Wednesday, October 7, 2009

Doing Gender (in court)

In Kathleen Daly’s 1997 article, Daly cites Candace West and Donald Zimmerman’s work on the construct “doing gender:”

“[Gender is not the] property of individuals . . [but rather] an emergent feature of social situations: …an outcome of and a rationale for …social arrangements…a means of legitimating [a] fundamental division … of society. [Gender is] a routine, methodical, and recurring accomplishment (p.126) … not a set of traits, nor a variable, nor a role [but] itself constituted through interaction. (p.129)

Yesterday, I ‘did gender’ in an immigration court in California. I am currently representing a MTF transgender client seeking asylum in the United States. As soon as our case was called, we (student partner, supervising attorney and DHS counsel) were asked to approach the bench, where the judge immediately asked us if our client was transsexual. We explained that our client is, indeed, transgender and respectfully requested that we be able to submit documents in our client’s chosen (female) name and (female) pronouns. The judge was extremely accommodating and understanding, and I considered how our presentation as very energetic, possessed female law students influenced her decision to re-arrange her calendar in order to suit our semester break and scheduling requests.

I also considered how we were “doing gender” not only in front of the judge, but also in relation to our client, and how her concept of “doing gender” has many similarities to ours. She later told us that as the three of us stood at the judge’s bench, she was looking at each of us and thinking about what kind of woman she wanted to look like. In fact, she relayed that she had a contest in her head of which one of us looked the most “like a woman.” Our outward ease with our femininity, as well as the business suits we all wore which expressed not only our gender but also our class and situational power as attorneys, was something that our client, as a young trans woman, identified with and desired to be part of. It was fascinating to me that as we were negotiating her female identity with an officer of the court, she was negotiating her appearance in relation to us.

Thoughts of the gender continuum between client, attorney and judge were also spurred by this recent article. The authors discussed the female judiciary, and found that though women were typically “less qualified” (read, lower ranked law schools, prestigious clerkships and jobs), they performed on par with male when judged in certain categories. The categories used by the authors were productivity (authored opinions), influence (cited opinions), and independence (dissent from opinions of other judges belonging to the same political party). Possible explanations include the richness of female judge’s life experience, or that those looking for the highest qualifications may actually be judging the wrong attributes on what makes an excellent judge.

Yesterday’s experience made me pause to consider these assertions. Was our judge using her sensitivity and potential “life experience” to show respect and concern for our client’s safety? Quite possibly; she used her quick judgment to assess that while she had a file of a male client in front of her, but she clearly saw a young woman before her. Would a male judge have called us to the bench and spoken to us about our client’s gender identity off the record in order to protect her privacy and safety? I have absolutely no idea. Do I know how greater hope for this judge granting our client’s petition for asylum because of the sensitivity and understanding displayed yesterday? Yes. Gender was an important aspect, on many levels, of our interaction in court yesterday, and I imagine it will continue to be as the case progresses.


Anne Kildare said...

Your post made me reflect on how successful female attorneys present themselves in the courtroom.

During intro week, King Hall had three attorneys speak to us about their jobs. Two were women.

One was confident and energetic. She was a natural storyteller, and it was easy to imagine her commanding the courtroom.

The other seemed shy and timid. She told a story about her first trial (during a King Hall clinic). She admitted that she was less commanding than other trial attorneys, but insisted that it worked to her advantage. In her first trial, she cross-examined a witness and got him to make a damaging admission because "she seemed so nice."

Two summers ago, I was a extern for a judge with a reputation for being tough on attorneys. All summer, I watched him chew up attorney after attorney. Then one day, a young, female attorney talked him into changing his jury instructions.

I remember being struck by her overt femininity. She was calm and spoke with a soft voice. Her demeanor was submissive, but she stood firm on her argument. That summer, she was one of the only attorneys who successfully talked the judge into changing his mind.

I'm not sure I understand what you mean by "doing gender." But these women seemed to know how to incorporate their femininity into their identities as successful trial attorneys.

Eve said...

After spending most of last summer in the courtroom, I became very conscious of the performance of gender in court. I came to law school interested in ADR, hoping to never litigate more than once or twice a year. My hesitance to litigate is mainly because I do not believe many family law matters should be handled in the courtroom. However, the other reason was that I did not consider myself to be a prototypical litigator, largely because of my gender performance.

When I think of a litigator I think of someone who is aggressive and contentious. This norm of “the litigator” is conveyed through the performance of masculinity. I had a different reaction with female judges and attorneys this summer than you. I found that many of them appropriated this masculine performance, and were far less sympathetic to my clients.

On the other hand, I saw many female attorneys around my age who performed a spectrum of gender expressions. For example, rather than being too aggressive, many younger female attorneys would advocate mediation in situations in which they may have won more at trial, but knew it would ultimately be emotionally better for their clients to settle; others would dress less conservatively so that they could relate more to their clients and not create a visual class barrier. Although I believe that most behavior in the court is an act, their varied interpretations of the litigator provided a model from which I could view myself in the courtroom.