Recent revelations about the breadth and depth of sexual harassment across the legal profession are confronting. These stories expose a profession with a rampant toxic masculine culture where women are not seen as peers or legitimate legal professionals.
These issues start at law school. This is where future lawyers begin to develop their professional identities. The current crop of law students will go on to hold positions of power and influence in our society, our future leaders. Judges, politicians, disruptors, change-makers. It is high time for a new type of law school that actively uses a gender lens to introduce these students to new ways of being a lawyer and new ways of thinking about law.
You can’t be what you can’t see. At law school, women as lawyer role models are not equally present, much less visible.
Visibility is central to my argument. You can’t be what you can’t see. At law school, women as lawyer role models are not equally present, much less visible. In addition, intersections between women’s lives and the legal system are also barely noticeable.
This lopsided visibility contains at least two implicit messages that feed the boys club culture of the legal profession. The first is that the best kind of lawyer is mostly not a woman. Celebrated female lawyers are exceptions, not commonplace. Susan Keifel, the first woman to become Chief Justice of the High Court, who made visible the unacceptable behaviour of a powerful male colleague, is one exception.
Despite a long history of exclusion, women now make up 60-65% of law students in Australia. The stories of the women who disrupted this exclusion and challenged the male lawyer archetype should now be compulsory and built into law degrees.
The second implication is that it is not essential for a lawyer to know about the types of law that most commonly intersect with women’s lives. Australian law students are not compelled to study family law, family violence law, anti-discrimination law, employment law, human rights law. These subjects are often offered as extras, add-ons. They are deemed not mandatory, not necessary, less visible.
The Australian Law Reform Commission was critical of these problems more than 25 years ago, identifying entrenched gender bias that is built into in legal education. One example was an employment law textbook that treated the gender-neutral ‘worker’ as a full-time employee with continuous involvement in the workforce over their lifetime. This is hardly the typical experience of women and paid work. Or a criminal law examination paper that used hypothetical scenarios that included 12 men and only one woman, a housemaid.
My own research reveals these gendered stereotypes are stubbornly persistent in contemporary law courses.
It is clear that the content of compulsory law school courses needs to be reworked, to build in a conscious focus on women and the law.
How should we address the lesser visibility of women lawyers and women’s legal needs at law school? It is clear that the content of compulsory law school courses needs to be reworked, to build in a conscious focus on women and the law. Margaret Thornton wrote important papers on the subject in the 1990s, including Dissonance and Distrust: Women in the Legal Profession while Regina Graycar and Jenny Morgan published their important book The Hidden Gender of Law in 1990. It is now well past the time for this approach to become mainstream.
Teaching methods also need to change. One alternative teaching option already exists – clinical legal education. This is where law students are taken out of the classroom and away from their textbooks and theories about law, most of which were created by privileged men from the past. Instead, they are immersed in living law, placed in social justice legal contexts, such as community legal centres and legal aid. A feminist law school is all about practice, not just theory.
This kind of learning is powerful. It exposes future lawyers to what really happens when the lives of everyday people, especially women, clash with the legal system. The lawyers who work in these places need to be experts in those very areas of law that are not viewed as necessary at law school, taught only as add-ons. Women’s law is core business. Their clients are the people that our current lawmakers cannot see from their perches within bubbles of mostly white, mostly male privilege.
Clinical legal education not only aims to build a social justice sensibility into the hearts of future lawyers, it has another important effect. The majority of lawyers who supervise students in these legal practices are women. Women clinical legal educators are role models. They show future lawyers how women practice law differently, for the benefit of all community members, especially women. Students are inevitably immersed in the way that women practice law, exposed to women lawyers in action, working towards a better legal system for women.
Unfortunately, clinical legal education is not compulsory in almost all Australian law schools. This needs to change. We would never dream of training doctors without the integration of compulsory clinical experiences with living patients from the very start of their medical degrees. Yet, this is exactly what happens in legal education.
There is much more to creating a truly feminist law school. And the social justice reach of clinical legal education is much broader than discussed here. But if clinical legal education became compulsory at all Australian law schools, that would be a great start. This could become the first consciously disruptive step in an overdue clean up and clean out of the boys club within the Australian legal profession.
There are many examples across Australia and the world where law schools have gender law streams of study, subjects, and dedicated academics. There are also many research institutes focused on gender inequity. But a whole of law faculty approach is missing.
It’s time for a proactively feminist law school.
