Saturday, September 6, 2014

Unequal Protection

Russell Robinson (Berkeley) has posted Unequal Protection, 67 Stanford L. Rev. (2015)

During the last 30 years, the Supreme Court has steadily diminished the vigor of the Equal Protection Clause. It has turned away people of color who protest systems such as racialized mass incarceration because their oppression does not take the form of a “racial classification.” It has diluted the protections of intermediate scrutiny in gender discrimination and abortion cases. And it has turned its back on groups who once benefited from “animus” review, including people with disabilities and poor people. Meanwhile, the only site of vitality in equal protection jurisprudence is LGBT claims. Yet the Court, writing opinions that are rarely in conversation with one another, has made no effort to justify this growing divide. I call attention to this re-ordered equal protection landscape, which contrasts sharply with the conventional understanding of equal protection tiers of scrutiny. 

Specifically, I identify three advantages that LGBT people enjoy compared to virtually every other civil rights constituency: (1) the Court has rigidly used the concept of a “classification” as a gate keeping device, but it has ignored this requirement in sexual orientation cases; (2) LGBT people can invoke animus, a standard that emerged from cases brought by people of color, poor people, and people with disabilities but that the Court no longer recognizes in such cases; and (3) LGBT cases leave open important questions, including the legal standard that would apply to remedial policies based on sexual orientation — quite unlike the Court’s adverse resolution of these questions in race cases.


These findings demand that law professors and legal scholars reconsider how they teach and write about equal protection.

September 6, 2014 in Ann Wardell, Gender, Theory | Permalink | Comments (0)

Thursday, October 17, 2013

Gender Quotas and Taking the First Step

The final post in guest blogger Anne Wardell's series on gender quotas and Australian women lawyers.

I can see now that there has been an imbalance in the opportunities presented to women in society.  I think law has come a long way in removing this imbalance and recognising women of achievement. There are so many more women partners and judges than when I began my legal career in 1985. Women are commissioners and deans and tribunal presidents.   This was achieved not by quotas but by strong and talented women raising their voices and demanding to be heard.

So although I think quotas would be useful in a political environment, I am still not sure how I feel about them in a legal one.  It has been many years now since I worked in a legal practice so I do not know if things at the ground level are better for women graduates or not. I now work in a global company which has a woman CEO, Nancy McKinstry, and many women in important roles.  Ms. McKinstry recently gave an interview to the International Business Times on Breaking the Glass Ceiling in which she referred to the need for more women to be in middle management in order for
them to reach the top.  This approach works in a company which recognises the talents of women and promotes them to middle management. 

Sadly there are too many organisations which do not seem to be able to take that first step and recognise the talents of women. It is this recognition which leads to advancement. Perhaps for these organisations a quota system would open people’s eyes and enable women to be advanced to positions from which further advancement is possible.

Anne Wardell is Deputy Editor in Chief of the CCH Law & Business team and co-administrator of the Law Chat blog. Previously, she was the National Director of Insolvency for the Australian Taxation Office and member of the Victorian Bar, specializing in insolvency and commercial law.

October 17, 2013 in Ann Wardell | Permalink | Comments (0)

Thursday, October 10, 2013

Changing my mind on gender quotas

Part III in guest blogger Anne Wardell's series on gender quotas and Australian women lawyers.

After reading Jane Caro’s article Promotion on — ahem — merit? It’s hard to see how … and thinking about the lack of women represented in my government I have changed my mind about quotas. The ‘old boys club’ is alive and well and operating in many parts of our society. I find it hard to believe that there are so few capable women on the conservative side of politics that only one is suitable for the Cabinet.  Many of the men in the Cabinet have been in politics for years and are former Ministers. They sit comfortably in safe seats and have ensured that they have the ear of the people in the party who count. Women on the other hand are usually given the more marginal seats to contest.  If they are successful then they are required to adopt an aggressive and combative style in parliament if they hope to be noticed by the power brokers. There is no quota system in place and women must play the male power game to advance.

The opposition party does have a quota system in place and women are more equally represented.  In fact it was the current opposition party which gave Australia its first female Prime Minister. Julia Gillard did have a combative style; perhaps this came from being a former union lawyer, and was well versed in the power game.  The difference as I see it is that the women who held office, and were in the Cabinet of the former government, were all quite different.  They had unique styles and personalities and although all agreed on policy issues, they had different areas of interest.  The women who have advanced in the conservative party seem to all use the same play book even down to the way they dress or style their hair.  I wonder if they think this is the only way to advance within this organisation which does not have quotas and seems to place little value on issues which impact on women as opposed to the community generally.

My concern with quotas has always been that you run the risk of people being advanced who are not suitable for the job.  I do not like any sort of favouritism or cronyism. I work hard and hope that my skills are acknowledged and rewarded.  I do not like the idea of someone advancing simply because of some biology that made them female or male. On the other hand I also do not like people being advanced simply because of who they know or what social demographic they come from.

If we need a quota system to ensure that competent women, who have all the required skills and attributes for the role, are advanced over men who are not so suitably qualified but are better ‘connected’ then I am all for that. I long for the day when we no longer have to discuss gender as being relevant to what people can achieve. If you are good at something then you should be able to pursue this and take it as far as you can go.  Being female should not preclude you from opportunities for advancement. You should not have to sit behind the scenes and make your contribution to work or society through a male mouthpiece.  You should not have to comply with some unwritten rules of behaviour or dress in order to gain a seat at the table. I want my government, my workplace and my media to be representative of my life experience and my experience of society today. History is full of brilliant women who have made enormous contributions to life as we know it.  I don’t want those women to be considered the lucky ones who managed to slip through.  I don’t want any women who have something to offer to miss out, the same way I don’t want any man who has something to offer to miss out.

Anne Wardell is Deputy Editor in Chief of the CCH Law & Business team and co-administrator of the Law Chat blog. Previously, she was the National Director of Insolvency for the Australian Taxation Office and member of the Victorian Bar, specializing in insolvency and commercial law.

October 10, 2013 in Ann Wardell | Permalink | Comments (0)

Thursday, October 3, 2013

Polka Dot Stockings as Contempt of Court

Part II in guest blogger Anne Wardell's series on Australian women lawyers.

After much debate the quota system idea was dropped and briefs continued to be sent based on the free will of the lawyers.  What I did not appreciate at the time of course was that the larger law firms tended to select which barristers they briefed based on the opinions of the partners, which of course were mostly men.  Occasionally they would experiment with a female barrister but she better win the case and be damned good with the clients. Of course this is a generalisation and many very good women barristers were briefed purely on merit. However many women barristers also practiced in family law which was viewed as a suitable area of the law for women.

I was an insolvency specialist and practiced in commercial law. This seemed to be a harder road to hoe for women at that time.  Often I would appear in the commercial lists and be one of only two women present. Interestingly I never experienced any sense of discrimination from the judges who treated all advocates the same.  I did however feel a great sense of indignation from the male barristers as to why I was appearing in a commercial matter.  I am sure times have now changed and this does not still exist.

I had been raised in a male-dominated family with three brothers and no sisters.  I was raised by a mother who had been taken out of school early because she was a girl.  She fought for my right to be educated and pursue whatever career I wanted.  I had decided in my teens that I wanted a career in law and was lucky enough to be able to achieve that.  At school and at home I was comfortable with the idea of being judged by merit and not given special treatment because I was a girl. 

I took this attitude with me into my early days as a lawyer. Perhaps it was the confidence of youth, but I was sure I could make my way based on my abilities and the fact I was female was not relevant.  At the time I did not believe I suffered any disadvantage because of my gender.

Looking back, with the benefit of age and experience, I can see that there was a different playing field in the 1980s for male law graduates and female law graduates.  I remember being asked in a job interview whether I intended to have children.  At the time I laughed it off as a silly question.  In fact most of us in our 20s were trying not to get pregnant.  A few years later I was told not to associate with the secretaries after work as it was not professional.  Again I did not think much of this and just complied. 

It did not seem to matter that the male partners were free to associate with the secretaries.  Women lawyers were required to dress in a certain way; no cleavage on display and no pants in court.  Some of my non-lawyer friends used to refer to women lawyers as ‘stick insects’ buttoned up from neck to
wrist. There was a famous incident at the time when a female lawyer was admonished in court by a judge because she had worn polka dot stockings in his court room. He may even have wanted to cite her for contempt of court, I can’t remember.  I do remember the controversy and heated debates it generated. I am embarrassed to admit that such was my conservatism at the time that I was not sure polka dot stockings were appropriate court attire.

At the time I did not care. I just wanted to practice law and do a good job for my clients.  I do remember questioning why the male partners used their secretaries to drop off their dry cleaning, buy their lunch or purchase presents for their wives. I do remember wondering why secretaries
preferred to work for the male lawyers and why they would find a simple request from a women lawyer difficult to complete.

Women lawyers were frequently labeled as ‘bitches’ by the female secretaries when asking for their work to be done in the same way as the male lawyers.  This did irritate me but I did not believe there was anything I could do to rectify this. It seemed to me that this was just the way of the world. Male partners were the norm and they could behave as they saw fit.

Anne Wardell is Deputy Editor in Chief of the CCH Law & Business team and co-administrator of the Law Chat blog. Previously, she was the National Director of Insolvency for the Australian Taxation Office and member of the Victorian Bar, specializing in insolvency and commercial law.


October 3, 2013 in Ann Wardell | Permalink | Comments (0)

Thursday, September 26, 2013

The Question of Quotas for Women in Australia

Today we  welcome guest blogger Anne Wardell, Deputy Editor in Chief of the CCH Law
& Business team and co-administrator of the Law Chat blog. Previously, she was the National Director of Insolvency for the Australian Taxation Office and member of the Victorian Bar, specializing in insolvency and commercial law.

Anne weighs in on the issue of gender quotas raised in a prior post in a four-part series. 

In Australia we recently had a new conservative government elected. At the swearing-in ceremony for the new Ministers it was starkly apparent that there would be only one female member of the Cabinet, which is a collection of the most senior Ministers of the government and the ones who make the decisions.  This caused a lot of comment in both the media and social networks.  Adding fuel to the fire the new Prime Minister appointed himself as the new Minister for Women’s Affairs.

He had spent much of the election campaign flanked by his two very attractive adult daughters in an effort one surmises to show his support for women.  He had been the subject of a now famous speech on misogyny by the former Prime Minister, Julia Gillard, who was the first female PM in Australia.  He did not help his cause when describing one young candidate from his party as having ‘sex appeal’.  This was excused as a ‘dad moment’ but many commentators argued that this highlighted his true view of women.

The lack of women in the new government has raised the issue of merit-based advancement versus quotas.  One of our social commentators in Australia, Jane Caro, wrote a thought-provoking article on this, Promotion on — ahem — merit? It’s hard to see how …

Reading this article made me think back to a time in my career when I was a new barrister (court attorney) at the Victorian Bar.  At the time it was a very traditional, conservative and male-dominated institution. Official correspondence was addressed to me by my surname; very English boarding school’esque. Women barristers were in the minority, much as women partners in law firms were also a minority.  This was despite the fact that women represented roughly half of the law graduates. 

The Victorian Women’s Bar Association was formed.  The male barristers on my floor asked me why we women needed a special club.  When notices about meetings were placed in the lift some ‘wag’ always wrote on them ‘Ladies please bring a plate’.  Whenever I returned from a meeting the men wanted to know what we had discussed. They seemed threatened by the idea of women meeting to discuss things that they were not privy to. Yet women for centuries have been subjected to decisions and meetings which impact their lives where they have had no voice; decisions
made for them about domestic and financial matters by men. 

One of the initiatives put forward by some women at the bar was the idea of introducing a quota system to ensure that women barristers received a fair distribution of the work on offer.  Lawyers (attorneys) would be required to send a certain percentage of their court briefs to women barristers.  At the time I was in my early 30s and was opposed to the idea.  I wanted to be judged on my own merit and make my way because I was a good barrister, not because of some system which would force solicitors to use me.  I was vocal in my opposition to this, which pleased my male colleagues I am sure.

September 26, 2013 in Ann Wardell | Permalink | Comments (0)