Gender Bias Task Force: Comments on Courtroom Environment

I. Introduction I was delighted to be back in Lexington and for the opportunity to return to my alma mater. Before my son graduated from the law school five years ago, I would stop by often to visit him and to enjoy walking around Washington and Lee and spending some time on the Maury River. I have missed being there the last several years, and I thank Professor Morant for the invitation and opportunity to return. The Court Environment Committee focused not on gender being a factor that the judge considered in reaching a decision, but on whether gender affected or was perceived to have affected the process by personally having some impact upon the players - lawyers, litigants, judges, clerks, magistrates, witnesses, jurors, and others.1 Did gender play a role in unfairly affecting the behavior and interpersonal relationships of a broad range of participants in the legal system? Did the process have the appearance that one party or another had an unfair advantage or was disadvantaged or was simply treated unfairly or disrespectfully because of the gender of any of the participants? Often the various participants in the same proceedings viewed the proceedings differently. For example, the male attorney and male judge may have perceived that the female attorney was treated fairly and evenhandedly with the other participants. However, the female attorney and her client may well have felt "disadvantaged" or "marginalized" when the male judge and male attorney, while waiting for the arrival of a witness, discussed their latest golf outing or fishing trip or the results of the latest football game.2 From our survey, the judge or attorney would not perceive such conduct as constituting gender bias, but the female attorney who was excluded from the conversation - because as a female she "has no interest in those subjects" - feels very much disadvantaged on the basis of gender when her client says "perhaps I should have hired a male attorney who will receive more friendly treatment from the judge." I can assure you that scenario is repeated every day in many courtrooms throughout the Commonwealth. In addition to examining interpersonal relationships between the participants, we looked at "economic discrimination" based on gender.3 We asked the questions, "Is there a disparity in how men and women are compensated within Virginia's judicial system for doing the same job? Is there a difference in opportunity for professional advancement between men and women?" These inquiries entailed looking at differences in pay for different positions that more often might be filled by men or women, ranging from court appointed counsel to judgeships, from clerks and deputy clerks to magistrates, and from commissioners of accounts to guardians ad liter.4 We looked at the selection process for judges in an effort to determine whether the selection process itself had a built-in bias that favored men over women.5 After viewing what I have denominated as "economic discrimination," we looked at what I would call the "physical plant" - the courthouse and its "trappings" or "cartilage."6 By this, I mean such things as the courthouse design and its facilities, including such features as whether the courthouse design is more male friendly with regard to witness and jury boxes, witness amplification systems, and child care facilities (or the lack thereof). Here we were not looking for purposeful discrimination or bias but an attitude that showed an institutional insensitivity to different needs for the male and female participants. These included such things as disfavoring unisex bathrooms, particularly when they were just offthe jury room,7 or having a security system where the guards either have no respect for or are not trained to respect the personal privacy of women, e.g., when the officers dump the contents of their purses on the security table.8 We also looked at the "literature" of the courts. This entailed examining such documents as judges' benchbooks, clerks' manuals, employees' handbooks, jury instruction books, form orders, policy and procedure manuals, and a host of pamphlets that are distributed through the courts either by the courts themselves or by related agencies - to determine whether they were gender-neutral or gender-friendly. …