By: Andrea S. Anderson, PhD Candidate, Osgoode Hall Law School
There is nothing quite like being a defence lawyer—walking into a criminal courtroom with a nice suit on, pulling your litigation case, proceeding to the front to sit at counsel table ready to advocate for your client—only to be stopped by another member of the bar who advises you that the general public are to sit in the body of the courtroom and wait for their matter to be called. There is nothing quite like that when it happens more than once.
Female lawyers experience various forms of gender-based challenges in practicing criminal law.
This is a recent finding from a Criminal Lawyers Association (CLA) study, which highlights that female defence lawyers are leaving the practice at a higher rate than men. The March 2016 report, “Retention of Women in Criminal Defence Practice Study,” reveals that unpredictable hours and income, limited family support, and sexism are some of the reasons that female defence lawyers are dropping out of the profession at higher rates than their male counterparts. In a recent CBC interview, prominent criminal defence lawyer and CLA’s VP Breese Davies made note of the survey’s findings, which included specific examples of sexism female lawyers experienced, including occasions where senior male counsel assumed they were students, being asked to do administrative tasks, and being propositioned by male clients. The respondents of the survey also reported mistreatment at the hands of senior women lawyers and judges.
The CLA report, which examined the extent of the problem in Ontario, gathered data from focus groups, Legal Aid Ontario, the Law Society of Upper Canada (LSUC), and a 2015 survey the CLA conducted amongst 224 of its female members. The authors found that between 1996 to 2014, forty-seven women and eighty-seven men were practicing criminal law. By 2014, sixty percent of women who had started out in defence had left, compared to forty-seven percent of men. Women left criminal law more quickly than men between the five to ten year mark of their careers. The report contains a number of recommendations for change, which include improving mentorship opportunities, greater supports for women taking maternity leave, and on-going education for lawyers and judges to address the differential treatment of lawyers in the system.
While the report effectively illustrates the various ways female lawyers are impacted by sexism, it is relatively silent on other forms of systemic discrimination female lawyer experience, such as racism: specifically, anti-black and anti-Indigenous racism. Indigenous women and women of colour may be leaving criminal practice for similar reasons to those outlined by the report. When discussing the retention of women in defence, we must not forget the additional challenges faced by Indigenous and women of colour. Coupled with families and demanding schedules, racialized women’s experiences are also impacted by the structural barriers of being both a woman and a person of colour in the legal profession. For example, in 2010, the LSUC released a report on “Racialization and Gender of Lawyers in Ontario” that found that women of colour not only made less than men, but also less their white female counterparts. The 2014 report from the LSUC, “Challenges Facing Racialized Licenses,” highlighted many of the obstacles facing racialized licensees in comparison to their counterparts, including those that arise from the lack of professional contacts, not having similar socio-economic backgrounds as their peers, as well as having manners and cultural gestures misinterpreted in negative ways. Many people of colour practicing defence are sole practitioners. The question arises as to whether this is by choice or an underlying perception that they do not “fit” in the private practice setting.
While not an exhaustive list, in my own experiences practicing criminal defence, I have often (too many times to count) been mistaken for the co-accused, the surety to the girlfriend of my male clients and in turn, prohibited from crossing over to sit at the counsel table or looking at the docket sheet from other members of the Bar—all instances that have included non-racialized female counsel. I have listened to male interviewers make inappropriate comments about my body type, questioning whether I am fit to practice criminal defence. I have been randomly asked in an interview whether I would find it difficult to represent clients who are Jamaican (I only assumed the interviewer asked me that question as he thought I was Jamaican, and I only assume this because he did not ask me if I would find it difficult to represent any other ethnicity or cultural background). I won’t get into the various stories from racialized colleagues about being mistaken as the court interpreter by other counsel. The examples are numerous, from the notion that when we walk into a courtroom we are never the lawyer, the moments of listening to colleagues make racial slurs against their clients, to the narrative recounted by one of my peers who was offered and accepted a job by a firm, only to be told later that they went with another non-racialized female who they said was a better “fit.” The narratives of women of colour include the experiences of the everyday verbal and nonverbal micro-aggressions around our hair and the way we dress, the reminders of “how articulate we are,” and/or the feeling that despite how hard we work our perceived stereotypical attitude prohibits us from succeeding in the firm’s cultural setting.
In its inability to highlight the way misogynoir—a word coined by queer, black feminist scholar Moya Bailey, meaning the combination of anti-blackness and sexism—that manifests in various systems, the discussion around the CLA report neglects these and other experiences. We cannot significantly improve the well-being of female lawyers without dealing directly with the vulnerability that women of colour face in the practice. Silencing the experiences of racialized female lawyers contributes to the continued misunderstanding of how multiple vulnerabilities are enhanced in relation to one another. If we exclusively focus on gender-based challenges, we cannot work towards understanding the other forms of systemic discrimination facing Indigenous and women of colour.
Over thirty years ago, activist and critical race scholar Kimberle Crenshaw coined the term intersectionality to address the many challenges facing women of colour in America. The term was used to describe a case where African American women sued General Motors on the grounds of race and gender discrimination. Though the company had employed both women and members of the Black community, the jobs that were available for Blacks were only given to men, and the jobs that were available to women were only given to white women. As Crenshaw noted, for years the intersection of General Motors’ race and gender policy had a specific impact on African American women, in the way they were completely excluded them from jobs. Today the theory of intersectionality is used to recognize the overlapping vulnerabilities people face, which creates compound forms of discrimination.
Understanding the varying ways that people experience the exclusionary aspects of practicing
law can allow for the inclusions of other realities. This means including Indigenous and the voices of women of colour in the conversation in a meaningful way. Ultimately, intersectionality highlights aspects of discrimination that historically have made it more difficult for certain people to be seen and heard. The battle for equity in the legal profession is also one of misogynoir and systemic racism which includes white female lawyers. By not identifying the intersection of our social identities within the practice of law, we continue to push Indigenous and women of colour to the margins of these discussions that are supposed to include all women.