One Woman’s Quest for Equality and Fairness: The Impact of Gender Bias on the Judicial Decision-Making Process

For retired Justice Sheila Prell Sonenshine, achieving judicial equality and fairness has been a mission. As a college student working for Neighborhood Legal Services, she witnessed the judicial system’s disparate treatment of litigants based on gender, race, ethnicity and economic status.

In the 1970s, as a new lawyer, Justice Sonenshine encountered gender bias not just from fellow lawyers, but in the courthouse as well. This led her to start her own firm in Orange County, California, eventually growing it into one of the larger and more successful in the area.

After 10 years in practice, Governor Jerry Brown appointed Justice Sonenshine to the Orange County Superior Court, where she served as presiding judge of the Family Law Panel. In 1982, she was elevated to the newly created Court of Appeal, 4th District, Division 3, as one of the original four justices. Among her many accomplishments on the bench, she inaugurated the state's first mandatory appellate settlement program.

Throughout her long and distinguished career as an attorney, superior court judge, appellate justice and JAMS arbitrator and mediator, Justice Sonenshine has focused on combating biases and illuminating their effects on judicial decision-making.

As a champion of equality, Justice Sonenshine has earned respect from and been recognized by the Orange County community and the profession with many awards and honors. Most recently, she was named one of Loyola Law School’s 50 Most Inspirational Alumni.

We recently sat down with Justice Sonenshine to discuss the important topic of gender bias and the law:

Q. What was it like starting your career in a predominantly male industry?

Justice Sonenshine: In the early parts of my career, I was a bit of an oddity. In Orange County there were just so few women lawyers and no female judges. We definitely stood out! However, over the years, what really gnawed at me was the embedded gender bias in the decision-making process.

I’m not sure judges or juries were even aware of this bias or how it might have affected their decisions. For example, back in the day, a judge in a chamber’s conference might have asked the lawyer representing the wife in a divorce how attractive she was. The more attractive the wife, the less concerned the judge was about establishing appropriate spousal support, based on the theory she would soon remarry!

Q. How has the legal profession evolved with regard to gender bias?

Justice Sonenshine: Before I answer that question, let me explain gender bias is not limited to bias against women. It effects all gender denominations. Indeed, once you view women a certain way, the tendency is to view men the opposite way. If you think women belong at home with their children, by definition, you believe men should not have primary or even joint custody. There are many other examples of the law treating men differently because of stereotypical biases about women.

In the late ’80s and early ’90s, state and federal bar associations and courts began looking into bias in the legal profession. I was on California’s first commission examining gender bias in the legal system. After extensive hearings and testimony from across the profession, we concluded gender bias was pervasive statewide and across every aspect of the law.

While we examined gender bias as it pertained to male and female lawyers—i.e., hiring, advancement, earning discrepancies, etc.—we were startled by its relevance to judicial decision-making. Within the commission’s findings, we discovered family law exhibited the most explicit examples of any specialty. This can be explained because family law deals with women and children, two groups that society has historically undervalued. Even today, some 30 years later, the legal profession fails to give family law lawyers their due respect, and courthouse family law panels are shamefully underfunded. 

In the past 50-plus years since I became a lawyer, our judiciary, mediators and arbitrators have made significant progress in hearing matters based on facts and law, not their personal conscious or subconscious prejudices or assumptions.

I am heartened to see the strides made by our judiciary regarding race, gender, age and religious diversity. But being completely candid, I think we have a long way to go and are nowhere near where we need to be in terms of equality and inclusiveness.

Q. Do you see any parallels between the racial justice movement in the U.S. and gender issues within the law?

Justice Sonenshine: Of course! Bias is equally offensive no matter the target. Only two considerations can premise the decision-making process: the facts and the law. This is true whether the case involves gender or race.

The Black Lives Matter movement is an important step in recognizing the necessary changes the legal system must make to guarantee greater racial equality. 

Bias of any kind has no place in the profession. We can’t ignore the injustices of the past or be too vigilant as to present issues. If change is to occur, we must embrace the problems and deal with them.

Q. What are your current observations as a JAMS neutral?

Justice Sonenshine: JAMS has embraced diversity and equality and amplified different viewpoints. Within the organization, 43% of JAMS’ senior management are women and 25% are diverse. More broadly, 70% of JAMS employees are women and 49% are diverse. 

JAMS’ roster of arbitrators and mediators also reflects its commitment to diversity, and I’m continuously seeing increased diversity amongst the panel.

Finally, and very importantly, JAMS places a significant focus on education, offering courses on bias and the decision-making process.