Justice Not Always Blind, Especially to Gender

New York – When Legal Momentum, a U.S. advocacy group that works with all aspects of gender in the legal system, started its National Judicial Education Programme in 1980, gender discrimination was an unacknowledged problem in the country’s courtrooms.

Thirty years later, the New York-based NJEP has produced dozens of reports and educational programmes for U.S. judges and lawyers, including an authoritative 500-page handbook on gender discrimination in the legal system.

Legal Momentum started its judicial education programme with the goal of changing a legal culture unwilling to challenge or otherwise address its atmosphere of sexism.

In the 1980s, when the group started publishing educational materials, even casual sexism would pass without comment in courtrooms, according to NJEP director and founder Lynn Schafran.

But today, says Schafran, both attitudes and legal procedure have changed. The NJEP led to over 40 state and federal-level task forces on gender equality in the legal system, as well as important amendments to the American Bar Association’s code of judicial conduct.

Now, according to Schafran, ABA standards forbid judges from “manifesting anything that even looks like bias” in their courtrooms.

Marsha Freeman, a professor at the University of Minnesota Law School, edited and helped write Minnesota’s task force on gender equality in the legal system in 1989.

She says that at the time, Minnesota had one of the more progressive legal systems in the country. Even so, judges were shocked to learn about how courts could display bias in family law and domestic abuse cases.

“It was a real eye-opener for the judges,” she told IPS, “and the task force got the word about what was happening out there.”

Thanks to the task forces and reforms that Legal Momentum helped initiate in the 1980s, overt sexism is far less common in the U.S. legal system – but experts and activists say that it is no less insidious.

Schafran identified several issues on which sexism in the legal system is still disconcertingly relevant: in two U.S. states, expert witnesses are unable to testify on a rape accuser’s behaviour, leaving judges and juries to depend on often-sexist assumptions and preconceived notions in assessing a rape victim’s actions.

Rape and sexual abuse victims in general are vulnerable to this kind of subtle, unofficial sexism – sexism that sometimes has a tangible impact on women’s safety.

Schafran described a recent case in Maryland in which a woman was denied an order of protection for her children because she had had sex with her abusive husband shortly before requesting the order.

But the court was unwilling to differentiate between consensual sex (which, for the court, proved the health of the couple’s marriage) and sex under the indirect threat of immediate physical violence, using an outdated sense of marital and sexual mores as a basis for a decision that could have threatened an entire family’s safety. Cases like this are unfortunately common, says Schafran.

“There are assumptions that women are lying or making it up,” in abuse or protection cases, she says, or “are trying to get the father branded as a sex offender.”

Schafran and Freeman say that implicit sexism can even be seen in the U.S. Supreme Court.

In 2009, retired associate justice Sandra Day O’Connor criticised her former colleagues for making light of the experiences of a 13-year-old petitioner who had been strip-searched at her public school.

Although the court eventually decided that the girl’s constitutional rights had been violated by the search, some of the male justices’ comments trivialised the experience of getting strip-searched as a 13-year-old girl, revealing how male judges were capable of misunderstanding some cases’ crucial gender dynamics.

Freeman identifies a 2007 Supreme Court case as another damning example of implicit sexism in the nation’s highest court.

In the so-called Ledbetter decision, the court ruled that gender or race-based pay inequality could not serve as the basis for a lawsuit if the alleged discrimination occurred over six months before legal action was taken.

According to critics, the justices had not only thrown out a potentially far-reaching discrimination suit on what appeared to be procedural grounds, they also failed to recognise potentially legitimate reasons women may have for not immediately bringing gender discrimination to a court’s attention.

Freeman was shocked by the decision. “It made me think ‘oh my God we have so far to go,'” she said.

She attributes the endurance of sexism in the U.S. legal system to social norms that extend far outside the legal system itself.

“Where we are sitting,” says Freeman, “is that that are still far too many people in power who don’t quite understand that equality means that their model for how life is lived may have to change.”

That means that the NJEP is probably incapable of quashing legal discrimination once and for all. But Schafran realises that legal equality is an ongoing struggle. After all, judges are constantly retiring and being replaced.

“We’re working with a moving target,” she says.

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