by Mary Jane Mossman
In 2018, the Law Society of Ontario reported that 1306 women and 1083 men were called to the bar.[i] That is, more women than men joined the legal profession in Ontario, a pattern that has been repeated in recent years. To what extent does numerical gender equality signal equality in professional opportunities for both women and men lawyers in the twenty-first century?
This question has attracted scholarly studies, major reports by legal organizations, and the creation of the ‘Justicia Project’ by the Law Society of Ontario in 2008.[ii] Some women lawyers have achieved significant professional success, including as Managing Partners in major law firms, as Senior Counsel in corporations and government, and as litigators and judges in Canadian courts, including the Supreme Court of Canada. At the same time, some women lawyers attending a ‘Women in Law Summit’ in 2020 in Toronto, reported experiences of exclusionary practices in the legal profession, leaving them ‘invisible’ and unwelcome ‘at the table.’[iii] How should we understand these divergent experiences?
Judith Bennett, a historian of women’s work in different historical periods has argued that changes in the patterns in women’s work have more often reflected continuity rather than transformation in women’s status, relative to men. More specifically, there is a critical distinction between changes in women’s experiences on one hand and transformation in women’s status on the other.[iv] An examination of the history of women lawyers in Ontario reveals important changes since 1897, when women first began to enter the Ontario legal profession – but the issue of whether these changes represent continuity or transformation is less clear.
My current research project focuses on women who were called to the bar in Ontario between 1897 and 1957 – in these six decades, only 187 women were called to the bar. Some women law students were the only woman in their classes at Osgoode Hall; indeed, the largest number of women to be called to the Ontario bar in one year up to 1957 – in classes with much larger numbers of men – was nine.[v] In addition, their small numbers meant that a woman who practised law outside Toronto was often the only woman lawyer in her community for decades. In Toronto, many early women lawyers were excluded from law firm practices; as a result, many worked in insurance and trust companies and in the provincial government. Moreover, many of them did not practise law, especially if they married – as Helen De Roche, who was called to the Ontario bar in 1933 explained, ‘In those days, your husband kept you.’[vi]
These early women lawyers faced a number of exclusionary practices in the legal profession, traditionally a ‘gentleman’s profession.’ They were often excluded from legal organizations and were barred from business lunches at male clubs in Toronto for decades of the twentieth century. Many law firms were unwilling to provide articling opportunities for women, and law student activities frequently excluded women – or were so full of misogyny that women stayed away. Women students were required to sit together in the front row for lectures at Osgoode Hall, and some judges openly disapproved of women in law; many early women lawyers avoided legal work in the courts as a result.[vii] However, several women became excellent litigators and one, Helen Kinnear, became the first woman in the British Empire to be appointed a judge, when Prime Minister Mackenzie-King made her a judge of the County Court in 1943.[viii] Significantly, the next federal judicial appointment of a woman in Ontario did not occur until 1971, when Mabel Van Camp was appointed to Ontario’s Supreme Court.[ix] In addition, although women lawyers were candidates for Bencher elections for several decades, it was not until 1975 that Laura Legge became the first (and only) woman elected a Law Society Bencher in that year.[x]
Clearly a lot of change has occurred for women lawyers since 1957 in Ontario, including a massive increase in numbers. Indeed, Richard Abel explained that while the number of male lawyers in Canada doubled between the early 1960s and the early 1980s, the number of women lawyers increased twenty-four times in the same period.[xi] Moreover, by contrast with early women lawyers, many of whom were White, Protestant and middle class,[xii] women who entered the Ontario legal profession after 1957 were much more diverse. In this context, the experiences of early women lawyers are important for two reasons, in my view:
One is that patterns of exclusionary practices may continue to exist for women lawyers in the twenty-first century. As an American historian, Virginia Drachman, argued: ‘the professional and personal challenges that confront women lawyers today … reach back … to the pioneer generation of women lawyers,’ who first grappled with the challenges facing women lawyers.[xiii] In Ontario, a 2010 Law Society report (based on the 2006 census) revealed that 40.8 per cent of women were associates or employees in law firms, but only 26.9 per cent of men were employed in this category.[xiv] Moreover, there is some evidence that exclusionary practices in the legal profession are often now experienced by women (and men) from racialized communities. Yet, as will be discussed in my next Blog, although some Black and Indigenous men were admitted to the Ontario bar in the nineteenth century, the first Black woman was not called to the Ontario bar until 1960, and the first Indigenous women were admitted to the legal profession in Ontario only in the late 1970s and early 80s. Significantly patterns of exclusion for early (White) women lawyers up to 1957 may continue for these and ‘Other’ women lawyers.
A second reason for exploring the experiences of women lawyers up to 1957 is that their stories also reveal the history of Osgoode Hall Law School. A ‘Law School’ at Osgoode Hall was established in 1889 by the Law Society (then the Law Society of Upper Canada), and it was the only entry point to the practice of law in Ontario until 1957. During these decades, the Legal Education Committee of the Law Society hired faculty, decided which books would be prescribed, which students would be admitted, and conducted the oral examinations. The ‘Law School’ finally acquired its current name in 1923, but it was not until 1957 that the Law Society agreed to permit universities to provide three-year academic law programs, to be followed by articling and a Bar Admission course; and Osgoode Hall Law School then offered three years of academic lectures as well.[xv] Even in this context, however, the Law Society prescribed all the required course offerings until 1968; and it was only in 1968-69 that OHLS moved to York University, becoming a university law school itself.[xvi] Thus, by contrast with university law schools in most provinces in Canada, Ontario’s Law Society (and its male Benchers) controlled legal education and access to the legal profession for half of the twentieth century.
In this way, the experiences of early women lawyers reveal the exclusionary practices they faced (and sometimes circumvented). In addition, their experiences demonstrate the culture of law as a ‘gentleman’s profession.’[xvii] In this context, it is worth reflecting on an oft-repeated comment of Bertha Wilson, even after her success in becoming the first woman in Canada to be appointed to the Supreme Court of Canada; as she regularly advised women law students, ‘All your life as a woman you are proving yourself … proving … that you can do it. And you get tired of it.’[xviii] Her comment requires further reflection about whether recent changes reveal continuity or transformation, relative to men, for contemporary women lawyers.
[i] M. Orenstein, Racialization and Gender of Lawyers in Ontario: A Report for the Law Society of Upper Canada, April 2010.
[ii] For example, see J. Brockman, Gender in the Legal Profession: Fitting or Breaking the Mould (Vancouver & Toronto: UBC Press, 2001); M. Thornton, Dissonance and Distrust: Women in the Legal Profession (Melbourne: Oxford University Press, 1996); and U. Schultz & G. Shaw, eds, Women in the World’s Legal Professions (Oxford & Portland OR: Hart Publishing, 2003). See also Law Society of Upper Canada, Transitions in the Ontario Legal Profession: A Survey of Lawyers Called to the Bar Between 1975 and 1990 (Toronto: Law Society of Upper Canada, 1991); Canadian Bar Association, Touchstones for Change: Equality, Diversity and Accountability – the Report on Gender Equality in the Legal Profession (Ottawa: Canadian Bar Association, 1993); and Law Society of Upper Canada, Final Report – Retention of Women in Private Practice Working Group, 22 May 2008: online https://www.lsuc.on.ca.
[iii] A. Balakrishnan, ‘The Invisible Woman: Women in Law Summit Explores How to Help Women Lawyers and Partnership Numbers,’ Canadian Lawyer, 3 April 2020.
[iv] J. Bennett, ‘Theoretical Issues: Confronting Continuity’ (1997) 9:3 Journal of Women’s History 73; and Bennett, History Matters: Patriarchy and the Challenge of Feminism (Philadelphia: University of Pennsylvania Press, 2006).
[v] Law Society of Ontario Archives: E. Huckle, ‘List of Women Barristers and Solicitors in Ontario, 1897-1975.’
[vi] Law Society of Ontario Archives, Women’s Law Association of Ontario fonds, unidentified interview, ‘Nora’s Interview with Torchy’ (Helen DeRoche’s nickname was ‘Torchy’ because of her red hair).
[vii] For examples, see (Winter 1991) 5:1 Without Prejudice (Women’s Law Association of Ontario) at 3; C. Moore, The Law Society of Upper Canada and Ontario’s Lawyers 1797-1997 (Toronto: University of Toronto Press, 1997), 267-8; Sophia Sperdakos, ‘“A Forum for Discussion” and a Place of Respite: Jewish Lawyers and Toronto’s Reading Law Club’ (2012) 30 Windsor Yearbook of Access to Justice 163; L. Silver Dranoff, ‘Women as Lawyers in Toronto’ (1972) 10 Osgoode Hall Law Journal 177; B. Bucknall, T. Baldwin and J.D. Lakin, ‘Pedants, Practitioners and Prophets: Legal Education at Osgoode Hall to 1957’ (1968) 6:2 Osgoode Hall Law Journal 137; and M. Brunet, Becoming Lawyers: Gender, Legal Education and Professional Identity Formation in Canada, 1920-1980 (University of Toronto, PhD dissertation, 2005).
[viii] Law Society of Ontario Archives, ‘Diversifying the Bar’: Helen Kinnear; and M. Corbett and D. Corbett, ‘Helen Kinnear (1894-1970)’ in R.M. Salokar and M.L. Volcansek, eds., Women in Law: A Bio-Biographical Sourcebook (Westport, CT: Greenwood Press, 1996) 129.
[ix] Osgoode Society for Canadian Legal History, Oral history transcript: ‘Mabel Van Camp.’
[x] LSO Archives, Bencher fonds; and Osgoode Society for Canadian Legal History, Oral history transcript: ‘Laura Legge.’
[xi] R. Abel, ‘United States: The Contradictions of Professionalism’ in R. Abel and P.S.C. Lewis, eds, Lawyers in Society: The Common Law World, vol 1 (Berkeley, University of California Press, 1988).
[xii] Law Society of Upper Canada, Crossing the Bar: A Century of Women’s Experience ‘Upon the Rough and Troubled Seas of Legal Practice’ in Ontario (Toronto: Law Society of Upper Canada, 1993) at 15.
[xiii] V.G. Drachman, Women Lawyers and the Origins of Professional Identity in America: The Letters of the Equity Club 1887-1890 (Ann Arbor: University of Michigan Press, 1993) at vii. See also C. Harvey, ‘Women in Law in Canada’ (1970-71) 4 Manitoba Law Journal 9.
[xiv] Orenstein, Racialization and Gender of Lawyers in Ontario.
[xv] Bucknall, Baldwin and Lakin, ‘Pedants, Practitioners and Prophets.’
[xvi] J. Arnup, ‘The 1957 Breakthrough’ (1984) 18 Law Society Gazette 180. See also M. Cohen, ‘The Condition of Legal Education in Canada’ (1950) Canadian Bar Review 267; C. Morgan, ‘“An Embarrassingly and Severely Masculine Atmosphere”: Women, Gender and the Legal Profession at Osgoode Hall, 1920s -1960s’ (1996) 11:2 Canadian Journal of Law and Society 19; and W.W. Pue, ‘Common Law Legal Education in Canada’s Age of Light, Soap and Water’ (1996) 23 Manitoba Law Journal 654.
[xvii] R.D. Gidney and W.P.J. Millar, Professional Gentlemen: The Professions in Nineteenth-Century Ontario (Toronto: University of Toronto Press, 1994). See also F. Kay and E. Gorman, ‘Women in the Legal Profession’ (2008) 4 Annual Review of Law and Social Science 299M. Kinnear, InSubordination: Professional Women 1870-1970 (Montreal & Kingston: McGill-Queen’s University Press, 1995); and P.M. Glazer and M. Slater, Unequal Colleagues: The Entrance of Women into the Professions 1891-1940 (New Brunswick, NJ: Rutgers University Press, 1987).
[xviii] E. Anderson, Judging Bertha Wilson: Law as Large as Life (Toronto: University of Toronto Press, 2001) at 200.