While women are slowly making headway in achieving senior ranks in the workplace, does title override gendered unconscious bias? Today’s insightful analysis from Amelia Loughland (@AmeliaLoughland), Fellow with the Gilbert + Tobin Centre of Public Law, reports on her empirical research which finds that female judges on the high court are more likely to be interrupted by male counsel than their male counterparts. This analysis draws from an article soon to be published in the Melbourne University Law Review; an advance copy is available here.

“Could I just finish the question?”

Anecdotally, many women can attest to being interrupted by men in everyday conversation. This phenomenon has been confirmed by scientific studies, and we know that it happens in politics and the boardroom too.

But it is reasonable to expect that such violations of the ‘turn-taking norm’ of conversation would be suppressed in circumstances where women are in a clear position of power over men, or where men have an obvious incentive to be deferential rather than dominant in conversation.

Unfortunately, women even at the pinnacle of their legal careers are more likely to be interrupted than their male colleagues. This was the finding of my empirical study of transcripts in the High Court of Australia, which is to be published in the forthcoming volume 43(2) of the Melbourne University Law Review. Despite the fact that we now have a female Chief Justice presiding over the Court, I found that women overall were more likely to be spoken over, and in a manner which prevented them from asking substantive questions of counsel.

It confirms the findings of Professor Tonja Jacobi and Dylan Schweers, who observed similar gendered interruption patterns between judges in the United States Supreme Court.

Findings

My study focused on Full Bench (ie, when all seven judges were presiding) hearings in the High Court of Australia between mid-2015 until the end of 2017. Over this period, there were four male judges and three female judges. I recorded each time a judge was interrupted by counsel (which is coded as ‘- - -’ in the transcripts) and cross-referenced this against AV recordings where the transcripts were unclear or misleading.

I found that in the 2015–16 period, the three female judges received 52% of the total number of interruptions, whereas the four male judges collectively received 48%. The breakdown of these interruptions by judge is represented in Figure 1 (the Melbourne University Law Review produced both of these graphs).

Source: Melbourne University Law Review and the author.

When the Court was presided over by its first female Chief Justice in 2017, these rates increased: the three female judges received 69% of the total interruptions, whereas their four male counterparts received only 31%.

Given that the two different Chief Justices received a disproportionate number of interruptions in both periods, I hypothesise that this position requires the judge to intervene in oral argument more frequently than the other judges as a ‘chairperson’. Accepting this, I removed Chief Justice French’s interruptions in the 2015–16 period; which resulted in the three female judges still receiving 71% of the remaining interruptions (115 of the total remaining 163 interruptions). This makes the gendered pattern even more stark; as the male judges are now being compared with an equal number of female judges. Even excluding Chief Justice Kiefel from the data set in 2017; the two female judges still received 56% of the remaining total.

This means that in the first year it was led by a female Chief Justice, female judges were twice as likely to be interrupted than their male counterparts.

In the full article, I explore other possible explanations for these patterns, such as seniority, volubility and the speaking patterns of the judges. Ultimately, I find that gender was the most salient factor in accounting for whether a judge was likely to be interrupted during oral argument.

More importantly, I found that the female judges were more likely to be interrupted in a pre-emptive manner; i.e., where an advocate cuts off her question before it was properly asked. On the other hand, male judges were more likely to be interrupted in an affirmatory way, for example with positive “yes, your Honour” or “exactly, I agree”.

Why does it matter?

Participation

Like the emu and kangaroo, is gender equity always moving forward…? Even Australia’s highest court appears to struggle with female leadership. Photo credit: High Court of Australia.

On a practical level, the fact that female judges were interrupted at a higher rate meant that they were disadvantaged during their participation in oral argument. Oral hearings provide a crucial opportunity for High Court judges to test hypotheticals and interrogate important questions with the advocates. These pre-emptive interruptions reduced the judges’ capacity to ask meaningful questions, and often led to them losing the opportunity to pursue a line of thought. This casts doubt on the substantive equality of women on the High Court, which is in turn a matter of concern for the integrity of the High Court as a representative institution in our liberal democracy.

Representation

Conversely, the differential treatment of men and women on the Court challenges a common feminist assumption that once women represent a ‘critical mass’ in an institution, this is sufficient to transform its patriarchal character. My study suggests that, in reality, female judges are still seen as women first and judges second by the advocates who appear before them, which challenges the transformative potential carried by the presence of women alone.

These sobering realisations suggest that our policy solutions towards gender equality in the law must be geared towards transforming the discourses of power embedded in these institutions.

Solutions

Chief Justice

In order to address the disparate treatment of male and female judges in our highest Court, I suggest that the Chief Justice must take a more active role in regulating advocates’ behaviour in the oral argument. However, I suggest that, at least in the short term, this regulatory role may be better achieved by a male Chief Justice who is less likely to be considered ‘biased’ or representing ‘women’s interests’.

Unconscious bias training

On a more macro-level, I suggest that unconscious bias training is essential in order to draw attention to interruption as an artefact of conversation that is more commonly perpetuated by men against women. It would be helpful for male barristers in particular to be made aware of studies such as this, and to undergo broader unconscious bias training so that they can self-reflexively regulate their own speech behaviour. There is no reason why such training should not be extended to law schools.

This post is part of the Women's Policy Action Tank initiative to analyse government policy using a gendered lens. View our other policy analysis pieces here.

Imbalance of power: Female high court judges treated as ‘conversational inferiors’