Gender Bias Analysis Version 2.0: Shifting the Focus to Outcomes and Legitimacy
Introduction
Twenty-five years ago, the New York State Unified Court System created the New York Task Force on Women in the Courts to study how women fared in the court system, a problem referred to in other contemporaneous reports as “gender bias.” In 1986, the Task Force published their Report (“The Report”).1 Today, it is important to review the achievements made since that time, and to examine and envision what work remains.
The Report’s authors understood the identification and eradication ofgender bias as a process, not a one-time event. Re-reading The Report in preparation for the 2 5th Anniversary Symposium dedicated to it, which was held at the NYU School of Law in April 2011, it was striking how the section summarizing the Task Force’s goals and conclusions made a straightforward statement that still feels radical today: the gender bias against women in the courts is so pervasive that it undermines the system’s ability to deliver justice to anyone.2 This statement is radical not only because it comes from within the establishment, but also because it acknowledges that a system that discriminates against some is unjust for all. In other words, it is not “merely” a problem for women; gender bias in the courts is a problem for anyone who expects the courts to render sound, logical, and equitable decisions.
However, The Report’s recommendations fail to sustain the radical edge of this introductory analysis.3 The palpable disconnect between those two parts may be due to several factors: the historical context of The Report, which framed both the ways in which people considered and discussed gender; the practical challenges of truly revisiting an entire system of justice; and, perhaps, a stepping back from the implications of what it would mean to embark upon the creation of a gender-blind justice system.
Twenty-five years later, as we revisit this important report, we must challenge ourselves not only to complete the project initiated 25 years ago, but also to reimagine it for today. Could we aim as high from today’s vantage point? Can any of the promises that were beyond the reach of the original Task Force be fulfilled now?
It is beyond the scope of this article to conduct a new, deeper inquiry into the areas suggested (after all, the last undertaking occupied a team of experts for almost two years); rather, I hope to raise questions worthy of inquiry and identify further avenues worthy of pursuit.
Some of The Report’s original questions also deserve continued monitoring, including: are women equitably represented in all parts of the justice system; are women explicitly disrespected (or worse) in the courts; and are mistaken assumptions about women (and men) and their roles and abilities used as factual foundations upon which legal decisions are made? Today’s understanding of the ways in which bias can persist has become more nuanced, recognizing the less obvious influence of things like unspoken assumptions. These subtler forms of bias are referenced in The Report and should be formally investigated today. The rich research into how racial bias affects the courts and the systems in which they operate offers two key analytic tools worthy of further application in the area of gender bias. First, whether implicit bias regarding gender affects court decisions, even though made by judges who are explicitly trained to be fair. Second, whether the fact of bias against at least half of the system’s litigants undermines the fundamental legitimacy of that system.
The first section of this article briefly reviews the context of the 1986 Report of the New York State Task Force on Women in the Courts. Section II discusses the bravery of the authors’ vision. Section III acknowledges that The Report’s recommendations fell short of its visionary introduction. Finally, Section IV invites colleagues to use newer analytic tools to investigate gender bias in a more nuanced way.