Julie Hare* says a new study has found that even in the highest court in the land, women judges are being talked over and interrupted by men.
It’s 21 years since the movie Girl, Interrupted arrived on the big screen.
But new research reveals a very literal version has been playing out in court houses across the land.
Perhaps it would be more accurately titled Very Senior Female Judge Interrupted and the script would follow a cringe-worthy predictable plot line in which women judges struggle to make their point as they are cut off — again and again — by male barristers.
The script contains a smidgen of balance — male judges also get interrupted by male barristers but about half as often, and usually in a highly deferential manner.
As in “I apologise for interrupting, Your Honour”.
The women judges just get steamrolled.
A journal paper by Amelia Loughland — to be published in the Melbourne University Law Review — is based on transcripts of High Court full bench hearings from mid-2015 when the appointment of Michelle Gordon brought the number of female judges to a historic high — three of seven.
It concludes when Susan Kiefel (pictured) completed her first full year as Chief Justice — another notable landmark in gender equality in Australia.
The paper found, not only did women judges get interrupted twice as often as male judges, but also interruptions actually increased after Justice Kiefel became Chief Justice.
So, while female judges received 54 per cent of interruptions in 2015–16, following Justice Kiefel’s elevation, the figure increased to 69 per cent in 2017.
As Ms Lougland points out, if such behaviour happens to that degree in the highest court in the land, we can safely assume it is rife in other institutions across the country.
“We know that unconscious bias is a thing, but to see it operating at this level suggests the extent to which it is happening in board rooms and in meetings and law schools,” says Ms Loughland, who graduated last year.
Adrienne Morton, President of Australian Women Lawyers, agrees but says most of it stems from unconscious bias.
“I was honestly surprised at the rate of interruptions and the fact it had increased under Chief Justice Kiefel,” Ms Morton said.
“But I was not in the least surprised that women judges are interrupted more often than their male colleagues.”
“The pattern of interrupting behaviour is universal; I was just surprised at how marked it was.”
“I doubt most of it is deliberate, although I wouldn’t be surprised if some advocates have a strategy by which they consciously go harder because the judge is a woman.”
In her paper, Ms Loughland canvasses various theories in search of an explanation.
One is that women judges might be more voluble — more talkative — than their male counterparts, allowing more time for interruption.
After all, there was a myth doing the rounds a few years ago that argued women spoke, on average, 20,000 words a day, compared with men’s much more economical 7,000 words.
Ms Loughland’s analysis showed female judges spoke no more and no less than male judges, so it can’t be put down to mere quantity of words.
So, is it seniority — or lack thereof?
No. Not that. Obviously.
Maybe, it’s the way women speak — their cadence, inflection and modulation of language — which make them more amendable to interruption?
“While female High Court Justices did not demonstrate the speech characteristics typically associated with their gender, this does not necessarily prove they are ‘honorary men’ who have imbibed the authority of the masculine register,” Ms Loughland writes.
She notes that since most judges — whether male or female — adopt a similar way of speaking, we could assume they would all be interrupted to a similar degree.
But that is not the case.
So, does the answer lie in “gendered conversational norms”?
Or the fact (empirically proven) that when men are conversing with women, they “speak more and for longer, monopolise the conversation and are more likely to interrupt or cut off their female partner”.
As Ms Loughland says, it would be reasonable to assume that these social norms would be rendered irrelevant in a court room — particularly the High Court — where formality, hierarchy, tradition and ceremony are powerful drivers of proceedings.
But not so.
Female judges were subjected to “the same dominating behaviours in oral argument that they could expect in everyday conversation with men”.
Tangentially, the paper raises another important issue — the rarity of senior female barristers and advocates who appear before the High Court.
They are so few in the study as to be “statistically insignificant”.
If it wasn’t for Kirsten Walker, Solicitor-General for Victoria, women — other than the female judges themselves — are almost totally absent in the most important cases, except in supporting roles.
“Across the two and a half years I examined, there was only one case before the full bench where there were two lead female senior counsel,” Ms Loughland says.
* Julie Hare is Editor at Broad Agenda.
This article first appeared at www.broadagenda.com.au.