How Gender Bias Creeps Into Courts : Judicial Council proposals are brilliantly to the point

The workings of the state Judicial Council appear to be grist for cocktail conversations among lawyers but of little interest to anyone else. But the recent recommendations of the council--the constitutionally mandated body that sets rules for courts and standards of judicial administration--should interest anyone who may ever set foot in a courtroom.

The recommendations attack gender bias in the legal system in ways so specific that they will likely affect any woman who walks into court. And because this comes from the powerful council, there’s no doubt that all of the 67 recommendations will become court rules once the details are worked out. Those rules make California a leader among states.

A council report concluded last March that women, be they attorneys, witnesses or otherwise, generally were perceived as having less credibility than men. That’s not a problem unique to the legal system. But courts exist in the context of assumed fairness and impartiality. To the degree rhetoric and reality fail to meet, faith in the rule of law and the legal system itself erodes. That’s why the council’s effort to combat anti-female bias in its own ranks is vital.

The council recommendations address ways to curb both egregious and subtle discrimination against women in the legal system. There are the obvious offenses: a judge who calls one attorney Mr. Johnson and the other “honey” or “Mary”--an attorney who refers to the other attorney as “this babe.” But there are the subtle, more common biases that illustrate the way in which “business as usual” in the legal system sets up barriers to equal justice for women. A key example is the courts’ way of allocating court personnel and resources, which the council found was biased against family and juvenile cases--which disproportionately affect women and children. One prominent jurist told of presiding for 10 days over a civil trial involving a $100,000 dispute between two companies; later, when she was in dependency court presiding over custody and child abuse cases, she was expected to deal with 30 to 40 cases a day, with each case involving an average of 2.5 children. So, 10 days for $100,000 for a company, or 10 days for crucial cases involving 1,000 children. Nothing could tell the story better than that. The council has decided that the system must re-order its priorities.

The specifics for changing procedures will take time. But the process of sensitizing the system has already begun. Many judges are learning more about how gender bias creeps into language. Soon gender-neutral language will be required in all local court rules, documents and jury instructions.

The council’s gender-bias work was one of the last official acts of former state Chief Justice Rose Bird. Chief Justice Malcolm Lucas played an admirable role in keeping the issue alive; a racial and ethnic bias committee is in the works. The council can’t rid society of its prejudices, but justice demands that the legal system be held to a higher standard.