By Theshaya Naidoo – University of Kwa-Zulu Natal

“A fair judiciary is essential for a fair society. And a fair judiciary is one that reflects the

diversity of the society it serves.” – Sonia Sotomayor.

Introduction

The commemoration of the centenary of the entry of women into the legal profession prompts us to reflect not solely on the strides made but also on the enduring challenges that women have faced and continue to face within the profession. The past hundred years have seen remarkable advancements in gender equality within the legal sphere, yet disparities persist, casting shadows on the promise of true inclusivity and equal opportunity. Nowhere is this journey more pertinent than in South Africa, where the legacy of apartheid and ongoing struggles against systemic discrimination have shaped the trajectory of women in law. The primary purpose of this essay is to illuminate the significance of the centenary and explore the achievements and hurdles that failed to consume women in the legal profession over the past century while exploring the possibilities for a future that embraces equal opportunities.

Breaking through entrenched barriers, pioneering women like Charlotte Maxeke and Elinor Keshet started paving the way for future generations as they fought for the entry of women into the legal profession. Societal norms were shattered by their determination and resilience, which demanded that women’s intellectual prowess and legal acumen be acknowledged and recognised. During the subsequent decades, women experienced a gradual but steady increase in female representation within legal circles, with notable milestones such as the appointment of Bertha Collings as the first female judge in 1923. In South Africa almost 30 years later, in 1953, Frene Ginwala became the first woman to take silk (become a senior counsel) in South Africa, shattering another barrier.

However, this progress was not linear as many women were still relegated to subordinate roles that significantly limited their access to leadership positions, based predominantly on deep-rooted patriarchal structures and discriminatory practices, with women still being consumed by entrenched gender biases, unequal pay, and limited opportunities for career progression, despite consistent and passion – driven legislative reforms and affirmative action initiatives. While the centenary anniversary of women in law acknowledges the courage, resilience, and contributions of pioneering women who defied the odds to pursue careers in law despite facing systemic discrimination and entrenched gender biases, it provides us with an opportunity to reflect on the achievements and progress made, as well as the challenges

that persist, by prompting us to confront the persistent obstacles and disparities that hinder full gender parity in the legal profession.

Mother or Director?

Despite strides towards equality, gender pay gaps persist within the legal profession. Female lawyers statistically earn less than their male counterparts for the same work, reflecting systemic biases and discriminatory practices. It is proposed that closing these economic gaps perpetuated by gender inequality necessitates proactive measures, such as transparent salary structures, pay equity audits, and accountability mechanisms to ensure fair compensation for all legal professionals.

Similarly, the consistently long working hours of lawyers can create a conflict with childcare and familial responsibilities, disproportionately impacting female lawyers. Specifically, historical provisions of the Employment Equity Act (EEA) which only allowed ten days of parental leave for fathers, further exacerbated this imbalance, as it places the primary responsibility for childcare on mothers, reinforcing gender stereotypes and perpetuating inequality within the legal profession (and the broad formal employment landscape). However, the recent case of Van Wyk and Others v Minister of Employment and Labour has granted new parents the opportunity to share four months of parental leave, a significant departure from the previous policy, which allocated this leave exclusively to mothers.

While this development is laudable in many respects, it also highlights inherent inequalities that persist within the legal system and broader society. The judgment firstly acknowledges the disproportionate burden placed on women in childcare and familial responsibilities. Since the allocation of a mere eight weeks of leave to each parent is divided equally, the ruling falls short of international standards such as the International Labour Organization’s recommendation of 14 weeks of maternity leave. Moreover, the requirement for an agreement between parents to share leave poses challenges, particularly in situations where fathers do not reside in the same household as the child or where traditional gender roles prevail, thus perpetuating existing power imbalances and reinforcing gender stereotypes regarding caregiving responsibilities. While the ruling represents a step towards more balanced caregiving and gender equality, it underscores the need for comprehensive policy reform that addresses the systemic barriers and entrenched gender norms perpetuating inequality.

Consequently, many women are compelled to make sacrifices, compromising their career trajectories, or sacrificing precious time with their families to meet the relentless demands of the profession. This systemic inequity not only perpetuates gender disparities within the legal profession but also undermines the principles of equality and justice that lawyers are sworn to uphold. Women are deprived of the opportunity to fully engage in their professional pursuits, stifling their potential and relegating them to the sidelines of legal discourse. It is also important to note that this practice perpetuates a cycle of gender inequality, as the absence of female voices and perspectives in legal decision-making processes hampers progress toward achieving gender-responsive and inclusive justice systems.

Entrusted with the Law, But Are Our Sisters Denied Justice?

In South Africa, the legacies of apartheid compounded these challenges and personal and professional impediments based on gender, with women of colour grappling with intersecting forms of discrimination based on race, gender, and socioeconomic status. Subsequently, while the abolition of apartheid led to a surge in women entering the legal profession, it is necessary to recognise that actual progress extends beyond mere representation, as their presence alone does not guarantee equal access to justice for all since the promise of equality rings hollow if it does not extend to every woman, regardless of race, gender, or socioeconomic status. Structural barriers and systemic inequalities persist, limiting the ability of women, especially those from marginalized communities, to fully participate in and benefit from the legal system. Globally, 53% of women experience a legal problem annually, with only 13% having knowledge and seeking legal assistance or assistance from a third party. Factors such as lack of representation, financial constraints, geographic barriers, and cultural biases often prevent women from accessing legal services and asserting their rights effectively.

Now What?

Looking forward, it is necessary to prioritise equal opportunity through a multi–faceted approach that encompasses legislative reforms, institutional support, and cultural shifts. Despite South Africa’s history with discrimination, we occupy a unique position to build on the foundation established by progressive policies such as the Employment Equity Act to ensure that gender parity is not merely an aspirational goal but a tangible reality. From a broader cultural perspective, inclusivity, and mentorship within legal institutions is paramount. Specifically, mentorship programs, leadership initiatives, and networking

opportunities can empower aspiring female lawyers, providing them with the support and guidance needed to navigate the complexities of the profession provided by individuals who reflect their lived experiences. Specifically, the integration of affinity groups within legal organisations can address the unique needs and experiences of women lawyers and provide a safe space for networking, mentorship, and professional development.

Similarly, addressing implicit biases and promoting diversity training can help dismantle barriers to advancement, fostering an environment where meritocracy reigns supreme. The institution of mandatory implicit bias training for legal professionals can raise awareness of unconscious biases and stereotypes that may hinder the advancement of women in the legal profession, thus encouraging awareness and understanding, organisations can create a more inclusive and equitable work environment.

Beyond institutional reforms, societal attitudes toward gender roles and expectations must evolve. Challenging stereotypes and promoting positive representations of women in law can help shift perceptions, inspiring future generations to pursue careers in the legal profession without fear or hesitation. The celebration of the achievements of impactful women and the amplification of their voices will facilitate a more inclusive and equitable society where every individual, regardless of gender, can thrive.

Conclusion

Consequently, as we commemorate the centenary of women entering the legal profession, we must reflect on the overall goal to create a legal profession—and society at large—that values and supports the full participation of individuals of all genders and, subsequently, confront the stark reality that despite significant strides, genuine gender parity remains elusive. It is not enough to merely acknowledge the achievements of pioneering women; we must actively work to dismantle the barriers that continue to impede progress. Gender pay gaps, unequal parental leave policies, and systemic biases within legal institutions serve as painful reminders of the work that lies ahead.

However, the acknowledgment of these challenges ensures that we recognize the immense potential for change and growth, with proactive measures, such as transparent salary structures and comprehensive parental leave policies, encouraging a professional environment where every aspiring female lawyer has the opportunity to thrive and succeed on merit alone. As we look back and step forward, – let us remember the shoulders upon which we stand—those courageous women who paved the way—and honour their legacy by

continuing to push boundaries, break barriers, and build a future where the scales of justice truly balance for all. Inspired by the sentiments of Eleanor Roosevelt, ‘Justice cannot be for one side alone, but must be for both,’ we must work together, united to ensure that the next century of women in law is defined not by limitations but by boundless possibilities and the triumph of equality, that is characterised by enjoyment and involvement in the judicial system.