Following the IFLS co-sponsored panel at the Berks (Cutting Edge Contributions and Critical Reflections in Canadian Feminist Legal History, Constance Backhouse, University of Ottawa Law, Mary 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!
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.
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.’
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.’
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.
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.