The Right to Civil Counsel: Gender Disparities in a Lawyerless Court
Upon approaching the Supreme Court, visitors, justices, and litigants read the phrase, “Equal Justice Under Law.” These four words, chiseled into the heart of the building, could not be more incorrect in today’s legal landscape. Access to lawyers and justice in America is indeed inequitable. What’s broader: the issue exacerbates America’s economic and gender inequality crisis. Yet for too long, scholars and authorities alike have overlooked this legal obstacle.
While the 1963 Supreme Court case Gideon v. Wainwright granted a right to counsel for all people, it did not extend beyond criminal matters. For civil matters—eviction, abuse, abortion, etc.—poor individuals are denied the right to public lawyers. In effect, this inhibits their ability to use justice systems and enjoy civil rights. Lacking legal resources, impoverished individuals are forced to represent themselves and are much less likely to have their needs met.
This burden falls disproportionately on women. In 2014, one report found that nearly 85% of civil litigants in California family courts without an attorney were women. Countless other studies around the country find that women and their interests are unrepresented in civil court. Intersectionality, too, comes into play: women of color confront this justice deficit even more. In aggregate, the fissure in America’s judicial system runs deep: in 2017, low-income individuals—a significant majority of whom are women—received inadequate or no legal help for 86 percent of their civil legal problems.
In the summer of 1947, Abby Lassiter, a Black mother, faced the North Carolina State Court to fight for her parental rights. Because she couldn’t afford an attorney and the state wouldn’t provide one, Lassiter struggled to act as her own lawyer. Ultimately, she lost. The court separated Lassiter from her child and terminated her parenthood. In Lassiter v. Department of Social Services, the Supreme Court found that Fourteenth Amendment “due process fairness” does not apply to poor civil litigants. Quite simply, indigent individuals are not entitled to lawyers in civil cases. This consequential ruling continues to affect women in three primary legal domains: a) Abortion, b) Domestic Violence, and c) Eviction.
The lack of a right to civil counsel could not persist at a more dangerous time. With Roe v. Wade overturned, twenty-two states are set to restrict abortion as of August 2022. Enforcement of these restrictions will almost certainly intrude on privacy, in contravention of the Fourth Amendment’s protection from unreasonable searches. For example, prosecutors may interrogate women about “drug use,” and police may “root through trash bins . . . for empty liquor bottles,” they may access “text messages . . . …with intimates,” or even “coerce . . . medical professionals.” To legally combat these civil privacy violations, poor women need a right to counsel. After all, the complexity of Fourth Amendment jurisprudence requires profound legal knowledge that very few laypeople hold. Devoid of counsel, poor women will be stripped of their right to privacy. Even more terrifying is that some states may elevate the punishment for abortion to the death penalty, making the scarcity of counsel potentially fatal. Put differently: invasive and often incorrect civil privacy violations in a lawyerless court can push a case into a death penalty criminal proceeding. Though women would have a right to counsel in such a criminal proceeding, a civil right to counsel could prevent them from enduring a criminal proceeding in the first place.
Simimarly, quarantines during the COVID-19 pandemic precipitated an alarming rise in domestic abuse—in 2020, global domestic violence cases increased by up to up to 33%. Outside of the pandemic, domestic violence affects over 12 million households annually and disproportionately impacts women. Indeed, roughly 90% of reported domestic violence is caused by males in heterosexual relationships. Many legal tools exist to stem this tide of domestic violence, but the lack of free civil counsel often prevents these tools from having any real impact for poor women. For example, civil court orders—an essential tool for combating domestic violence—allow for “judicial intervention” in abusive relationships. Yet one study found that “83 percent of victims represented by an attorney were able to obtain a protective order, whereas only 32 percent of victims without an attorney were able to do so.” Impoverished women without legal assistance rarely get the resources needed to end violence. For domestic violence-related divorces, too, the power dynamic of a lawyerless court leans heavily in the direction of men with attorneys.
And this dynamic is particularly prevalent among the Native American community, where women struggle to access justice and escape domestic violence. According to the Indian Law Research Center, “More than 4 in 5 American Indian and Alaska Native women have experienced violence, and more than 1 in 2 have experienced sexual violence.” Because so many poor Native Americans, who aren’t well-versed in Western law, are denied civil lawyers, they are unable to fight domestic violence. This demonstrates the discriminative impact of administering justice––the absence of a right to civil counsel effectively shuts the critical window of justice for many Native American communities.
In a post-pandemic world, evictions are rising precipitously because of soaring rent prices. Further augmenting the issue, evictions are one of the most common lawyerless cases of all civil justice. Eviction—the practice of removing people from their houses—is well-known for its adverse impact on health, child education, homelessness, and unemployment. Women disproportionately experience these impacts. The gender pay gap forces women to spend a much higher proportion of their salary in rent than men, which increases the likelihood of women not being able to make rent. One 2012 study of courts in Milwaukee found that women “constituted 72% of tenants in eviction cases.” Making matters worse, Black women are 2.5 times more likely to be evicted than Black men. In Philadelphia, a series of eviction examinations found that 70% of cases were filed against women of color. This power differential extends to the landlord as well. Ninety percent of landlords can access vast legal resources to win eviction cases, while 90% of the female tenants facing eviction have no legal representation or resources. In aggregate, millions of women and their children are thrown out of their homes and pushed into poverty because of America’s aristocratic justice system.
The Equality of Arms––a principle which emphasizes equal opportunity between parties before a tribunal––speaks volumes about the severity of each of these problems. Without appointed public counsel, poor and uneducated women are ambushed by well-versed lawyers with drastically superior resources. At that point, cases are ruled not on the basis of justice but rather on resources. When women’s rights and even lives are at stake, this evil inequality assuming the shape of justice should have no place in courts.
Issues such as abortion, domestic violence, and eviction are only the tip of the iceberg — poor litigants also face legal challenges in lawyerless court cases involving child custody, debt collection, healthcare, immigration, and several other areas.
When women are denied representation and, consequently, lose their trial, the development of law slows. Debt collection law, for example, has rarely advanced because in several jurisdictions, wealthy creditors are the only partywith lawyers over 90% of the time. Furthermore, as women are disproportionately denied legal representation, their needs are also reflected much less in the development of law. This perpetuates the systematic subordination and ignorance of women’s interests that has pervaded US history.
Lawyers are the enforcers of constitutional rights. So when women have disproportionately less access to lawyers, they have less access to America’s democratic and constitutional protections. While Gideon v. Wainwright spawned a coalition of lawyers ready to defend individuals—who are predominantly men—facing criminal charges, America is yet to form a coalition that protects civil litigants—who are predominantly women. On the whole, this justice gap has reinforced economic privilege and distorted the checks and balances that prop up American democracy.
Areas for Reform
In 2020, the “Recognizing the Right to Counsel in Civil Proceedings Act” was introduced to the House Judiciary Committee. Importantly, it would reinforce and assemble state-wide efforts to guarantee the right to civil counsel. Unfortunately, the bill has remained tabled for two years because Congress has prioritized other issues. The gendered effects of lawyerless courts, however, have proven urgent given the COVID-19 pandemic and the Supreme Court’s overturning of Roe v. Wade. Congress can extend the arm of justice to women by pushing this bill forward.
The process shouldn’t be rushed but instead pointed. Congress should take New York City’s initiatives as a model. The city crafted a program to provide “a right to appointed counsel for individuals living below 250 percent of the federal poverty guidelines.” During the first year of the program, 84% of the poor tenants who received a lawyer (21,955 individuals) remained in their homes. Such success should be mirrored on the national level through the “Recognizing the Right to Counsel in Civil Proceedings Act.”
On top of legislative solutions, the Supreme Court could strengthen America’s civil justice infrastructure in three ways. First, the Supreme Court case Goldberg v. Kelly could be used as a legal framework for free appointed civil counsel. The majority asserted that “general welfare” must be promoted by granting the poor “the same opportunities that are available to others to participate meaningfully in the life of the community.” Civic participation in the judicial system categorically falls under this “community participation” doctrine. To that end, poorer women and all indigent litigants should be constitutionally entitled to free civil counsel.
Second, the Supreme Court can look to the Fourteenth Amendment’s “equal protection under the law” clause. Massachusetts v. Feeney indicates that a disparate impact on a group can trigger the Equal Protection Clause. Here, where the lack of civil counsel disproportionately impacts women, the clause could be applicable because the local and federal governments have refused to provide free civil counsel, despite women being unequally harmed.
Third, Fourteenth Amendment due process interpretations have emphasized the value of civic participation. The lack of civil counsel subverts democratic participation in law and, therefore, due process. The Supreme Court must recognize how this strengthens the tide of procedural inequality and openly violates the facets of Fourteenth Amendment jurisprudence.
Beyond the four walls of the courtroom, millions of women resist reporting domestic violence, protecting their privacy, and even fighting for their homes solely because they can’t afford lawyers. And take a look inside the courtroom, and disadvantaged women grapple with highly prepared legal experts. As such, America has effectively suppressed female voices in its courts. Breaking these long-standing legal barriers and closing the justice deficit will be a cultural shift, but it must be done by recognizing the constitutional right to a lawyer in civil trials.
Ashwin Telang is a writing intern at the Borgen Project, an organization which aims to make international poverty a focus of policy. For their excellent editing and valuable suggestions, he is incredibly grateful to Taylor Nchako and Danny Damitio.