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Not Taking a Break from Feminism: Reflections on the Criminal Law on the Aboriginal Plains: Gavigan at the Berks

[Part II in a series.  For part I, click here]

Following the IFLS co sponsored panel at the Berks (Cutting Edge Contributions and Critical Reflections in Canadian Feminist Legal History, featuring Constance Backhouse (University of Ottawa Law), Mary Jane Mossman (Osgoode) Bettina Bradbury, York University (History at York University)  & Shelley Gavigan (Osgoode), the blog is posting texts from the talk.  Earlier this week, we posted Mary Jane Mossman’s  Gender and Professionalization Projects: Rethinking Stories of Early Women Lawyers.  Today, Osgoode’s Shelley Gavigan on….

Not Taking a Break from Feminism:  

Reflections on the Criminal Law on the Aboriginal Plains

*we have left the references intact although they are not clickable. Just scroll down to the bottom of the page for all the references. 

Introduction

My title derives its inspiration from the challenge issued by Harvard Law Professor Janet Halley in her book, Split Decisions: How and Why to Take a Break From Feminism.[1] Professor Halley is an American legal theorist whose book reflects her engagement with what she regards as a number of, fundamental flaws in feminist premises and theorizing with respect to sexuality, notably queer sexuality, and hence the importance of taking a break and to work outside feminist frameworks. When I first heard her present this work in its early stages – on this campus – I confess that I was more provoked than inspired. My research and writing since the mid 1980 has been engaged by and with the concerns of feminist theory and activism in law: the legal regulation of abortion, patriarchal relations, family forms, same sex relationships, lesbian parenting, women and welfare, together with a few forays into social justice, poverty law and clinical legal education. On the feminist spectrum, I have usually pitched my tent in the socialist feminist camp (a camp I might add that did not figure in Professor Halley’s critique of feminist bodies of thought).

For this book,[2] I spent the better part of a decade reading and working through lower criminal court records from 19th century western Canada, trying to understand the context and the events in these records, trying to find something more about the participants, trying to identify themes from within the seemingly mundane, seeking to resist the self-evident ways of organizing criminal law, not wanting to write a token chapter devoted to “women”. The more immersed I became in the court records, the more I was drawn to the ones that in different ways involved First Nations or Aboriginal participants – because I felt that I was seeing something new – or at least new to me – in these records.   Very few of these records involved women as central actors, and only slightly more than a handful involved women as accused persons. So, it is fair to ask: Have I (too) taken a break – or drifted away – from feminism? In some ways, this book does represent a break from my earlier work – both methodologically and in its focus – it represents my first real foray into archival research and into the law-state-First Nations relationship. And, to state the obvious: I am not an Aboriginal woman.

However, in as many ways, it represents a continuity of the pre-occupations and theoretical frameworks that have informed my life and my work: a commitment to interdisciplinarity, to the interrogation of the form and content of law and socio-legal relations, the contradictory nature of law and legal regulation, to historically informed analysis, and the importance of human agency. I do not suggest that this book involved the simple use or application of tried and tested research methods and theoretical frameworks to a new subject matter. On the contrary, it took me a very long time and lots of work to produce what I wanted to be a respectful analysis and representation of the experiences and agency of the First Nations people that I found in the court records. But this project was determined to move me out of my ‘feminist’ comfort zone, where I had only researched and written about expressly feminist issues. I had to sort out how to identify the relevance of gendered relations. I wanted to avoid carving out women (or the cases in which they were involved) or to write discrete chapter(s) on gender or women but rather to attempt to integrate attentiveness to gendered relations throughout the book.

I drew on a wide range of archival, other primary and historical sources while endeavouring at the same time to stay close to my data. And, it was only at the very end of the process, when I was trying to think through why – in spite of my commitment to a particular organization for the book – I found myself committed to writing a separate chapter on six accused women’s stories, that the intellectual penny dropped for me – and I realized that the stories of the six women actually advanced the argument of the book. I say in the book that it tells a little known story, relying on voices seldom heard. It is a study in low law – in the sense that Douglas Hay uses that term.[3] The research for this book derives from the court records of a lower territorial trial court – in its everyday application of ordinary criminal law – where lawyers were seldom present, especially in the early period, where accused persons appeared as prisoners, without counsel, with or without interpreters, where appeals to higher courts were not available, I could go on (and I do in the book). I should also say by way of contextualizing the work – struggling with the possibility that all scholarship is in fact autobiographical – that this research returned me to the kinds of issues and challenges that I had encountered in law as a young feminist lawyer practising criminal law on the Aboriginal Plains in the 1970s: I was a low law lawyer, I teach poverty law (inevitably low law) and I am a legal historian of low law.

Lessons From Feminism?

(i)The Importance of Method in How a Story is Told  I accept completely the insistence that legal historical research into court records work with broader contexts and take a “broad view” of the evidence in court records.[4]   This I attempted to do. Inspired by the insights of feminist legal scholarship, I departed from conventional legal methods to identify and analyze this complex relationship. I decided not to use the analytic and substantive categories of criminal law (e.g. offences against property, offences against the person) as its organizing principle. I was interested in taking an approach that would allow me to identify the relations (familial, property, employment) in the context of the alleged offences contained in the criminal court files. However, the question of how to find, identify, and interpret forms of participation and treatment of subordinated peoples, such as Aboriginal peoples of the Canadian Plains, in the criminal processes required another methodological decision.   I looked beyond the dyadic relationship between the state and the accused in orderto capture a wider spectrum of Aboriginal involvement and participation in the criminal law. And, when I did this – when I moved away from both a preoccupation with particular kinds of offences and a traditional focus on the accused – I found more Aboriginal people in the court records – informants, complainants, interpreters, and witnesses, in addition to accused persons – and notably more women. But I had to read all the records to do this. And, finally, I suppose the important point I want to make here is that even though I was not engaged in a project that might easily, if at all, be characterized as feminist, I never stopped bringing a feminist lens and a feminist sensibility to the research.

 

(ii) Adjusting the Research Questions As I worked my way through the historiography, wrestling in particular with two dominant themes in the literature(criminalization and sexualization) I was struck by a question posed by Jean Barman in a piece in which she analyzed the racialized and sexualized construction of Aboriginal women in 19th century British Columbia, question that raises both epistemological and methodological issues: “… what happens when we turn the past on its head and make our reference point Aboriginal women instead of Aboriginal men?”[5] Historians interested in accepting Barman’s challenge face methodological hurdles not least of which is the fact that the names of First Nations women and children are often ‘hidden from history’[6] or, as Hugh Dempsey has observed in reference to the lost name of the mother of the important Cree leader, Big Bear, they have been “forgotten in the mistiness of the past”.[7]   The women of the First Nations are difficult to locate,their voices almost indiscernible, in the legal history of the Plains. Val Napoleon captures this concern when she argues of the context of aboriginal rights jurisprudence, “it appears that indigenous women have been erased off both the land and the legal landscape.”[8] Of the many methodological and interpretative challenges in historical work concerning Aboriginal people, perhaps, as Sarah Carter has observed, none is more important than the dearth of “first hand voices of the women of this era.”[9] We legal historians are heavily reliant on reported cases, and on official records and documents that were produced by the police and other government men.[10] Not many women’s hands or voices to be found there. Historians of oppressed, marginalized and colonized women -such as Constance Backhouse, Sarah Carter and Joan Sangster to cite but three in the Canadian context – are thus necessarily a resourceful and creative lot, because they are writing about people whom conventional legal and social ‘history’ has ignored or misinterpreted. Backhouse’s case studies document Aboriginal women’s victimization, agency, and resistance; Carter and Sangster make the important point that in these official state records, together with those of the religious and missionary records, the voices and perspectives that are recorded are those of the ‘observers’ – not the Aboriginal women themselves. That said, it seems to me that, paradoxically, the lower court records I study may offer a small rejoinder to ‘observers’, and to the silences, erasures, and dominant images that one finds in the historical or contemporary official documents, records, the media, and so on. I do not suggest that the voices and interpreted words of Aboriginal women in the depositions before the justices of the peace and trial transcripts were unmediated by the context and often involuntary circumstances in which they were spoken and recorded. But, as John Beattie has observed in relation to 18th century court records,[11] while such recorded words surely cannot be taken at face value, they do contain valuable information.

 

Some of the Voices I Found: Six (Women) Prisoners’ Stories

Between 1876 and 1903, only six Aboriginal women and one girl, Julia Cote, (who was charged with stealing the clothes she was wearing when she and Alex Bone ran away from the Regina Industrial School), appeared as accused persons and prisoners before Hugh Richardson, the longest serving and most experienced magistrate and judge in the Canadian North-West Territories.   These six women and one girl represent about 1% of all accused persons (589) and 5% of all Aboriginal accused persons (136) who appeared in Judge Richardson’s courts over the period. They are not the sexualized women that one encounters in some of the historiography; their ‘crimes’ such as they were, reflected the social, material and economic realities of their hard everyday lives. Four women (Caroline Gouin, Margaret Favel, Bone Child, and Marie Martin Daniel) were charged with forms of theft (of white people’s property), mostly small items or (in Caroline’s case) money from her employer’s pocket book. Betsy Horsefall was charged with horse theft – a serious offence – even though it involved a charge that she had stolen her own pony. Scholastique Cardinal was charged with murder and concealment of birth in the death of her newborn infant. The court records of these criminal prosecutions indicate that four women were convicted, and received deferred or suspended sentences; there is no disposition indicated in two cases, and in Horsefall’s case, the prosecution in the end did not proceed. Although the voices of Scholastique and Bone Child are not heard, and even Betsy’s voice is muted, it seems to me that Caroline and Margaret were not intimidated by the legal process or by their status as prisoners such that they did not to participate. They challenged their accusers, and in their challenges can be seen very clear theories of their own defences. And, even without benefit of counsel, they achieved some measure of success. There is no record that Caroline was ever convicted of the theft of Mr. McDougall’s coins, and Margaret Favel – accused of stealing a veritable shopping list of a school teacher’s personal property – in the end was convicted of stealing one solitary silver spoon.

I have been asked by a First Nations historian why I included a chapter on this handful of women. Perhaps he and others wonder if their numbers or stories are of any consequence. Here’s what I have to say: These women’s stories demonstrate the larger context and new relations that had arrived: the sanctity of white men’s property, new laws that changed how property ownership could be asserted, and new, coercive, forms of educating and transforming First Nations children into Indian children: Betsy Horsefall’s lost horse and the transformation of property relations through ordinances administered and enforced through low law officials; Scholastique Cardinal’s hidden pregnancy, and the ongoing role of the community in the new legal order; Margaret Favel and Marie Martin Daniel, on white man’s property, and the importance of the Plain; Caroline Gouin’s industry and employment, and her agency and advocacy in court; and, not least the casually enforced anonymity of the woman alleged to have stolen curtains and bells from a settler’s bachelor shack. Their stories are not a side story, and their numbers serve to remind us that the criminal law was not necessarily the first or most important means of subjugating the First Nations of the Plains in the period. And in the end, I decided that if I did not write about these women, I did not know who would. What they had to say and what they contributed to the development of our knowledge of the operation of criminal law in Western Canada is important.

[1] (Princeton, NJ: Princeton University Press, 2006). Professor Halley’s analysis and argument are developed through her engagement with different strands of feminist theory and thought (notably but not exclusively with what she characterizes as ‘power feminism’) throughout the book.

[2] Shelley AM Gavigan, Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870 – 1905 (Vancouver: UBC Press & The Osgoode Society for Canadian Legal History, 2012).

[3] Douglas Hay, “Time, Inequality, and Law’s Violence” in Austin Sarat & Thomas R. Kearns, eds Law´s Violence (Ann Arbor: University of Michigan Press, 1995) 141.

[4] Stephen Robertson, “What’s Law Got to Do with It? Legal Records and Sexual Histories” (2005) 12 J Hist Sexuality 161 at 171.

[5] Jean Barman, “Taming Aboriginal Sexuality: Gender, Power, and Race in British Columbia” in Mary Ellen Kelm & Lorna Townsend, eds In the Days of Our Grandmothers: A Reader in Aboriginal Women’s History in Canada (Toronto: University of Toronto Press, 206) 270 at 271.

[6] To borrow from Sheila Rowbotham’s early contribution to women’s history: Sheila Rowbotham, Hidden From History: Three Hundred Years of Women’s Oppression and the Fight Against It (Middlesex: Penguin Books, 1975).

[7] Hugh A Dempsey, Big Bear: The End of Freedom (Vancouver: Douglas & McIntyre) 11.

[8] Val Napoleon, “Aboriginal Discourse: Gender, Identity, and Community” in Benjamin J. Richardson, Shin Imai, and Kent McNeil, eds. Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford: Hart Publishing, 2009) 233 at 235.

[9]Sarah Carter, “First Nations Women of Prairie Canada in the Early Reserve Years, the 1870s to 1920: A Preliminary Inquiry” in Christine Miller & Patricia Chuchryk, with Marie Smallface Marule, Brenda Manyfingers, & Cheryl Deering, eds Women of the First Nations: Power, Wisdom and Strength (Winnipeg: University of Manitoba Press, 1996) 51 at 55.

[10]See Franca Iacovetta and Wendy Mitchinson, eds, On the Case: Explorations in Social History (Toronto: University of Toronto Press, 1998).

[11] John Beattie, Crime and the Courts in England, 1600 – 1800 (Princeton: Princeton University Press, 1986) at 21-22.

©Shelley AM Gavigan 2014

Osgoode Hall Law School

York University

Toronto, Ontario

M3J 1P3

(sgavigan@osgoode.yorku.ca)

Notes for Presentation at

Cutting Edge Contributions and Critical Reflections in

Canadian Feminist Legal History

Berkshire Conference on the History of Women

Toronto, Ontario, Canada

May 22 – 25 2014

 

Gender & Professionalization Projects: Rethinking Stories of Early Women Lawyers: Mossman at the Berks

Following the IFLS co-sponsored panel at the Berks (Cutting Edge Contributions and Critical Reflections in Canadian Feminist Legal HistoryConstance Backhouse, University of Ottawa LawMary Jane Mossman (Osgoode) Bettina Bradbury, York University (History)  & Shelley Gavigan (Osgoode) both Profs. Gavigan and Mossman have kindly sent their remarks  for posting as blog posts.With great thanks! photo of Prof Mary Jane Mossman

Today: Mary Jane Mossman,  Gender and Professionalization Projects: Rethinking Stories of Early Women Lawyers

 (and Wednesday, Osgoode’s Shelley Gavigan on Not Taking a Break from Feminism:  Reflections on the Criminal Law on the Aboriginal Plains)

In my research about early women lawyers, there are three intersecting strands of ideas and approaches:

One is a focus on changing relationships between the traditional idea of law as a ‘gentleman’s profession,’ and the nature and impact of gender challenges presented when women succeeded in gaining admission to the legal profession. This strand focuses primarily on developments in legal history.

 

A second strand focuses on stories about the experiences of early women lawyers, and particularly, how early women lawyers negotiated challenges based on their engendering of the legal profession. This strand requires attention to critical approaches to women’s biography, not only taking account of emerging patterns among cohorts of early women lawyers, but also paying careful attention to individual circumstances, aspirations, and opportunities (or lack thereof).

 

And a third strand in this research focuses on connections between early women lawyers and feminism. That is, while few early women lawyers overtly identified themselves as feminists, is it possible that feminist approaches to researching their lives might reveal feminist goals embedded in hidden strategies?

 

My earlier research, published in The First Women Lawyers in 2006, was a collective biography of the first women lawyers, in the late 19th and early 20th centuries, in the United States, Canada, England, New Zealand and Australia, India and parts of western Europe. My current research now focuses on a longitudinal study of women lawyers who entered the legal profession in Ontario in the seven decades between the 1890s and the early 1970s. This current study begins with the admission of Clara Brett Martin in 1897 (about whom Constance has written extensively), and explores the experiences of some of the approximately 300 women lawyers who were admitted to the Ontario bar up to the early 1970s.

The First Women lawyers by Mary Jane Mossman

Gender and Professionalism

As Ontario historians, Gidney and Millar argued, women’s entry into the traditional ‘gentleman’s profession’ of law in the 19th century challenged men’s monopoly on the distribution of knowledge and authority, as well as creating economic competition. In addition, Christopher Moore suggested that, although the legal profession in Ontario in the early 20th century experienced changes in professional organization, new developments in legal work, and increasing legal specialization, the legal profession never relinquished its traditional ‘patina of dignified and gentlemanly tradition.’ In my research, I am also exploring Michael Grossberg’s assertion, in the context of his study of masculinity in the US legal profession, that although women entered the legal profession, they never effectively confronted the gender premises of law or the legal profession.

 

In this context, the legal arguments presented in litigated cases routinely focused on principles of common law disabilities for women, male pronouns in statutes and Civil Codes, and significant precedents denying such claims such as Bradwell v Illinois in the United States. Judicial prejudices about new roles for women were also often on display.  For example:

When Mabel Penery French applied to the court for admission to the New Brunswick Bar in 1905, CJ Tuck rejected outright ideas based on ‘the advanced thought of the age and the right of women to share with men in all paying public activities.’ The court rejected her application unanimously. When she later moved to British Columbia and was admitted to the bar, the Law Society records noted ‘the admission of twenty gentlemen, including Mabel Penery French.’

For decades into the 20th century, male lawyers routinely lunched at all male clubs, including lawyers’ clubs, for both business and social purposes. In the 1940s, Eileen Mitchell Thomas, an elected member of the Can Bar Assoc National Council, was precluded from attending the Council’s dinner meeting because it was held in an all-male club in Montreal. A decade later in the 1950s, the Dean of Osgoode Hall Law School welcomed students in September, announcing that there were 935 students enrolled altogether, of whom 903 were men and 32 were of the ‘contrary sex.’

 

Mabel Penery French

The traditional ‘gentleman’s profession’ of law was also imbued with discriminatory culture towards both men and women who were not middle class, not white, and not Christian (especially Protestant) – and there is some evidence that these views created more challenges when coupled with gender. For example, the first Chinese-Canadian woman was called to the bar in Ontario in 1946, and the first Black woman lawyer was not admitted to the bar until 1960; and the first Aboriginal woman lawyer in Ontario was called in 1976 – while Chinese, Black and Aboriginal male lawyers had been called to the bar earlier. The first Jewish women lawyers were called to the bar in 1929 and 1930, and both women clearly experienced the combination of gender and Jewishness as creating significant problems for them in the legal profession. Indeed, antisemitism was widespread in the legal profession in Ontario, as elsewhere: there are reports of comments by both Clara Brett Martin in Ontario and Myra Bradwell in the United States that are disparaging about Jewish lawyers, for example.

 

The intersection of professional culture and gender also created practical problems for early women lawyers. For example:

Bertha Wilson, who became the first woman appointed to the SCC in 1982, recalled later in her life how, as a practising lawyer in the 1950s, a male client had angrily told her, ‘I don’t want any bloody woman drafting my will.’ Indeed, as a judge in the 1980s, Wilson regularly advised women law students to be ready to ‘prove themselves again and again in their careers.’ As she explained, it was her view as late as the 1980s that ‘all your life as a woman you are proving yourself … proving … that you can do it.’

Bertha Wilson

There are also numerous stories about the lack of facilities for women lawyers in courthouses, including both robing rooms and washrooms. Even in the mid-1970s, women lawyers appearing in the SCC usually had to robe in the furnace room in the basement. Moreover, women litigators often felt disadvantaged because male barristers routinely engaged in settlement negotiations in their robing rooms. In the 1960s, one intrepid woman barrister (Judy LaMarsh) confronted this challenge head on in the Toronto courthouse – by ‘degendering’ the men’s robing room. Her decision to robe in the men’s robing room resulted in the creation, shortly thereafter, of robing rooms for women.

 

These examples reveal how the engendering of the gentleman’s profession of law continued to be experienced, in a variety of different ways, for decades after women first gained admission to the bar in Ontario – and there are similar stories in other parts of Canada and in other jurisdictions. Yet, while there is considerable evidence that, as Grossberg claimed, women entered the legal profession without challenging its gender premises, an assessment of relationships between gender and professionalism in law needs to attend carefully to stories of early women lawyers. As Joan Wallach Scott suggested in a slightly different context:

How are those who cross the threshold received? If they belong to a group different from the one already ‘inside,’ what are the terms of their incorporation? How do the new arrivals understand their relationship to the place they have entered? What are the terms of identity they establish?

 

Telling the Stories of Women’s Lives

In telling the stories of these 300 early women lawyers in Ontario, who represented a very small group within the legal profession for nearly seven decades into the 20th century, there are a few reported cases, Law Society records, and press reports, as well as some detailed information in the archives of the Women’s Law Association of Ontario (established in 1919). As Hermione Lee lamented, however, while biographies include facts, there are also ‘absences, gaps, missing evidence, knowledge or information that has been passed from person to person, losing credibility or shifting shape on the way…’ In such a context, reconstructing the context in which these early women lawyers experienced opportunities or setbacks; made choices about where or how to practise law; decided whether to marry at a time when women were expected to have either a career or a marriage, but not both; or elected an identity as a lawyer – ungendered – all create challenges. Moreover, as Jill Ker Conway argued, we need to attend carefully to these ‘silences’ in women’s life stories. Or, as Carolyn Heilbrun suggested more pointedly, biographers of women must ‘reinvent the lives their subjects led, discovering from what evidence they [can] find the processes and decisions, the choices and unique pain, that lay beyond the life stories of … women.’

 

Here are some examples of the challenges in telling the stories of early women lawyers.

Some stories of these early women lawyers appear rather amusing at first glance. Probing more deeply, however, they may reflect quite significant efforts to ‘fit into’ the legal profession (ungendered). For example, when Winnifred Wilton arrived in London in 1917, having been called to the bar in Manitoba, to work in the office of the Canadian Expeditionary Forces, she gave a report to the British press. In 1917, women were not yet eligible to join the legal professions in England, and Wilton thus exclaimed, ‘I am trying to discover why people think that a woman lawyer must be a freak of some sort.’ Interestingly, decades later in the 1970s, when Laura Legge became the first woman elected as a Bencher for the Ontario Law Society, she later explained that it was important for her to demonstrate that she was not a ‘monster,’ and that she was not going to ‘make a lot of waves.’ In the context of such language, ‘fitting in’ to the legal profession appears to have been a significant concern for women lawyers.

 

Laura Legge

Another feature of early women lawyers’ experiences was invisibility, not only in the legal profession but also after women began to be appointed to the judiciary. After Mabel Van Camp became Ontario’s first SC justice in 1971, she travelled by train to sit as a judge in a town in northern Ontario. On arrival at the train station, she was unrecognized by the court staff who had a car waiting to take her to the courthouse, and she hailed a cab herself to go there. On arrival at the courthouse, she found everything in an uproar. As the clerk explained, ‘We’ve lost the damn judge.’ Apparently, without missing a beat, Justice Van Camp replied, ‘I am the damn judge.’

 

Perhaps most significantly, early women lawyers were not ‘women lawyers;’ they were ‘lawyers’ (ungendered). In the US context, Nancy Cott argued that turn of the century ideas about ‘dispassionate professionalism’ were powerfully resonant among women professionals (including women lawyers), especially after suffrage was achieved after World War I. Since formal barriers had been removed, women relied on the professions’ neutral and meritocratic … ideology’ as the best strategy for achieving professional success. For example, one of the most successful women lawyers in Ontario in the mid 20th century was Margaret Hyndman, who gave a report to the press in 1949, stating: ‘Only the fact that I am a lawyer matters. That I am a woman is of no consequence. I make a point of not knowing how many women lawyers there are in Canada.’

 

Early Women Lawyers and their Feminist ‘Silences’

In the context of second wave feminism in the 1960s and 1970s, women quite suddenly began to populate university law schools, both in Canada and elsewhere. Indeed, although only about 300 women had entered the Ontario legal profession in seven decades between the 1890s and the 1970s, more than 300 women were called to the Ontario bar in the seven years between 1969 and 1975. Women began to be appointed as judges, as tribunal chairs, as university law professors, and as partners in large law firms. After the enactment of Canada’s Charter of Rights and Freedoms, women as lawyers and as judges began to reshape legal principles and practices. In such a context, the ‘silences’ about gender and feminism among earlier cohorts of women lawyers often appeared puzzling to these new women entrants to the legal profession.

 

Nancy Cott’s arguments about professional ideology and its attractiveness to women professionals suggest how early women lawyers became ‘lawyers’ – ungendered. As she stated:

The professional ethos, with its own promise of freedom from sex-defined constraints, was released to flourish in aspiring women’s minds…. [Women professionals did not deny the instrumentality of feminism in breaking down barriers to women’s first entry to the professions, but they [accepted] the professions’ hallmarks [of] objectivity, empiricism, [and] rationality, [as well as collegially determined standards…. Feminism seemed to openly conflict with those hallmarks….

 

In Canada, Sylvia Bashevkin similarly concluded that a schism developed between women professionals (who were usually unmarried and economically independent) and the middle class married women who formed the nucleus of social feminism in early 20th century Canada (and who argued for suffrage based on women’s purifying influence). Moreover, there is evidence that some early women lawyers fully embraced a professional, rather than a gendered, identity. As a prominent early woman lawyer proclaimed, ‘The only battle that needed to be won by women lawyers was won by Clara Brett Martin in 1897. Our attitude was: “You’re a lawyer, get on with it and do it.” And we did.’ In the context of problems finding articles or employment, lack of acceptance by firm clients, courthouses without proper robing rooms and washrooms, and the use of all-male clubs for both legal negotiations and social activities for the profession, such a comment suggests a strategy for achieving success in the legal profession – and the rejection of a feminist strategy that was to become so much more useful when the numbers of women lawyers increased in the 1970s and 1980s.

 

Some confirmation for this conclusion is available in one response to a survey conducted by Cameron Harvey in the late 1960s, in which Marguerite Ritchie, a woman lawyer in the federal  Department of Justice (and an expert in human rights) suggested that:

You may discover that some replies indicate an apparent lack of discrimination [in the legal profession]; in many cases I have found that women are unwilling to admit discrimination, either because they are trying to conceal the fact from themselves or because they must play the role of ‘Uncle Tom’ and that their chances of promotion depend absolutely upon their conformity to and acceptance of existing patterns.

 

It is in these ‘existing patterns’ of opportunities and choices for early women lawyers that we may find confirmation of Grossberg’s assertion that women entered the legal profession without challenging its gender premises. Moreover, as Carol Sanger argued, we must understand that ‘women who chose to locate their professional lives in law are likely to [leave behind] stories of piecemeal progress and circumscribed success.’

 

Nonetheless, there are two reasons for searching for the stories (and the silences) of early women lawyers. One is to identify how, even as they often appeared to conform to the professional norms required to be a lawyer ungendered, they also contributed to changing norms, both in the profession and in Canadian society. For example, Margaret Hyndman, who strongly asserted that she was a lawyer, and that being a woman was of no consequence, was among the influential group of women who pressured the federal government to establish the Royal Commission on the Status of Women in the late 1960s, and Judy LaMarsh, acting within the federal cabinet, helped to make it happen. Even Justice Van Camp’s statement that ‘I am the damn judge’ may have changed ideas about gender and judging in the 1970s. The second reason for exploring the experiences of early women lawyers relates to the contemporary context, in which both professional and societal norms may not ensure equality for women in law. As Scott concluded:

Feminist history is not the recounting of great deeds performed by women but the exposure of the often silent and hidden operations of gender that are … present and defining forces in the organizations of most societies.