Gender, lawyers and professional expertise

by Maria Azocar and Myra Marx Ferree

Important changes are under way in the world of lawyers. Their work has become increasingly dominated by large organizations, globalization has re-structured their work to be increasingly transnational, and demographic changes have redefined the profession. For example, an increasing participation of women in the legal profession is a global trend, with Latin American countries leading the rankings in terms of the number of women who enroll in and graduate from law schools.

What can the sociology of professions say about these changes? The consensus view of the field would be that these changes will translate into increasing jurisdictional battles over lawyers’ claims to expertise. Expertise is sociologically understood as knowledge that people have to accomplish a given task (Abbott 1988; Freidson 2001; Larson 1979). In this scholarship, the focus of study is often on the sites where expertise is produced and recognized, for example in practices of credentialing and licensing. Gender (and other) inequalities in a profession would be analyzed in terms of women’s struggles with men who are often considered more valuable workers or through considering the causes and effects of sex segregation in setting values, rewards or access to power.

These are important insights, but from a gender perspective, expertise not only involves practices of discrimination against women or the segregation of women from men. Expertise can itself be gendered through the differential evaluations of competences and expert claims. Science studies, especially actor-network theory (Latour 1987, Eyal 2013), also suggest asking how objects, technologies, and institutions are gendered and how they acquire stability as jurisdictional boundaries. In addition to claims and competences, networks of social arrangements can be gendered, and their gender can work independently of the gender of the individuals making use of them to advance their relative position.

Based on in-depth interviews with policymakers and archival data in Chile, we examined the policy debates over court reform in family law and criminal law after this country’s democratic transition. Our goal was to see how gender applied to expertise as such. We defined gendered expertise as enactments of competences and claims organized around perceived gender differences and mobilized through gendered networks, and we found evidence of them in these debates.

Gendered competence

In terms of competences, criminal law reform advocates devalued the competences of their critics by gendering them not merely as male but as those of “old gentlemen.” The reformers presented their own competences as expressing a modern, technologically rational masculinity. The “old gentlemen” lawyers in turn accused the reform advocates of being too young and lacking a class pedigree, but this characterization failed to make inroads into the pro-reform lawyers’ self-presentation as embodying a middle-class male ethos of competitiveness, intelligence, and meritocracy. This positive redefinition of their competence emerged paradoxically from their class marginalization within the profession.

The male criminal law reformers also devalued the expertise of family lawyers working for the new democratic government. The government had officially proposed a family court reform as part of the transition to democracy. It was expected that a reformed family court system would advance the reconciliation of family members and strengthen the family. But criminal lawyers and judges devalued the competences of the family lawyers, describing them as feminine and as acquired “merely” in practical experience rather than by theoretical skill. They were accused of having a “therapeutic skill” rather than a juridical one.

Gendered Networks

Family lawyers were inside the government and their proposal was the top priority for the Secretary of Justice. But this insider position did not give them professional authority; the criminal lawyers devalued their work in gendered terms, describing them as “officeholders”, receiving orders from the Secretary of Justice, and lacking political ambitions. This viewpoint became widely accepted. Although family lawyers had allies in their reform project, this support came from psychologists and social workers, both professions that were devalued for a lack of perceived masculine rationality and aggressive ability. This contrasted with the criminal law reformers, who obtained support from economists at a small NGO. The alliance with economists, a respected social science, lent credibility to the reformer’s claims of expertise by virtue of the appeal to evidence-based knowledge of numbers and the implicit masculinity of hard science.

Gendered claims

Expertise was also gendered rhetorically. The diagnostic and treatment claims advanced by the criminal reform project were legitimated by the transitional rhetoric of “reconciliation.” For them, reconciliation meant that their project offered an opportunity for cooperation between men of the left and right in Congress in setting up neutral procedures and creating new judicial institutions (such as the U.S. DA’s Office and a Public Defender Office). The objective of indirectly monitoring judges’ performance was to democratize their culture, a political response to the judiciary’s prior outright collaboration with the dictatorship.

In contrast, claims of reconciliation carried a different, gendered meaning for family court reform. Rather than overcoming past political divisions, family court reform claimed to reconcile existing divisions among ordinary citizens as gendered members of the domestic realm. Family law was presented as a “special” type of law, encompassing therapeutic expertise, affective warmth, and altruism, rather than “real” law. Gendered female, family courts’ authority was redirected to informal mechanisms of conflict resolution (i.e. family mediation). This reform allowed men as lawyers and men in the domestic realm to avoid contact with “intractable female judges.”

Engendering Expertise

Criminal lawyers’ successful battle for gendering their competences, networks, and claims as expressing young, strong, technocratic, and politically neutral masculinity resulted in criminal law reform receiving far more political and economic support for its implementation than any other reform in Chile. Defined by Chilean politicians as “the reform of the century,” it took a monumental effort by its promoters to be achieved. It was aided by the sense of crisis that was part of the discourse in this difficult political transition. Notables of the legal profession saw this crisis itself as gendered: in 1994 women studying law represented 40 percent of first year enrollment. The judiciary was seen as particularly attractive for women because judicial posts secured a stable income and career, even though judgeships had low professional prestige. By winning ground for young men in criminal law, and further devaluing family law, reforms addressed the gendered crisis.

Gender offered a grammar with which to identify true expertise in law. The competences ascribed not only to men and women as individuals but to professional practice in different subfields of law, the networks lawyers had to other, gendered professions, and the rhetoric about reconciliation as goal of law reform were all part of constructing gender expertise.

Maria Azocar is a sociology PhD student at the University of Wisconsin-Madison. Myra Marx Ferree is the Alice H. Cook Professor of sociology at the University of Wisconsin-Madison. This article is based on “Gendered Expertise,” published in Gender & Society.