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Women and the legal profession

Professor Raymond Suttner

15th October 2014

By: Raymond Suttner

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“The Master’s Tools will never dismantle the Master’s House”– Audre Lorde

This quotation captures the reconstruction of masculinised institutions that is needed before women can enter the work place as equals.

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Last week many people were shocked to read that the Judicial Services Commission (JSC) refused an application of a judge sitting in Mthatha to be transferred to the Bhisho court, where a vacancy had to be filled.  The judge explained that she had three children aged between three and seventeen.  To care for them she commuted between Mthatha and East London on the weekends, initially taking her youngest – who is autistic – with her to Mthatha.  With the arrest of her husband for rape in front of her children in December, the children are traumatised and it has become essential to their welfare for her to be closer to the children more often. 

The JSC found that this did not constitute  “good cause” required to move the judge from her posting in Mthatha. This decision illustrates the complexity in realising gender equality in public institutions that were created with the assumption that the incumbents would be men. 

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The norm from which the JSC operates is that a judge (and that assumption is applicable to professionals more generally) is a person who is unencumbered by responsibilities for the wellbeing of others, with no need to allot part of their time and energies into caregiving for others.  In other words, this is a norm applicable to men and does not factor in the reality that most women who are mothers bear almost exclusive responsibility for childrearing.

To treat all judges, members of parliament or other individuals in the public or private sector as if they are the same is not in fact equal treatment.  It can, insofar as it fails to recognise the range of other responsibilities that childbearing women have, mean that entry into such work is unequal.

Achieving gender equality poses a range of challenges, not only in enabling entry of women into spaces from which they have historically been excluded or where entry has been difficult or discriminatory. It also necessitates transformation of the structure of such institutions and professions for that entry to be meaningful. 

The public institutions (and the private sector, which is not addressed here) have not taken adequate responsibility to cater for childbearing, provision of adequate maternity leave and even minimal recognition of the need for paternity leave.

The way patriarchy operates is to treat the public sphere as the terrain where it is assumed that men “naturally” operate, while women are assumed to be the homemakers and, where there are children, caregivers.  Insofar as mothers enter professions, they still tend to retain primary responsibility for the wellbeing of their children.  Even if domestic workers are employed, it tends to be the mother’s responsibility to oversee their work.  What this means is that when a husband and wife both pursue professional careers, it still tends to be assumed that the wife/mother remains responsible for the home.

Undoubtedly there are exceptions, where some men share responsibility for seeing that their children do their homework or are taken to sporting events or nurtured and supervised in other ways. But in general, it is safe to generalise that in a family where both parents are advocates, male advocates can often leave home for the office long before seven. The assumption is that the wife will take responsibility for seeing the children go to school, that they have eaten breakfast and so on. 

Until the children have grown up, early or late night consultations are not easy for a professional mother to engage in.

This is a problem that is found in a range of institutions. The first democratic parliament was clearly constructed for men and there were not even adequate toilet facilities for women. Symbolic of the masculine character of the institution, the first speaker, Dr Frene Ginwala, found a urinal in her office.

Evening meetings of parliament failed to factor in the need for MPs who were mothers and assumed to be responsible for preparing the evening meal (often when their husbands were MPs and stayed on in the assembly).  Over time, through the insistence of women, MPs' hours of meeting were adjusted and crèche facilities were provided. It is unclear to what extent these have been sustained.

The main observation to be made is that when the JSC found that the judge seeking a transfer to Bhisho by virtue of her responsibilities as a mother did not show “good cause”, they failed to recognise the terms of her entry into the legal profession and the judiciary.  There needs to be recognition that gender equality does not mean that all are the same, and appreciation of the differences between men and women is needed in order to make equality meaningful.

Professor Raymond Suttner, attached to Rhodes University and UNISA, is an analyst on current political questions and leadership issues. He writes a regular column and is interviewed weekly on Creamer Media’s Polity.org.za. Suttner is a former political prisoner and was in the leadership of the ANC-led alliance in the 1990s. He blogs at raymondsuttner.com. His twitter handle is @raymondsuttner.

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