A feminist legal scholar warns that gains made by women in the law and legal profession could be under threat
When Professor Margaret Thornton considered practising as a barrister after graduating from law school in the late 1970s she was told she was “the best qualified but the wrong sex”.
She embarked on an academic career instead, and has since been at the forefront of campaigns to tackle sexism in the law and the legal profession. Now a professor in the ANU College of Law, she fears that gains made during the past 30 years will be eroded and laments the increasingly commercial focus in law.
Margaret was active in the women’s movement in Sydney in the 1970s. She had moved to the metropolis from rural Tasmania to further her education, graduating in arts from the University of Sydney in the late 1960s. She completed a law degree at the University of NSW in 1978, winning the University Medal.
At the time sexism was implicit in some common laws, which look mediaeval by today’s standards. Rape in marriage was not unlawful and widows could have their damages (for wrongful death of a husband) reduced if their marriage prospects were considered good ─ based on an assessment of their looks, she says.
“There were other curious ones in which a man could sue someone who injured his wife because he lost sexual and household services, but wives couldn’t sue if their husbands were injured,” she says, adding that variations of this law remain in some jurisdictions.
“As soon as those anomalies were exposed most were changed,” she says. “By and large our legal system believes in equality before the law. Procedural equality is a strong belief, but not substantive equality.”
She was part of the push for anti-discrimination legislation but describes that issue as “volatile”. “It’s always under review,” she says. And fears abound that moves to consolidate federal laws on different kinds of discrimination – on the grounds of sex, age, race and disability – could put gains at risk.
“Because we have a hung parliament, it’s a difficult time to put through innovative legislation,” she says. “The idea was to bring them together but it’s a vexed issue. One always has to be on the alert because things can change for the worse so easily, and sometimes the problems are not foreseen when the legislation is drafted.”
She has seen law reforms for which she and other players had campaigned hard reversed in the past. “Sometimes I have had an influence in changing policy but then there has been a change in government,” says Margaret, who is wary about making extravagant claims about the impact of her work. “This is a constant problem in my area.”
Margaret’s academic career took off when she returned to Australia in 1980 with a Master of Laws degree from Yale University, where she had studied on a Fulbright Scholarship. She has held lectureships and professorial chairs at the University of NSW, the University of Sydney and Macquarie and La Trobe Universities. She has researched and taught topics ranging from constitutional law to discrimination and the law.
She has no regrets about choosing campuses over courtrooms. She has brought to her academic work the perspectives of an historian and philosopher. (She had briefly considered a career in ancient history.)
“As an academic, one has the ability... to be critical of the system,” she says. “I’ve been able to stick a pin in the system, exposing some of the problems in terms of gender bias and other elements of injustice – something which is very hard to do if you’re a practitioner.”
She has mounted her campaign to effect change through scholarship, advice to governments and United Nations agencies and by taking up key positions in learned societies and professional and academic bodies.
She has authored or edited six books, several of them published by Oxford University Press, and has written 26 book chapters, along with more than 60 refereed papers and scores of monographs, articles and reviews.
She has been a visiting fellow or visiting professor at several institutions, including Oxford University, University of London, Columbia University (New York), and several Canadian universities.
Among organisations she has advised are the Women’s Advisory Council to the Premier of NSW, the NSW Anti-Discrimination Board, the Human Rights and Equal Opportunity Commission, the Affirmative Action Agency, the NSW Law Reform Commission, the Australian Research Council and the International Labour Organization.
She is a fellow of the Academy of Social Sciences in Australia and foundation fellow of the Australian Academy of Law. She was formerly a member of the committee of Australian Law Deans and of the UNESCO Social Sciences Network.
Among her awards and honours is an ANU International Women’s Day certificate of recognition.
Law reform has been just one axis of her work; Margaret has also addressed discrimination in the legal profession. She is currently conducting a study, funded by the Australian Research Council, on work/life balance in the profession.
She has seen big changes since she graduated in law, at a time when there were few women practising in the profession and few female role models. Margaret says her main mentor was the legal theorist, the late Julius Stone, but she has gone on to support many young women.
Recent changes have not always been for the better. “In many ways there have been significant advances,” she says. “In other ways, things have gone off in other directions. I don’t support a liberal view of progress – that things are always getting better. They’re not necessarily.”
She says women now account for up to 70 per cent of law students but few make it to the top of law firms.
An online survey conducted as part of her current research project suggests that globalisation, which has seen big multinational law firms absorb or displace local ones, is partly to blame. To maximise profits in the cut-throat global market, work for big clients is divided between staff working in different time zones. Lawyers are often expected to be on call around the clock in a global village that never sleeps.
This puts women juggling work and family responsibilities at a disadvantage. Those who cannot be available 24 hours a day are often “marked as being disloyal”, she says. “They won’t get promoted and they won’t get partnerships.”
The practice often runs counter to the firms’ policies and rhetoric on work/life balance. “These two discourses are like railway tracks running parallel to each other but never actually converging,” she says. “The most authoritative and prestigious areas remain male–dominated. Women move into the pyramidal base of organisations. They’re prominent there but not in management positions.”
Men choosing to work flexible hours “are seen as occupying feminised positions”, she adds. “Like the women, they will leave.”
Margaret says a 2011 NSW Law Society study showed that 50 per cent of women left the profession within five years of entering it. “It’s a staggering attrition rate,” she says.
She says women face “residual suspicion” – an artefact of the classical period in which women played no role in public life.
“There was an enormous struggle in the late nineteenth century,” she says. “It was assumed that if women came into the profession, they would corrode the rationality of the law. They would cry in court. We haven’t totally overcome these stereotypes. I suggest there is still some residual suspicion of women in authoritative positions – women as judges. It’s only certain types of women who are seen to be acceptable. The bias operates at the subliminal level. It’s partly to do with women’s involvement in caring.”
Meanwhile, she says the legal profession is losing sight of its traditional professional values, with the focus shifting towards the maximisation of profits. The trend is reflected in some law schools, which are concentrating on training students in “marketable” specialist fields, such as those related to commercial law, rather than educating them more broadly.
“They are moving away from seeing education as a public good towards seeing it as a commodity for which people pay,” she says.
She joined the ANU partly because the institution gave her the freedom to continue big-picture research.
In the political landscape overall, she says, there has been a retreat from feminist values, which became more pronounced under the Coalition government. “Equal employment opportunity in the 1980s and early 1990s was a strong belief,” she says. “During the years of the Howard government, we saw a retreat from that idea of equality to a focus on the individual and the market.
“The language of EEO disappeared within organisations, so that they were no longer interested in women or Indigenous people. The focus was on mainstreaming. If the individual didn’t make it, that was his or her fault. As long as there was equality at the starting point, that’s all that mattered.”
And this, along with globalisation, says Margaret, is creating a new glass ceiling.