Sem 2 Wk 12
About three months ago, I was sitting in a large lecture theatre abuzz with nervous energy, as I, along with the rest of the first year cohort, was about to commence the final exam to cap off our first semester — Torts.
Reading time began, and the sharp cacophony of 200 students flipping open the question booklet was quickly replaced by a tense silence. I pored over the hypothetical narrative intensely, making sure I spotted all the issues. Okay we’ve got a clear duty here… and there’s breach… hmm is there vicarious liability?… Hold on. Is this character a… bisexual man?
After the exam ended, I was eager to discuss my realisation with my friends.
‘Did you notice that in the hypo—’
‘Let’s not talk about the questions,’ someone cut me off, understandably worried I was about to dive into a post-mortem of the exam itself.
‘No, I mean. Did everyone realise one of the men was bi?’
A few people had, most others hadn’t. But for those who did, we acknowledged that there was something rather special about the fleeting moment of recognition in an otherwise stressful situation.
I’d noticed queer representation in other Torts hypotheticals throughout semester. Sometimes the characters were openly queer; sometimes ambiguity was created by gender-neutral choice of the word ‘partner’.
I spoke to Ian Malkin, who told me that queer characters have featured in Torts hypos for years. He said that in crafting these scenarios, he ensures that women and queer characters are not always the victims / plaintiffs, not always the defendants, just as commonly doctors as any other profession — a combination of the careless and the careful. In that way, the hypotheticals mirror society. He also mentioned that the same diversity of representation was afforded to ethnicity, where possible, via names.
On its face, whether or not a hypo designed to help students understand legal issues is queer-inclusive may seem trivial. But it isn’t. Implicit in the choice of these characters (and in their diverse portrayals) is an affirmation of LGBTQI+ existence and acceptance. The world is not only comprised of white, hetero men — and unconsciously treating those characteristics as a ‘neutral baseline’ has the effect of otherising everyone else. Moreover, representation is important to strengthen our collective understanding of how the law affects different members of society differently (see: mandatory sentencing). Diverse representations can therefore trigger deeper critical reflection and engagement with the law.
More recently, I had a similarly pleasant experience. I noticed the way that my Disputes and Ethics tutor uses a female pronoun to refer to the theoretical barrister or judge when he discusses a hypothetical scenario in class. The small joy of hearing, ‘Her Honour would then decide…’ never gets old.
Most days at the law school, we are inundated with representations of men. If you are assigned any High Court judgement pre-1987, you will be exclusively reading words written by men. If you skip across the pond, you will read the words of Lords. Every day, we are made privy to the breadth of historical (white) male knowledge and the way their words and thoughts influenced the fundamental tenets of society — from shaping the common law, to the constitutional foundations of the country we live in. There is nothing we can do now to alter the fact that, historically, the doors that led to spheres of great influence and power were closed to marginalised groups. But we can make sure that continues to change in the future.
The Honourable Michael Kirby has spoken about the importance of avoiding sexist or gender-specific language in judicial reasons. As he has pointed out, most High Court decisions in recent years have mostly avoided the exclusive use of the male personal pronoun.
A few weeks ago, our Consti lecturer (as part of her class feedback following our moot) urged us to remember that not all High Court justices are men, stressing this point after (presumably) people referred to women such as Susan Kiefel or Mary Gaudron as “his Honour”. Of course, this is important, not only because the assumption is factually incorrect, but also because it reinforces a damaging stereotype.
Stereotype threat refers to the real-life impact that pervasive stereotypes about your race, gender or sexuality can have on your cognitive abilities or beliefs about your personal capabilities. One way to counter this is through representations that challenge those stereotypes. For example, access to representations of intelligent, successful women in fields typically dominated by men — from the bar to the bench — either consciously or unconsciously can help dismantle these perceptions.
That’s why I cherish these small representations that contradict the de facto assumption that a judge is a man, or that heterosexuality is the norm. I cherish them because they not only reveal the world as it is (hello, queer people and female judges exist!) but also progressively aid in constructing a future where it will be less easy to slip into these lazy and problematic assumptions.