Needed: An All-Out Bench Press : 9th Circuit offers first systematic look at gender bias in federal courts

A Gender Bias Task Force report on sexism, prepared for the U.S. District Court of Appeals for the 9th Circuit by a group including lawyers, judges and social scientists from throughout the circuit, offers a valuable and rigorously documented view of the interactions of lawyers, litigants and judges in that system. Though the sexism there is largely subtle, it is evidently also pervasive. And that’s disturbing.

“Gender bias is alive and well,” concluded one female attorney. “It has just gone underground. Instead of calling women ‘girls,’ they say things like ‘You are not aggressive enough’ or ‘You need to be tougher.’ It will take generations to eliminate it--if ever.” This lawyer’s comments mirror the report’s conclusions. The 9th Circuit--which includes federal courts in California and 10 other western states and territories--generally has more women on the bench than other parts of the country. Still, 88% of the judges and magistrates are men; although 40% of new lawyers now are female, 84% of the lawyers in practice in the circuit are male. Men also still control the bar committees, judicial panels and partnership committees, a dominance that many view as responsible for the continuing male hegemony in the circuit’s professional hierarchy.

This huge numerical gap, says the report, often produces “destructive” interactions for female attorneys and disparate treatment for female litigants at the hands of judges and lawyers. Gender still counts--and sometimes it counts a lot. The report documents how women attorneys are still often judged by their appearance rather than their ability, how women’s injuries are considered mere irritations, how the testimony of female witnesses is often given little weight and how legal doctrines, in practice, often unconsciously reflect the view that a woman’s injuries are “worth less” than a man’s.

The 9th Circuit should be commended for taking the first systematic look at gender bias in the federal courts. But the report’s findings are, sadly, consistent with those of 30 states that in the last decade have documented discrimination in their own judicial systems.

Because the report found little difference between the attitudes of older and younger lawyers, the authors doubt that gender bias will just fade away. Rather, they urge judges “to lead by example,” to use their “authority and influence to ensure that the federal courts offer truly equal access to men and women.”

We second that call and extend it as well to leaders of the federal bar.