Lawyers Testify to Gender Bias in Courts

A woman attorney in the midst of an impassioned closing argument is admonished by an Orange County Superior Court judge: “Let’s not get hysterical, now.”

Another female attorney, in a judge’s chambers with her male opposing counsel, is warned: “Do not try any of your feminine tricks in my courtroom.”

And another local attorney watches in dismay as a male arbitrator and a male opposing attorney repeatedly joke and comment about the appearance of the female plaintiff.

These are the tales of gender bias in Orange County courtrooms, where people are supposedly entitled to equality under the law, but where many women lawyers and their clients contend they are treated as inferior to their male counterparts.

Women judges and attorneys in Orange County say the real problem with gender bias is that it goes beyond insults aimed at women. When sexism becomes apparent in the courtroom, they say, it undermines women who are seeking justice.

“It’s all about the judgments that are based on perceptions or stereotypes,” said Associate Justice Sheila Prell Sonenshine of the 4th District Court of Appeal in Santa Ana. “People never call a man a boy. But then they can’t understand why a woman doesn’t want to be called a girl. The fact is, in a court of law, who is more likely to be believed, a man or a girl?”

“Gender bias is more than just words,” added Los Angeles attorney Gloria R. Allred, who is known for championing feminist causes. “It’s low awards of child support and spousal support and unequally dividing up community property because a woman’s claim isn’t taken seriously,” Allred said. “If a woman is diminished in the eyes of the court, so are the wrongs against her.”

An obvious example of gender bias surfaced late last month when Orange County Superior Court Judge Ragnar R. Engebretsen’s ruling in a 1988 divorce case was overturned after he compared a woman to a cow, repeatedly referred to her “attractive” appearance and called her a “girl” even though she was in her early 40s at the time.

In a strongly worded ruling, the 4th District Court of Appeal ordered a new trial before a different judge. Given the sexist comments made by the trial judge, the appellate court found, it was impossible for the woman to obtain a fair hearing.

Engebretsen, who is now retired, said he has no bias toward women. He said his comments have been “misunderstood” and taken out of context.

But even today, the extent--and the existence--of gender bias in Orange County courtrooms is disputed.

James M. Brooks, presiding judge of the Orange County Central Municipal Court in Santa Ana, says he believes gender bias is largely absent from municipal courtrooms. Others say the problem exists, but contend that the legal profession is vigilant in fighting discrimination of all kinds.

“I’ve never had any complaints about it, and I’m the one who would get that sort of beef,” Brooks said. “I think our judges are very sensitive to that.”

Municipal Judge Donna L. Crandall, who was elected to the bench in November after working as a prosecutor for eight years, said she has never been the target of gender bias.

“I’m not saying it never happens, but it has never happened to me and I’ve never seen it,” she said.

But three reports during the past two years have documented the problem in California, at both the state and federal court levels, supporting complaints that the legal system needs to actively confront the issue.

“A consistent finding is that gender remains relevant in different ways, at different times, but frequently playing a role” in the courtroom, according to a 1992 gender-bias study by the 9th Circuit U.S. District Court, which covers nine states, including California.

“While men occasionally suffer from gender bias, women bear the brunt of the harms that are associated with such bias,” according to the report, the first to examine gender bias at the federal court level.

“Invidious discrimination in the profession is widespread and exists to an unacceptable degree,” concluded a State Bar of California committee, in a 1991 report examining discrimination in the courtroom, including gender bias.

A report issued a year earlier by the Judicial Council of California, the state administrative office for the courts, found that instances of biased conduct in the courtroom “abound.”

Some examples: Judges posting pinup pictures in chambers where meetings take place, and a male prosecutor who offered to drop charges in exchange for a date with his opposing lawyer.

The report, based in part on hearings held throughout the state, including Orange County, also found that spousal and child support awards are too low and crimes of domestic violence are treated less seriously than similar violence involving strangers.

The impact of gender bias is especially critical if the bias is viewed by a jury, attorneys agreed. If a judge or lawyer refers to a female witness or attorney as a girl, or calls her “honey,” jurors may be less likely to take her complaints or arguments seriously. The testimony of female expert witnesses may be treated with less credibility, they said.

In custody battles or debates over community property, stereotypes may prevail, Allred said. It is considered normal for a recently divorced man to quickly return to the dating scene, but the same activity can be held against a recently divorced mother seeking custody, attorneys said.

When dividing up community property, the same issues may crop up. One attorney recalled that a judge awarded a car to the man in a divorce case, reasoning that he would need it to pick up dates.

A judge may be biased against a woman who remained a homemaker during her marriage, reasoning that she is not entitled to adequate spousal support and should just go out and get a job, attorneys said.

The belief that a woman seeking custody of a child may make a false claim that her ex-husband is sexually molesting the youngster sometimes leads judges to reject such claims even when medical evidence may indicate the abuse has taken place, the state report claimed.

But men can also be victims of gender bias.

Sonenshine recalled that, as an attorney in the 1970s, she lost a custody case because the judge believed that there must be something wrong with her client, a Vietnam veteran who was fighting for custody of his child.

“The judge thought a man like that must be too maternal--and that was considered a bad thing,” said Sonenshine, who was not part of the three-judge panel that ruled in the Engebretsen case.

Attorneys say some men may receive harsher punishments than women who commit the same crimes.

“Gender is a two-sex term,” Sonenshine said.

A draft of the federal court report, published in August, documented biases of federal judges. The poll found that 21% of female federal judges have heard their colleagues make disparaging remarks about a female counsel’s sexual orientation while discussing her performance, compared with 6% of male judges who said they observed the same thing.

Three percent of the male judges responding said they prefer not to have pregnant attorneys appear before them. Two percent of the male judges and 3% of the women judges responding voiced objections to pantsuits in their courtrooms.

The state and federal reports said that increasing the number of women judges would help improve biased attitudes in the courtroom.

The federal report also noted that that while 40% of entrants into the legal profession are women, 88% of the 9th Circuit Court judgeships are held by men, and 84% of its private-practice lawyers are men.

In Orange County, a 1993 court listing shows that of 121 judges and commissioners in the municipal and superior courts, only 21 are women.

Concerns about gender bias in local courtrooms have spurred the recent creation of the Orange County Bar Assn.’s Gender Bias Committee, which will be co-chaired by Sonenshine and Fullerton attorney Marjorie G. Fuller.

Presiding Municipal Judge Brooks is also working to establish an anonymous complaint procedure for those suspecting gender bias.

Civil attorney Michelle A. Reinglass, the second woman to head the Orange County Bar Assn. in its 91-year history, said that formation of the Gender Bias Committee was one of her first priorities upon becoming bar president.

“I felt there was definitely a problem there that needed to be addressed,” said Reinglass, who once observed a male attorney in Orange County snidely refer to his opposing female counsel as “Lady Attorney” and “Madam Attorney” while the woman did nothing.

Reinglass said she became angry when the judge admonished both attorneys to be cordial in his courtroom.

“After it was over, I walked up to (the male attorney) and said: ‘Hey, she’s got a name,’ and told him he should pay his professional colleagues more respect. People in the courtroom were giving me the thumbs up.”

The fledgling committee hopes to organize workshops to educate attorneys and judges about the issue of gender bias and may possibly expand to handle bias complaints.

Since last February, attorneys have been required to complete gender-bias education. Similar workshops for judges are voluntary.

While nearly everyone agrees that great strides have been made in identifying and addressing gender bias, some of the attorneys and even judges who were interviewed declined to speak publicly on the topic because they were embarrassed or feared reprisals.

“I’m not going to talk about a judge because someday I’ll have to go back into his courtroom,” one prosecutor said.

But attorney Veronica M. Gray said the appellate decision overruling Engebretsen will go a long way toward helping to eliminate gender bias because the court has shown that women--and men--can successfully fight discrimination.

“Women have been saying about men (that) ‘they just don’t get it’ when it comes to gender bias,” Gray said. “This sends a strong message that they’d better get it.”