Defining Moments for Women as Lawyers: Reflections on Numerical Gender Equality

Abstract

Twenty years after the launching of the Canadian Journal of Women and the Law, this comment focuses on the first continuing education workshop offered by the Law Society of Upper Canada in 1985 on the topic of women lawyers. The comment reflects on the aspirations and expectations of women lawyers in the mid-1980s, a time of many significant changes for law and for women's lives in Canada. In particular, the comment explains how the 1980s represented the first decade in which the numbers of women in law rapidly increased and how this demographic change fuelled expectations that increasing numbers of women practitioners would "make a difference" to the practice of law. In reflecting on the experiences of women lawyers in the two decades since the Journal first appeared, however, the comment suggests a need to re-imagine how women in law can "make a difference."

Résumé

Rédigé vingt ans après le lancement de la Revue Femmes et Droit, le présent commentaire traite du premier atelier de l'éducation permanente du Barreau du Haut-Canada offert en 1985 et ayant pour sujet les avocates. Ce commentaire porte sur les aspirations et les attentes des avocates au milieu des années 1980, une époque où se produisaient des changements marquants en droit et dans la vie des femmes au Canada. Le commentaire explique particulièrement comment les années 1980 ont représenté la première décennie durant laquelle le nombre de femmes en droit a augmenté rapidement et comment ce changement démographique a alimenté les attentes que l'augmentation du nombre de femmes pratiquant le droit « ferait une différence ». En réfléchissant sur les expériences des avocates dans les deux décennies depuis la publication du premier numéro de la Revue, le commentaire suggère qu'il est temps de reconceptualiser la faç on dont les femmes en droit peuvent «faire une différence».

[What] difference does it make that Clara Brett Martin succeeded in becoming a lawyer in 1897, and what difference should it make that the legal profession increasingly includes large numbers of women as well as men? Beyond the . . . careers of individual women lawyers, what impact will the advent of a significant number of women in the legal profession have on the practice of law, on legal rules and concepts, on the roles lawyers play in our society? Most importantly, will women who become lawyers be just like men who are lawyers, or will they bring a new dimension to lawyering?¹

It was May 1986, an optimistic time for women lawyers. Only a few months earlier, the Canadian Journal of Women and the Law had made its first appearance, and, just one year earlier, the equality guarantees of section 15 of the Canadian Charter of Rights and Freedoms² had become effective. Although the location was Osgoode Hall, the traditional heart of the Ontario legal profession for more than two hundred years, the occasion reflected the possibility of change—the first continuing legal education program on Women in the Legal Profession.³ The program included presentations by two sociologists of the legal profession, John Hagan and Cynthia Fuchs Epstein, who described their research about women in law in both Canada and the United States. There were also panel discussions in which women lawyers in different practice settings described their experiences, identifying new opportunities as well as ongoing problems.⁴ Although the tone of some presentations revealed that women lawyers continued to face barriers, the potential for change in the legal profession was clearly evident in my fundamental questions about whether women might bring "a new dimension to lawyering." Responding positively, Justice Rosalie Abella suggested that "with any luck, 15 years from now if someone tries to organize a conference on Women in the Legal Profession, we will wonder what they're talking about."⁵

Nearly twenty years later, this Continuing Legal Education (CLE) program at Osgoode Hall in May 1986 appears to me as a "defining moment" for women as lawyers. In the first place, it was probably the first time that a provincial law society in Canada presented a CLE program about issues concerning women and the legal profession. As the deputy-director of legal education for the Law Society of Upper Canada commented in a letter about the proposed program: "[The outline] confirms the importance of this program and its long overdue status. It is absolutely astonishing to realize that these issues have never been dealt with in a serious way within the legal profession."⁶ Beyond the issues, however, being present for this program was itself a "defining moment" for many of us. As we gathered expectantly in Osgoode Hall's largest lecture theatre, there was a buzz of real excitement, even a sense of history—for the first time in Canada, we saw nearly two hundred women, all of whom were lawyers, assembled in one place at the same time. As an American scholar explained a few years later, the highly accelerated rate of women's entry into the legal profession after 1970 was "nothing short of revolutionary,"⁷ and that room at Osgoode Hall in May 1986 crowded with women lawyers provided concrete, even visceral, evidence of these "revolutionary" changes in the demography of the legal profession.

In addition, however, this CLE program represented a "defining moment" because it was the beginning of a new phase for women in law—a "third wave" of women lawyers—a phase characterized by ever-increasing numbers of women lawyers. For the first time, at least in terms of numbers, gender equality appeared to have been substantially achieved in the legal profession. However, the issues for this third wave of women in law nonetheless remained rooted in the experiences of earlier generations. Although there were a few exceptional situations in which women had engaged in legal work much earlier, the first wave began in the United States in 1869–70 and gradually spread to other jurisdictions, including Canada. In many jurisdictions, women had gained admission to the bar by the end of the First World War.⁸ Women such as Clara Brett Martin in Ontario,⁹ Mabel Penery French in New Brunswick and British Columbia,¹⁰ and Annie Langstaff Macdonald in Québec¹¹ were among this first wave of women, challenging the male exclusivity of the legal profession. Although many of these women were intrepid and persistent, not all of them succeeded in gaining admission to the bar, and many of them remained relatively unknown to later generations—even when they had achieved some modest success as legal practitioners. For example, Constance Backhouse reported a meeting of Toronto women lawyers in 1919, at which Clara Brett Martin sat alone and unrecognized by others in attendance.¹² Moreover, their numbers were very small: by the outbreak of the First World War, only five women had been admitted to the legal profession in Ontario and, by 1920, only twenty-two.¹³

The numbers were somewhat greater for women lawyers in the second wave, a period that lasted from the 1920s to the 1970s. The Law Society of Upper Canada's records in Ontario, for example, reveal that forty-nine women were admitted to the profession between 1921 and 1930, but only thirty-two were admitted in the following decade. Thereafter, there was a steady but not significant increase in numbers: forty-eight women in 1941–50, sixty-four in 1951–60, and ninety-eight in 1961–70. Thus, by 1970, seventy-three years after Clara Brett Martin's initial success in gaining admission to the Ontario bar, only 313 women had become lawyers in the province.¹⁴ Some of them enjoyed their legal work and achieved significant success. Yet, most of them would probably have agreed with Margaret Hyndman, an energetic and accomplished Toronto lawyer and one of Canada's first women KCs, when she suggested that women lawyers should "forget [their] sex and expect no quarter."¹⁵ According to Christopher Moore, Margaret Hyndman always "insisted on being judged as a lawyer, not as a woman lawyer."¹⁶

Beginning in the 1970s, however, women entered university law schools in increasingly large numbers, and, by 1985, for the first time at an Ontario law school, more than 50 per cent of the entering class was female at the University of Windsor.¹⁷ Although only 3.2 per cent of the practising profession was female in 1971, the percentage of female practitioners in 1986 was already 16 per cent.¹⁸ Indeed, although many of the women lawyers at the CLE program at Osgoode Hall in May 1986 had been called to the bar only recently, some of us remembered quite recent experiences of being one of just a few women in law school classes. For all of us, the room at Osgoode Hall full of two hundred women lawyers suggested real opportunities for fundamental change—a third wave of women who were becoming lawyers and who might bring a "new dimension to lawyering."

Nearly twenty years after this CLE program in 1986, it is clear that women lawyers have achieved recognition that was scarcely imaginable to those in the first and second waves. Women have been appointed judges of provincial and federal courts, including chief justice of the Supreme Court of Canada;¹⁹ partners and even managing partners of major law firms; tribunal chairs and chief executive officers; and deans and professors of law schools.²⁰ A woman lawyer was briefly prime minister of Canada, and two women lawyers have been appointed federal minister of justice.²¹ Beginning in the 1970s, Canadian law schools began to offer courses about women and the law and feminist legal theory, and women lawyers established a national policy organization and a national law journal.²² In the past two decades, moreover, many women lawyers have successfully participated in test case litigation and legislative lobbying on issues about gender equality, particularly in relation to equality guarantees in the Charter.²³ As a special American report published in 1999 concluded, women lawyers were "the story of the [twentieth] century":

They've gone from being exiled from the corridors of political and corporate power to treading them en masse. Once banished from the nation's law schools (and from Harvard Law School until as recently as 1950) they now make up nearly half of this year's entering class. Women lawyers have forced the most exclusive law firms to open their doors. Just as importantly, they've forced the most entrenched male partners to open their minds. (Well, most of them.)²⁴

Paradoxically, however, a stream of academic research, professional inquiries, and judicial taskforce reports in the past two decades has revealed how issues of gender equality in the law and the legal profession continue to present contemporary challenges. A number of academic studies suggest that women lawyers generally remain, in Margaret Thornton's telling phrase, mere "fringe-dwellers of the jurisprudential community."²⁵ Similarly, in their study of men and women lawyers in large firms in Toronto in the early 1990s, John Hagan and Fiona Kay concluded that women lawyers do not achieve the success accorded to their male colleagues, even when women invested in their careers to the same extent as men. The authors identify a "glass ceiling" for women lawyers in many of these firms.²⁶ The Canadian Bar Association's report in 1993 confirms this academic research, but it also warns that the "glass ceiling" is often experienced by minority women as a "steel door,"²⁷ pointing out how gender intersects with women's race, class, sexual orientation, language, dis/ability, religion, marital and/or parental status, age, and educational background to create additional barriers. More recently, in her study of men and women lawyers in British Columbia, Joan Brockman found persistent discriminatory attitudes towards women lawyers, not just among older lawyers who were members of the "old boys' club" and, thus, "relics of the past" but also among the "baby dinosaurs," younger male lawyers who were growing up to replace them.²⁸ Studies in the United Kingdom,²⁹ in the civil law jurisdictions of Europe,³⁰ and in the United States³¹ have reached similar conclusions. Thus, as Judith Resnick gloomily reports about the work of American judicial taskforces on gender bias, "a decade of academic and court-based documentation of deep-seated and endemic unfairness has not undermined the resiliency of legal culture." Although judicial task forces may "authorize inquiry, ask forbidden questions, [and] obtain information . . . [professional cultures] still remain impenetrable to profound change."³²

Such conclusions seem to confirm the limits of (merely) numerical equality in the legal profession—that is, even with an unprecedented number of women becoming lawyers in this third wave, the admission of women to the bar has not "engendered" the law or the legal profession. Instead, as these studies confirmed, gender remains deeply embedded within traditional legal norms and professional cultures. In this context, almost twenty years after the "defining moment" on 13 May 1986, the same question remains relevant: what difference does it make that women, as well as men, engage in the practice of law? Significantly, Carrie Menkel-Meadow, an American researcher, identifies some evidence that the "success" of individual women lawyers may be inversely related to the extent of their commitment to gender issues. As she asks rhetorically, "[a]re . . . women, who act like men, allowed to penetrate the restricted boundaries [of judicial appointment, law firm promotion, and academic success], while those who act more like women are kept out?"³³ Indeed, as she argues, the fundamental question is "whether women will be changed by the profession, or whether the legal profession will be changed by the increased presence of women?"³⁴ Such questions reveal how Virginia Woolf 's claim that women could enter the professions and "use them to have a mind of [their] own and a will of [their] own"³⁵ remains profoundly contested.

Interestingly, the presentations at the program in May 1986 (at least from our perspective twenty years later) reveal how some of these issues were already apparent. For example, John Hagan's preliminary research on sexual stratification among Toronto lawyers suggested that there was at least some evidence of differences in the career paths of men and women in the legal profession.³⁶ Cynthia Fuchs Epstein reported that although there was "no research [which] actually proves that men or women truly think differently," she nonetheless claimed that, as "outsiders" to law, women lawyers could bring to their work a different and more positive perspective, one that was less narrow, less insular, and less intertwined with "vested interests in the existing structure." Paradoxically, however, Epstein concluded that "women must become insiders because only as insiders can they translate their insights into programs."³⁷ Similar paradoxes were evident in the contrast between the detailed information about employment policies of law firms, government, and corporations (many of which provided for maternity leave and part-time work for women and sometimes for men) and the stories presented by women lawyers at the program about their experiences and the "automatic" derailing of legal careers for any woman who decided to pursue these opportunities.³⁸ Although the situation may have changed to some extent, these issues continue. The tenth anniversary conference of the Canadian Bar Association's Touchstones report revealed in 2004 how many of these issues remain challenges for women (and for some men) in the legal profession in Canada—the "alternative vision" of the 1993 Touchstones report has not yet become a reality.³⁹

In this context, the optimism in May 1986 that increasing numbers of women lawyers would provide a catalyst for "a new dimension to lawyering" has clearly not materialized. Moreover, as Margaret Thornton stated bluntly, "neither an increase in the number of women nor the passing of time can provide an automatic remedy."⁴⁰ Thus, the third wave of women in the legal profession, numerically almost equal to male lawyers, continue to confront many of the same issues that were experienced by much smaller numbers of women lawyers in the first and second waves.⁴¹ Thornton's analysis suggests that the problem is systemic and that, although individual women lawyers may achieve some success, systemic issues will ensure a continuation of the status quo in the legal profession overall.⁴² In this way, my questions in May 1986 may appear not just overly optimistic but fundamentally flawed. And yet I remain stubbornly attached to them.

Clearly, there are continuing challenges to achieve change in the legal profession and to mobilize women lawyers in achieving change. Moreover, the issues are bigger than the success of individual women lawyers—and they are just as important now as they were twenty years ago. Indeed, issues about gender and professionalism are increasingly recognized as important aspects of the history and sociology of the legal profession.⁴³ And so, for me, the room full of two hundred women lawyers at Osgoode Hall in May 1986 represents a "defining moment" for Canadian women lawyers. Like our challenging conversations in the pages of the Canadian Journal of Women and the Law during the past twenty years, it has provided me with both inspiration and energy for the past years of struggle. And for the future!