Although Women’s History Month is coming to a close, the issues faced by women in the legal profession are still in dire need of continued conversation.
Let’s take a look at female trailblazers who left their mark on law, how far the legal industry has come, and where we are at today.
Outwitting the Status Quo
Women have always been a part of the legal system, but remained formally prohibited from the actual practice of law for many years. Nevertheless, women found innovative ways to circumvent existing rules while advocating for more equitable ones.
To say that Margaret Brent blazed a trail for American women in law is an understatement. Not only was she the first woman to appear before a court of the Common Law, she went on to become involved in over 100 court cases and acted as an attorney to Lord Baltimore, the proprietor of Maryland.
In a 1796 case involving a series of property lawsuits, Luce Terry Bijah Prince delivered an oral argument before U.S. Supreme Court Justice Samuel Chase, and was the first black woman to do so. Prince did not only outshine the two white men representing her husband, she also “made a better argument than any other lawyer at the Vermont Bar,” according to Justice Chase.
1869 was also a big year for women in the law. After studying the law in her brother’s law office for two years in lieu of formal legal training, Arabella Babb Mansfield became the first woman on record to pass any formal bar examination when she was admitted to the Iowa
bar. That same year, Lemma Barkaloo became the first female law student in the nation. Barkaloo did not complete her degree, but she did pass the Missouri bar after a year of study and began practicing just months before her death of typhoid fever at age twenty-two. The first formal law degree earned by a woman in the United States was awarded to Ada Kepley a year later.
The same rights were not extended to women across the country. For aspiring female lawyers in states like Illinois, women had to look outside of the traditional paths to the legal profession in order to pursue their passion for law.
Myra Bradwell was one of the most influential women of her day, advancing the impact of women in law through both formal and informal channels. Although she passed the Illinois bar exam in 1869 just weeks after the first female lawyer was admitted to the Iowa bar, Bradwell was denied admission because Illinois common law dictated that she could not be held responsible for any contracts into which she might enter as a married woman.
Regardless, she continued to practice without a license and published the Chicago Legal
News—all the while appealing her case to the Illinois Supreme Court and later to the United States Supreme Court. The U.S. Supreme Court eventually decided against Bradwell, determining that states could continue to deny women the right to practice law. By then, however, the Supreme Court of Illinois had come to its own senses and granted the respected legal scholar and renowned publisher a license to practice law nunc pro tunc in 1890. Her license dated back to 1869 when she first started practicing.
While Bradwell was waiting on the U.S. Supreme Court decision, however, Alta M. Hulett drafted and secured the passage of a bill providing that no person in the state of Illinois can be excluded from any profession because of sex. At just nineteen years old, the law Hulett drafted and pushed through the legislature in 1870 also enabled her to become the first female lawyer in Illinois—and one of the first women licensed to practice law in the country.
When a man resigned his seat as justice of the peace to protest woman suffrage in a small Wyoming mining town , Esther McQuigg Morris seized the opportunity to become the first woman in the United States appointed to a judicial position in 1870.
The first woman was not appointed to a federal court, however, until 1928, when President Calvin Coolidge nominated Genevieve Cline for a seat on the U.S. Customs Court, which she presided over for 25 years. The U.S. Court of Appeals in the Sixth Circuit followed suit in 1932, when Florence Allen was appointed as the first female judge to a federal appeals court. Sandra Day O’Connor shattered the United States Supreme Court’s glass ceiling when she was nominated by President Reagan in 1981, fulfilling his campaign promise to appoint the first woman to the highest court in the United States. On March 12, 1993, Janet Reno became the first female Attorney General.
Although the number of women entering the legal profession has steadily increased over the years, more senior positions at larger law firms remain antiquated. Women are consistently underrepresented among leadership in BigLaw, make less money than their male counterparts, and are only half as likely to get promoted as partner. The higher you get up the totem pole of the legal profession, the less women you find.
According to the most recent statistics collected by the ABA’s Commission on Women in the Profession, women make up almost half of all summer associates at 45.3% and 47% of law school graduates. The Harvard Business Review found a rising number of female law school graduates has led law firms to recruit an average of 60% women. Despite recruiting more women straight out of law school, 80% of the lawyers are male by the senior partner level. The proportion of women drops significantly from 45% of associate positions at law firms being held by female associates, to women only comprising approximately 20% of partners, 18% of equity partners, and a mere 4% of managing partners at the top 200 largest law firms in the United States. These dismal numbers have remained stagnant for years.
Among women who do successfully attain equity partnership, the compensation gender gap between male and female equity partners is still vast. Remarkably, the typical female equity partner currently earns approximately 80% of what a typical male partner earns—despite exceeding the average total hours billed by male partners.
This disparity is not limited to the highest earners in the legal profession. A recent analysis of invoices from more than 3,000 law firms demonstrated that no matter what tier firm women work at, female lawyers are billed at 10% less than male lawyers per hour. And while 2% of men at top tier firms billed at over $1,000 an hour, virtually no women makes that rate, and roughly half of men at top tier firms charge more than $500 an hour compared to less than a third of women at the same firms. Should a woman still choose to stay with a firm, her hourly rate may still only “rise only moderately, if at all.” The only area of equality found in the analysis is at the lowest tier firms, where neither gender is rewarded for tenure.
While the oft-cited 77-cent statistic may seem inapplicable to lawyers, the legal profession has only achieved less than half a cent of progress towards closing the gender gap according to the ABA Journal’s analysis. Despite putting in an equal or greater number of hours, the average weekly salary of female lawyers is only around 79% of the salary earned by male lawyers.
When all law-related jobs are included, the median pay of women in the legal profession drops to 51.6% of the pay received by men. Even breaking down legal professionals apples-to-apples, female legal support workers make 73.7% the pay of male legal support workers, while female judges, magistrates, and other judicial workers earned 71.8% of pay to men in those occupations.
That said, women in the legal profession who desire a salary that is more comparable to their male equivalents fare best as paralegals or legal assistants—one of the few legal careers in which women earn 94% of pay earned by men who hold the same position.
Progress Creeps In
Since its first female members in 1918, the ABA has spearheaded the promotion of gender diversity and equitable representation of women in bar association leadership. Although only 32.97% of ABA members are women, women constitute 46.6% of committee chair appointments and 52.3% of presidential appointments. However, women still only make up a quarter of overall section and division chairs of the ABA Board of Governors.
This progress towards gender diversity has also begun to spread beyond the bar association into different sectors of the legal profession. Approximately one in five Fortune 500 companies has a woman as its general counsel. Women also make up an increasingly greater portion of law school administration in many positions. The percentage of women who are law school deans has tripled since 1999. Women hold one in five law school dean positions, 45% of law school associate or deputy dean positions, and 66% of assistant dean positions.
More women are also infiltrating the judiciary. Three of the nine U.S. Supreme Court seats are held by female justices. Women also make up around one-third of active Circuit Court of Appeals judges and a quarter of Federal Court judges. State courts fare only slightly better than Federal Courts with an average of 27% of judicial seats held by women.
Tackling the Gender Gap is More Important Than Ever
Tackling the gender gap in the legal profession is becoming more important as the number of women going to law school continues to boom. In fact, women are projected to outnumber men in law schools by 2017.
Statistics only tell part of the story. To get a complete picture of women in law, we have to look beyond the numbers—as damning as they may be—to the innovative women, as well as men, working to increase gender diversity and empower women in the legal profession.
The ABA has laid the groundwork for a number of programs and initiatives supporting women in the legal profession. The ABA’s Commission on Women in the Profession provides a national voice for female lawyers, and the Task Force on Gender Equity addresses continuing gender equity issues that exist in the legal profession and in society at large.
The ABA created the Women of Color Research Initiative to examine advancement and retention issues among women attorneys of color. This initiative has produced two reports dealing with women in law firms, a toolkit, and other useful resources. The ABA’s Grit Project educates female lawyers and law students about the “science behind grit and growth mindset,” providing them with the tools to assess and learn these traits. In doing so, the Grit Project is working to enhance the effectiveness, retention, and promotion of women lawyers. The Section of Civil Rights and Social Justice Committee on the Rights of Women and the Women Rainmakers group in the Law Practice Management Section also provide additional education and networking opportunities for women.
As the face of the legal profession continues to change, women’s initiatives have already begun to adapt to the needs of women in the profession. Local organizations and groups targeted to specific firms or offices have begun working alongside countrywide associations to continue promoting gender diversity in the legal profession.
At the national level, there are a variety of platforms to advocate for gender equality in the legal profession:
- Women’s Legal Defense and Education Fund
- National Asian Pacific Women’s Forum
- National Association of Minority and Women Owned Law Firms
- National Association of Women Judges
- National Association of Women Lawyers
- National Bar Association Women’s Division
- National Conference of Women’s Bar Associations
- National Women’s Law Center
There are also many examples of enterprising organizations that work to promote women in law:
- Ms. JD, a nonprofit organization dedicated to the success of aspiring and early career women lawyers.
- Coalition of Women’s Initiatives in Law, which helps to retain female attorneys and advance in the legal industry.
- Center for Legal Inclusiveness, a nonprofit dedicated to advancing diversity in the legal profession by educating legal organizations on how to create cultures of inclusion, and even professional consultants who train women to advance women in the legal profession.
Law firms themselves are also making substantial progress in terms of putting more responsive initiatives in place. A list of 50 Best Law Firms for Women compiled by Working Mother and Flex-Time Lawyers recognizes law firms for their family friendly policies and care.
Unexpected change agents have also helped the legal profession to grow as well. One prime example is the technology industry, which was taking on the gender gap in law firms back when most legal professionals were still grappling with the shoulder-padded power suits and big hair of the 1980s. In recent years, companies like Microsoft have continued this trend by providing law firms financial incentives for increasing diversity in law firm leadership.
Just as numbers do not tell the full story of women and law, simply fixating on the ratios of women in the profession does fully address years of systematic inequality pervasive in the legal system. Many formal barriers to women entering the legal profession have become almost nonexistent. Nevertheless, subtle systematic barriers continue to inhibit women from excelling in the legal profession. While the gender landscape in the legal profession is clearly changing, there is an irrefutable amount of work that still needs to be done to continue empowering women in law.
Featured image: “on the scale of justice” from Shutterstock.