Virginia Daily News



Published: Wednesday, April 14, 1999
Section: LOCAL
Page: C4
Daily Press, Hampton Roads, Virginia

Courtrooms are supposed to be sanctuaries of fairness and impartiality, but the tales of people shortchanged because they are male or female are too hard to ignore.

One female attorney says she still hears the occasional "sweetie" or "honey" thrown her way. Another says hard-charging women are looked at askance, while their equally aggressive male counterparts are praised. And countless men have complained of being cheated in custody hearings by judges who cling to the traditional view that young children must always be with their mothers.

"There are people out there who I know who have been discriminated against because they're male or female," said Eileen McNeil Newkirk, a Richmond attorney. "You just hear too many stories."

Those stories have prompted Virginia's first significant study of gender bias in state courts. A study task force, led by state Supreme Court Justice Elizabeth B. Lacy, will conduct the second of six public hearings around the state Thursday in Norfolk.

Virginia has lagged behind most states in addressing the issue. Since New Jersey first created a gender-bias task force in 1982, 42 states have conducted studies - most of which have resulted in ethical codes, new laws and training programs for court officials.

Traditionally, any mention of gender bias conjures images of women belittled by male judges or of female attorneys being unfairly treated as lightweights. Indeed, discrimination against women in the courts is still perceived as a problem. In a 1994 survey in Alaska, more than twice as many female attorneys as male attorneys in some areas of the state said they had seen judges show gender bias.

"Many women commented that while a male lawyer might be described as a 'zealous advocate,' a female attorney behaving similarly was described as being 'emotionally involved in this case,' " according to a report by the Alaska Justice Forum. Another attorney, according to the report, said that insurance companies "appear to offer women lower settlements."

But gender bias cuts both ways: Fathers are often treated unfairly by judges who favor women in most custody cases. Many judges, fathers' rights advocates say, still adhere to the "tender years" doctrine - that young children belong with mothers, who are assumed to be better parents unless proven unfit - even though it was abandoned in the 1970s.

"They might not like to admit it, but they're human, and it's difficult for anybody to eliminate their own biases in decisions," said Williamsburg resident John Vaughan, a founding member of the Tidewater chapter of the Children's Rights Council, an advocacy group for single fathers. "But these guys are handed tremendous responsibility. And, unfortunately, laws are not applied equally."

In fact, the Virginia task force has identified a wide range of topics to investigate. Those include the reasonableness of awards in child-support cases; discretion in enforcement of domestic-violence statutes; how judges handle sex-offense cases and when a victim's conduct history is allowed at trial; and biased language used in court documents, manuals and jury instructions.

At the task force's first public hearing last week in Richmond, one attorney held up a pre-sentencing report for her client in a criminal case. It read that points were held against him because he was male.

As part of the study, researchers at the National Center for State Courts in Williamsburg are pulling 500 random court files of divorce and domestic-violence cases from around the state. The sample will be analyzed to detect any patterns of bias in the rulings.

But some area attorneys said they had not witnessed any examples of discrimination in the courtroom.

"We have many new judges in this area now," said York County attorney Vicki Beard. "A lot of stuff might have been complained about in previous years, but I don't think we have problems now."

Dawn Sherman is a second-year law student at the College of William and Mary who will serve as the editor of the college's Journal of Women and the Law next year. She agreed that heightened awareness had reduced the perception that sexism was rampant in the courts.

"I don't feel I'm going into a system that is biased against me," Sherman said.

But overt discrimination has been replaced by more subtle practices, others said. And attorneys often must fight it on another front - among clients. That suggests that gender bias is alive and well in some courtrooms.

"The thing that I've found is some clients have a misconception that it's better to have a male attorney," said Newkirk, an attorney with Taylor, Hazen, Kauffman and Pinchbeck in Richmond. "I was told once by a female client that she needed a more established male attorney because she could do better. From clients, I've expected it a little bit. But you wonder where they get it."

- Patrick Lee Plaisance can be reached at 247-7821 or by e-mail at


A state task force studying the existence of gender bias in state courts will conduct its second public hearing at 6:30 p.m. Thursday in Norfolk. It will be conducted in the 11th-floor council chambers of City Hall, 810 Union St. For more information, call Beatrice Monahan at (804) 786-6455.