hours, including weekends, on a continuous basis, and does not have (or acknowledge) competing demands on her time. It follows that this barrister has a full-time, home-maker partner to take care of the family — something that women barristers find it hard to come by. It appears from our interviews that male barristers (especially younger ones) are also beginning to identify the negative effects on themselves and their families of continuing to adhere to traditional models of practice at the Bar. Some of the interviews also pointed to male barristers finding it harder to establish or maintain dedicated domestic support systems, with social changes challenging the ongoing viability of the traditional model. For the time being, however, long hours and the acquisition of experience and seniority through practice uninterrupted by childrearing remain part of the definition of barristerial merit. It was interesting to discover that barristers who had taken extended leave from the Bar for reasons other than parenting had not experienced any stigma and had far fewer difficulties re-establishing their practices when they returned to the Bar. By contrast, the research suggests that competing family responsibilities, and attitudes at the Bar towards them, are possibly the largest contributing factors to women leaving the Bar.

Conclusion

Our research into the Victorian Bar clearly demonstrates the many ways that gender is relevant to practice as a barrister. Furthermore, interactions between gender and age, class, ethnicity, sexuality and other aspects of identity may impact in different ways on the acquisition, recognition and definition of skills and knowledge as a barrister. Our interview sample was too small to enable us to draw meaningful conclusions on most of these points, although some differences did emerge between the experiences of older and younger women barristers, both in terms of changing manifestations of gender bias, and changing perceptions of and reactions to gender biased attitudes and treatment. The Victorian Bar Council has also recognised that gender has played a negative role in the career prospects of women at the Victorian Bar, and is currently working on a range of initiatives in response to the report on Equality of Opportunity for Women at the Victorian Bar, addressing both opportunities for the acquisition of skills and knowledge as a barrister, and aspects of Bar culture that go to the recognition and definition of merit. These efforts are to be commended.

We do not, however, subscribe to the liberal ideal that gender should simply become irrelevant to practice as a barrister. Rather, by virtue of its history and its place in the legal and social order, the Bar is an inescapably gendered institution, and being a barrister is an inevitably gendered practice. The issue is, what meanings are ascribed to gender? Can it work in a way that does not have a systemically adverse impact on women? For example, gendered male barristers could also be recognised as fathers, gender essentialism in beliefs about suitability for particular kinds of work could be challenged and disrupted, and gender differences could be valued rather than stigmatised. Gender cannot be banished from the script, but it can be written and performed in new, more inclusive and interesting ways. Can women barristers make that much of a difference?

References

---

[1] This article is based on research commissioned and funded by the Victorian Bar Council, and undertaken under the auspices of the Centre for Employment and Labour Relations Law, Faculty of Law, The University of Melbourne, and the Justice Research Centre, an independent, public interest research organisation established by the Law Foundation of New South Wales.
[2] It should be noted that this barrister is not alone among her colleagues in holding this view. As indicated in Table 2, several senior female barristers were interviewed as part of the research. Their experiences and views of the Bar are represented in the report, and will also be explored further by the authors in a forthcoming article.
[3] For example, Wilson, Madame Justice Bertha, ‘Will Women Judges Really Make a Difference?’ (1990) 28 Osgoode Hall Law Journal 507.
[4] Since the focus of the study was on the identification of any barriers to women’s advancement at the Victorian Bar, the research report, and this article, are primarily concerned with the negative ways in which gender impacts on women’s practice as barristers. The positive impact of gender for male barristers is documented as a corollary. It should also be noted that some interviewees saw advantages attaching to being a woman at the Bar. However, these advantages were not consistently identified; nor were they borne out by the statistical record.
[5] Gaudron, Hon. Justice Mary, ‘Speech to Launch Australian Women Lawyers’ (1998) 72 Australian Law Journal 119 at 121.
[6] Australian Law Reform Commission, Report No. 69, Part II — Equality Before the Law: Women’s Equality, AGPS, Canberra, 1994, p.176.
[7] χ² = 41.044, df = 8, p << 0.001.
[8] χ² = 16.633, df = 1, p << 0.001.
[9] See also Thornton, M., Dissonance and Distrust: Women in the Legal Profession, Oxford University Press, Melbourne, 1996, pp.166-77.
[10] Thornton, M., above, pp.134-36.
[11] See for example, Burton, C., Redefining Merit, Affirmative Action Agency Monograph No.2, 1988; Thornton, M., ‘Affirmative Action, Merit and the Liberal State’ (1985) 2 Australian Journal of Law and Society 28.

[12] See for example, Keys Young, Research on Gender Bias and Women Working in the Legal Profession: Report, NSW Department for Women, March 1995; Menkel-Meadow, C., ‘Feminization of the Legal Profession: the Comparative Sociology of Women Lawyers’, in R. Abel and P. Lewis (eds), Lawyers in Society: An Overview, University of California Press, 1995; Roach Anleu, S., ‘Women in the Legal Profession’ (1992) 66 Law Institute Journal 162; Weisbrot, D., Australian Lawyers, Longman Cheshire, 1990, pp.87-88.