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According to merit?: Vive the gender difference

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Cite as: (2007) 81(7) LIJ, p. 93

Successful women do not need to be pseudo men.

Graffiti on toilet walls can be esoteric, but generally only at universities. More often it is boring, banal, bland. Mostly I am amazed anyone could be bothered taking the time to write it (and that I’m reading it). Very occasionally though, the graffiti gods offer up some gems.

My favourite gem being “[w]omen who want equality lack ambition”.

It’s my favourite for many reasons including wondering whether it’s ever graced the walls of a men’s toilet. But particularly because it is thought-provoking on many levels.

I first read it to mean that women should want to be somehow better than men but, subsequently, as women should not be setting men as their benchmark but rather seeking to define success and happiness on their own terms.

We all know women who have succeeded in a male-dominated profession because they have adapted to it to such an extent that they have become “honorary” men.

Women who have made it to the top of the profession the hard way and see no reason why they should make it any easier for those young women following behind.

Women who say they have never experienced discrimination on the basis of gender and that it just doesn’t exist (a little along the lines of PMT) and that those who think otherwise are somehow failures.

Women who may be brilliant lawyers but are not necessarily brilliant role models.

But fortunately we all know women who have aimed not for equality in the sense of adapting to a male constructed profession but have aimed higher.

I am not asserting that women deserve more than their male counterparts. Nor am I proposing that all women are naturally more brilliant, better lawyers, more efficient or more skilled advocates than all men and should, accordingly, rise like cream to the top of the profession.

Rather, my assertion is that real equality recognises genuine differences and the need to adapt to those differences.[1]

That women are different to men and need not accept the traditional definition of success and traditional work models, striving to meet the expectations set by the ideal worker – traditionally a man able to devote his days, and nights, to work safe in the knowledge his wife at home will have cooked his meal, cleaned his house and ordered his children.[2]

That women should define equality as being able to set their own goals and achieve them without compromising personalities, backgrounds and perspectives.

That women should follow those role models who have made partnership, raised families, kept their sense of humour and still found time to mentor younger women.

There are many women who have fought discrimination at their firm and at the Bar, who have forged successful practices, who have been appointed to the Bench or have chosen academia.

In short, there are plenty of women role models who have remained in the profession in whatever form and have retained their difference.

We should celebrate that difference.

Victorian Supreme Court Chief Justice Marilyn Warren (who was then Justice Warren) suggested that women bring many qualities to the law in combination with uniquely feminine perspectives:

“ ... a different perspective ... They identify an issue quickly, focus on it and persuade rather than dictate. Mostly, women who work in the law are goal oriented. They readily identify their litigation goal, their judgment goal.

“Women provide perspective. They search out resolutions ...

“Women have finely honed organisational skills ...

“Women are adaptive and flexible ...

“Women bring to the law a strong sense of method. This is borne out in the judgment writing of women in superior courts. They approach judgment in a chronological manner with a strong sense of method and stepped analysis ...

“Women bring a combination of typically feminine characteristics to the law: energy, patience, humour and insight. These characteristics they apply to their work and it has a ripple effect on colleagues, clients, staff and litigants as the case may be.

“My list is not exhaustive. It is intended to highlight the difference that women bring to the law”.[3]

It is not only women lawyers who note the difference between men and women.

High Court of Australia Justice Michael Kirby has said:

“ ... women are not just men who wear skirts. They have a different life’s experience. They sometimes have a different way of looking at problems. Occasionally, they demonstrate less combative tendencies – to ‘kick heads’ and to ‘thump tables’ – and more skills in conciliation and the rational resolution of disputes”.[4]

Women are no more a homogenous group than are men. But as a whole we have more to offer both ourselves and the profession by celebrating our differences and aiming for more than equality.

LIZ BISHOP is completing her SJD at Monash University and is tutoring in administrative law and legal ethics for medical students.

[1] This principle was recognised by the High Court in Cole v Whitfield (1988) 165 CLR 360.

[2] Joan Williams, Unbending Gender: Why work and family conflict and what to do about it (1999) Oxford University Press, p2.

[3] Then Justice Marilyn Warren, “Promoting difference” speech to the Victorian Women Lawyer Achievement Awards presentation dinner at Parliament House, Victoria, 15 May 2003.

[4] High Court Justice M Kirby, “Women in the law – doldrums or progress?”, speech to the Women Lawyers of Western Australia, Perth, 22 October 2003.


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