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Normalisation and Conscious Bias Correction on the Bench

repeat offender
This paper arose from a panel discussion amongst recent law school graduates, current law students and intermediate Court Judges on the need for Courts to look to the future. I advocated for a broader view of diversification amongst the judiciary, given that the current debate is limited to elevating more women to the bench. The paper is an attempt to bring that discussion to a logical resting point, and to open the debate to other people passionate about public representation and participation of minorities.

This paper focuses primarily on ‘visible’ or ‘objectively verifiable’ needs as the most convenient point of departure, and therefore is not well-equipped to discuss invisible disadvantage such as classism, invisible disabilities, and racism against people with white-passing privilege.

1: The Incomplete Diagnosis

The National Attrition and Re-engagement Study (“NARS”) (2014) provided valuable information on the experiences of women in the legal profession. However, discussion of discrimination on the basis of disability or ethnicity was limited to two graphs, without demographic disaggregation beyond gender.

To the extent that the NARS sheds light on gendered experiences of careers in the law, it can only be authoritative in relation to the stereotyped woman, or the woman as monolith: middle class, sociologically white, not conventionally unattractive, able of body and (assumed to be) able of mind. However, the wheelchair-using woman’s experience of gender-based discrimination is profoundly different to the walking woman’s experience, and the brown woman’s experience of sexual harassment at work is unique to the colour of her skin.

How can we have any robust discussion about the need for representation when the impact of intersecting levels of disadvantage continues to be wholly absent from it?

2: The Term ‘Diversity’

We speak of ‘diversity’ on the bench and think of women, people with disability, people from lower socio-economic strata. The implicit assumption which forms the foundation of the term is that the dominant group – men, able-bodied people, middle and upper class people – are the norm, and that everyone else diverges from that norm.

It entrenches the idea that women on the bench are not the norm, and that ATSI people in public office are not the norm.

It entrenches the idea that the status quo in the Victorian County Court, being one white able-bodied middle class woman to two white able-bodied middle class men, is normal, and that every move toward a more representative judiciary is less so.

Rather than ‘diverging’ from a norm, why not ‘normalising’ towards proportionate representation?

‘Normalisation’ smooths out the centres of gravity and places everyone on the same plane. It expects black people on the bench and people with canes in public office. It implies that the current range of human experiences in the judiciary is abnormal, skewed towards a particular combination of traits – and that the status quo begs to be corrected. It demands full participation in public life for people who have traditionally not been considered the norm.

3: The ‘Pyramid of Attainment’

By ‘pyramid of attainment’, I mean to describe the traditional linear stages of the legal profession, whereby the lowest level is comprised of law students, and the highest level is comprised of Judges. Although applied specifically to the legal profession in this context, I believe it can be applied to any career in which there is a common expectation of linear progression.

I prefer this term to my first iteration of the concept, being the ‘pyramid of achievement’. The ‘pyramid of achievement’ implies that there is only one way to achieve great things with a law degree.

The words ‘achieve’ and ‘achievement’ have traditionally been associated with reaching a goal through personal exertion. It is individualistic, and is weighted by reason of its traditional use in prizes and other forms of public recognition. On the other hand, the words ‘attain’ and ‘attainment’ have been less widely used and do not therefore have the same connotative burden.

It is more neutral and does not contain the implication that a goal has been reached through particular individual efforts. ‘Achieve’ and ‘attain’ are synonymous, ‘attain’ and ‘get’ are synonymous – but ‘achieve’ and ‘get’ are not.

The corollary is that ‘attain’ and ‘attainment’ have less lustre. An attainment is less laudatory than an achievement, which means that ‘pyramid of attainment’ may have the unintended side effect of directing too much attention away from the personal efforts of people who reach higher levels. To this, I say that we have been pigeonholed into a framework of dichotomies – for example, we tacitly subscribe to the idea that if being able to walk independently is a good thing, then not being able to do so is a bad thing. This is a result of our enmeshment with the public consciousness, which functions at a much simpler level than the individual mind. It is not necessary for the individual mind to cling to simplistic dichotomies, whereby each option is mutually exclusive to the other.

In choosing the term ‘pyramid of attainment’ over the ‘pyramid of achievement’, my intention is to draw more attention to the systemic advantages that some people have over others, without erasing the efforts that all people have to make in order to reach their goals. As alluded to above, it further deconstructs the monolithic view of achievement in the legal profession. Using a less weighted word places equal emphasis on personal success without denying that there are many ways to find that success.

4. Attrition from the Pyramid of Attainment

The higher up the pyramid of attainment, the less representative the group is. Without denying that law students as a group are relatively unrepresentative of the community demographic, minority people attrite from each level in greater proportions. This effect is most visible in women in the profession. Female law students consistently outnumber male law students, but this is no longer the case merely years after they graduate.

Why do minority people attrite? Is it because they, as a group, are less capable than people from the dominant group? This is partly the answer: to be more specific, it is not because minority groups are less capable, but because they are perceived to be less capable. Research on female teachers and female managers has quite clearly demonstrated unconscious bias against women, for one.

The more prevalent factor in minority attrition is that the workplace environment, much like the broader social environment, is adapted for the majority rather than the minority. This can be tangible – heavy doors that require a strong push are clearly adapted for people who have both strength and leverage – or intangible – discussions about summer homes and overseas vacations exclude people who do not have the assets and resources to access these privileges. While these appear to be quite superficial, they carry a cumulative burden that is not easily explainable to people of the majority. An effective metaphor used in social justice discourse is that having coffee spilled on you once is an inconvenience, but the same occurring five times in a week is a source of great frustration!

One level down from the bench, at the end of this long and cumulative process of attrition, what ‘diversity’ is there? In the current pool of possible candidates for a Judgeship, what proportion are women? What proportion have a visible disability? What proportion are (openly) LGBTQIA+?

While attrition from the legal profession certainly reflects patterns of social ascension in all other aspects of the community, it also shows the pressing need for normalisation.

5: The Future Role(s) of the Judiciary

There is a role for the judiciary in normalisation.

A: The framework of accommodations

Some attention has been drawn to the idea that more women will rise higher in the profession if provision is made for flexible work arrangements. This order of thinking is not entirely constructive.

Rather than considering that women need a particular form of work, perhaps it is more appropriate to consider that people with particular traits need forms of work that are best suited to those traits. These should be called label-based accommodations and needs-based accommodations respectively.

Needs-based approaches look holistically at the candidate and what workplace adjustments or value-adds can make the candidate the best fit for the position. They implicitly acknowledge that the workplace environment in its current form is not appropriately adjusted for that candidate’s needs.

Label-based approaches make assumptions of the candidate based on their traits: a female barrister with children may be offered part-time work but a male barrister with an infirm parent may not be. There are three problems with this approach.

The first is that label-based accommodations entrench stereotypes and single narratives, because we consider the candidate as the label first and a person second.

The common understanding of a stereotype is that it always has a ‘grain of truth’. This is not necessarily the right approach either. Stereotypes are not the expectation of a person based on what someone like them has done before. Zoom out of any one particular interaction, and we see that a stereotype is the interpretation of an action performed by a particular demographic by the demographic that shapes the public narrative.

For example, the stereotype of a Chinese native speaker who learns English is that they do not speak ‘proper’ English, and are therefore less intelligent, because they do not conjugate their English verbs. This is an interpretation of that English learner’s abilities and intelligence based on ignorance of Chinese grammar. When a Chinese native speaker fails to conjugate their English verbs, it is because they have mastered Chinese grammar, which uses tense markers (much like modal verbs) instead of conjugations. Quite obviously, this is not a mark of their intelligence or otherwise.

To use a label-based approach feeds into existing stereotypes, because these stereotypes are the most obvious and most convenient source of (mis)information about people under that label.

So, too, does the single narrative – that is, the belief that a particular kind of person must always have a particular story. One example is the narrative that blind and visually impaired people are helpless. This is obviously not the experience of all blind and visually impaired people, many of whom are independent and have important roles within their communities. However, it is the narrative that overwhelms all others, because it is convenient to tie all blind and visually impaired people into one reductive and paternalistic narrative.

Using label-based accommodations entrenches the single narrative, perhaps even against the candidate’s will and despite their unique needs. They are reinforced through people who hear about the accommodation without knowing the circumstances thereof.

The second problem is that it risks the construction of a micro-environment that is, again, not appropriately adjusted for the candidate’s needs. The imposition of a standard answer to a unique question recreates, albeit on a smaller scale, the ill-fitting environment that an accommodation seeks to tailor. For example, a blanket rule of offering a part-time role three full days a week to people with chronic illness may not suit candidates who are better suited to, say, five mornings a week, because their energy flags in the afternoon.

The third is that such accommodations can cause discontent in the dominant group. A male Judge with a chronic illness may question why he was not offered flexible work arrangements when a female Judge was offered the same for her caregiving responsibilities. When people do not understand, or refuse to understand, the structural imbalances in our community, they perceive the offer which is made only to the female Judge to be discriminatory toward the male Judge. This opens up a longstanding discussion which will not be rehashed here – suffice it to say that this discontent is understandable, albeit it may not be justified on a systemic view of the transaction.

The strength of needs-based accommodations is that they can cater to any candidate, including a candidate from the dominant group – be it men, white people or abled people. This could, to some extent, neutralise criticisms about ‘reverse discrimination’ and favouritism.

B: Institutional Awareness

The effect of the pyramid of attainment is to drown out minority perspectives and voices at the highest levels of institutional power. While acknowledging the immense dedication and passion required to even reach the lowest level of the pyramid, a law student has already benefited from minority attrition. A capable student from a public school and without the blessing of private tuition has quite possibly lost out on a place in a law degree to a student who has had every educational opportunity. A Judge has most certainly taken advantage of many opportunities afforded them by reason of their membership in a dominant group.

Thus, it is not solely the duty of institutions such as universities and firms to push for normalisation. These institutions are gatekeepers to higher systems of privilege. Judges and other senior practitioners are those who have passed those gates – not easily, but with fewer hurdles and barriers.

The corollary is that the space that you currently occupy – whether as a Judge or a law student – could have gone to another if they had had the same opportunities as you. If they were free of the tacit assumptions that order and give meaning to social interactions – if a yellow lawyer were always presumed to be competent in English despite their appearance or accent – perhaps they would have been offered that brief, or that job.

For as much as we place Judges upon a pedestal, they too are members of the community. The perception that Asians are submissive and lack initiative permeates the community, whereas the reality is that they will act in deference to elders. People diagnosed with schizophrenia have been perceived to be violent and erratic, whereas the diagnostic criteria were amended from ‘calm’ to ‘aggressive’ at the same time as black protests intensified during the United States Civil Rights Movement. These perceptions surely do not dissipate on the courtroom steps.

The unique challenge for the legal profession is that case theories at trial follow classic tropes; that is, they take the parties to the case and draw them as caricatures so as to be easily grasped by the finder of fact. A woman who kills her husband is cast by the prosecution as a harridan and a witch, whereas the defence casts her as a helpless, frail mouse who reached the end of her rope. These stereotypes are as familiar as they are dangerous.
So a lawyer’s socialised unconscious bias is reinforced time and again, merely by doing one’s job cogently and efficiently. We entrench, at the highest levels of critical thought, the same narratives as any lurid tabloid.

C: Conscious Bias Correction and ‘Privilege Neutrality’

The need for conscious bias correction in the legal profession is ubiquitous. While assumptions help to order one’s perception of the world, they become burdensome for a community that does not have the benefit of, say, a Judge in a wheelchair whose experience of the world is quite different from others who walk.

So how do we do this? We apply to our world view the same critical abilities which we apply to our work. While acknowledging the pragmatic need for tropes in case theories, we become aware of why they exist and how they harm not just the subjects of those tropes, but also the community. We consider whether a barrister’s conduct and demeanour would be appropriate for someone of the opposite sex and adjust our opinions accordingly. Of course, this requires some background reading – but this is not any more than the due diligence we conduct in the office.

I wonder whether it may assist us to adopt the language used in environmental activist spheres. ‘Carbon neutrality’ describes the practice of offsetting an organisation’s carbon emissions so as to achieve net zero emissions. ‘Privilege neutrality’, to me, is a commitment to undoing the damage that entrenched stereotypes and work practices inflict upon the individual, the legal profession, and the community. It is a rather more amorphous concept than carbon neutrality, albeit it may be quantifiable within defined parameters, such as ethnic discrimination on the basis of one’s name.

This can be as simple as offering to also speak to a public school about life in the legal profession every time one is approached by a private school. It may be more nuanced, such as becoming an advocate against Aboriginal and Torres Strait Islander institutionalisation after becoming familiar with the cultural protocols of the local nations.

I draw attention to one particular aspect of the pyramid of attainment; namely, that minorities become progressively rarer at each level of the pyramid. This, in my opinion, calls for lawyers to share their wisdom and experience with people much further down the pyramid than the level immediately junior. The prime example is the Judge’s Associate. It is hoped that such practices will inspire and encourage others at the same level, thereby reducing attrition and increasing proportionate representation.

6: A Tentative Conclusion

I am aware that my recommendations are radical at best and subversive at worst. It is quite possible that people who agree with my views will be accused of reverse discrimination and bias. It is also quite possible that the legal profession will be enriched and empowered by a wider variety of life perspectives than that which we see on the Bench today.

Normalisation is more pressing now than ever, in the face of such social developments as Australia is currently undergoing. If the judiciary is not truly representative – that is, if it does not reflect the full range of human experiences – how can it claim to dispense impartial justice?

And say if the normalisation drive goes ‘too far’, so to speak, and dominant groups become underrepresented on the judiciary?

Then it is prudent to recall who made the laws that these Judges will interpret.

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