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Gender Bias in the Judicial System
Joanne Tosti-Vasey, Ph.D., October 12, 2001 --Testimony before the Supreme Court of PA Committee on Racial and Gender Bias in the Justice System: I am here today to speak about perceptions of gender bias in the judicial system. These are subtle gender-bias behaviors that have occurred here in Centre County and in surrounding counties. These types of behaviors were reported to NOW by female professionals and litigants in the local court systems that were concerned about this type of subtle bias but did not feel comfortable in personally being public on the issue. These comments have come to our attention either through face-to-face discussions or over the phone from lawyers, court personnel, and the public.
  Bias behavior can be both overt and blatant or it can be subtle and in many instances unintended. Sexist jokes and refusal to hire a women with a young child are examples of blatant forms of gender bias. These don't occur as often as they used to in the judicial system due to changing law and increased awareness of sex discrimination. Other forms of gender bias, however, are not so clear. Often times, treatment of men and women is based on a stereotype of expected behavior for one sex or the other. This results in comments or behaviors that treat men and women differently. Attitudinal biases, differences in language, and attributions towards men and women may differ. These types of behavior end up biasing the treatment of both men and women. I would like to give a few examples of the types of gender bias that have occurred in this region of the state.
   First, the Old Boys Club is still active. It occurs informally in the halls and chambers of the judicial system. Discussions outside of the courtroom often occur between judicial officials and attorneys either before or after cases are heard. The differences between the discussions that occur with the female attorneys appear to be subtlety different from that with male attorneys. For example, the judicial official might discuss the Penn State football game for 15 to 20 minutes with the male attorney. The discussions with the female attorney would more likely deal with court cases and/or are very short in nature.
   This type of informal conversation gives the perception that the female attorney is not the judicial officer's "pal," particularly when one attorney on the case is male and the other is female. Clients with female attorneys have said, "If my attorney was his/her pal or buddy, then I would have fared better." This is an appearance of bias issue, even if there is no actual bias behavior in the courtroom. You cannot directly point at the bias when it is occurring, but individuals wonder if this collegiality results in differential treatment. I don't know if it does or not. But I have received calls on the NOW hotline where individuals have said to me, "It [the case or outcome] just didn't seem fair." But the individual could not directly point to any specific behavior that resulted in this feeling.
   A second concern is the use of stereotyped language. Judges and attorneys, whether male or female, use negative language to label assertive women. The assertive woman could be an attorney, advocate, litigant, or a woman who receives some sort of service from the judicial system. She might be called a "bitch." Her concerns may be minimized because "she's got out of control hormones." Or they are trivialized because "It's just her time of the month." Note that these statements are never done in court on record but are heard outside the formal setting. Although not on record, attitudes that create this form of pejorative language may also bias decision-making.
   A third area of concern is related to the physical attributes of men and women. There are two types of comments that deserve mention. The first deals with a woman's size. The second deals with class and dress.
   First - size comments. Judges, court personnel, and attorneys, both male and female, have been heard to make comments about a woman's size both large and small. The women being discussed are both female attorneys and clients. Examples include, "She's a tiny woman attorney." "She's a hunk of a woman." "She needs to lose weight." All of these statements objectify the woman. They are all a putdown. And in some cases, they may be part of a hostile work environment and thus could be considered a form of sexual harassment.
   Second are comments on dress. Judicial staff often makes these types of comments. They are judgmental statements that the person is wearing the "wrong" kind of clothing, that the person "smells bad," or that the clothing isn't "good enough." The comments focus on the consumer of court-related services. Although these comments are made about both male and female clients who appear to come from a lower income level or background, they appear to be made more often about a woman. Time of day also seems to have an effect on this. If it is in the afternoon and a man comes in who is wearing "inappropriate" dress, then the staff person is more likely to give him the benefit of the doubt, assuming that he is coming to the judicial office directly from a blue collar job. The woman who is "inappropriately" dressed who arrives at the same time is not given this attitudinal exception.
   I'd like to mention a concern about attitudinal biases based on gender-role stereotyping. Attorneys and consumers of court services sometimes ask to have their cases rescheduled for personal reasons. When it is a woman and she has an issue with childcare, comments by the judge make it appear as if this is an inappropriate concern. For example, when the woman asks to reschedule because she has to pick up her child/children, comments such as, "You didn't make arrangements?" or "Why didn't you foresee this conflict occurring before this?" are made. No questions, however, are asked when the man, particularly a male lawyer, requests a rescheduling because of an "appointment."
   Finally, gender bias does, to some extent show up, in the courtroom where less respect is shown for the female litigant or lawyer. The judges interrupt female witnesses and litigants more often when they are on the stand. And female lawyers have reported that if they are doing what appears to be a very good interrogation, the judge will more likely interrupt the flow and ask his own questions.
   I have not seen any research on this biased type of behavior in the courtroom, but it has been documented in the classroom. Janice Streitmatter defines gender bias in "Toward Gender Equity in the Classroom," as "the underlying belief that males and females differ in non-physical ways such as talents and interests." She then goes on to say, "It is the unconscious application of gender bias in the classroom on the part of both the teacher and the student that perpetuates gender inequality." The research on classroom gender bias then reports multiple, unconscious and unintentional forms of biased behavior. This includes greater attention and time being spent with boys and a greater willingness to accept boys' ideas and opinions during discussion time.
   This socialization in the schools appears to have resulted in similar adult behaviors in the courtroom. Unconscious and unintentional, but real biases in hearing what women have to say.
   NOW would like to see this information used to improve the training of all employees within the judicial system in order to reduce, if not eliminate bias, towards woman professionals, litigants, employees, and consumers of the judicial process. Thank you for your time and commitment to this project.
Joanne Tosti-Vasey is the Treasurer of Pennsylvania NOW, and a PAD board member.