Every year in March, we get to make “herstory” (Cambridge Dictionary: history written from the point of view of women, and giving importance to their experiences and activities). By Congressional resolution, this month is recognized to celebrate the frequently-overlooked contributions of women to American culture. The theme of Women’s History Month this year is “Women Providing Healing, Promoting Hope.” According to the National Women’s History Alliance which designates the annual theme, this year’s theme is a tribute to the ceaseless work of caregivers and frontline workers during this ongoing pandemic and also a recognition of the thousands of ways that women of all cultures have provided both healing and hope throughout history.” https://nationalwomenshistoryalliance.org/2022-theme/
As trial lawyers, we know that healing and hope necessarily flow from balancing the scales of power and giving voice to the people who count on us to tell their stories. Despite legal and societal obstacles to their full participation as American citizens, women throughout U.S. history have heeded the calling of the legal profession, and paved the way for everyone to access the justice guaranteed under the Constitution.
The first woman to become licensed as an attorney in this country was Arabella “Belle” Mansfield. Raised by a single mother in Iowa (her father having left the family to join the California gold rush in 1850 and then killed in a tunnel cave-in), Belle was encouraged by her mother and older brother to excel in academics. She graduated college as the valedictorian of her class. She later joined her brother’s law office, and read the law under his tutelage. In 1869, Belle passed the bar exam and was admitted to the bar. Even though the Iowa Code limited those taking the test to “any white male person,” her unanimous petition for admission to the bar was approved by a local court. The court held that the affirmative declaration that male persons may be admitted is not an implied denial to the right of females. http://uipress.lib.uiowa.edu/bdi/DetailsPage.aspx?id=249
Although Belle never practiced law, she became a leader in education as a professor of mathematics at Iowa Wesleyan and Dean of the School of Art and Music at DePauw University. Belle and her husband, a professor of natural science, were active in the women’s rights movement, with Belle lecturing around the country and serving as the president of the Henry County Woman Suffrage Association, while her husband served as secretary. Id.
Over the following decades other women started to gain admission to the bar of one state, then another, usually with greater opposition than Belle faced in Iowa. In Virginia, Annie Smith, a Danville woman who studied law while her husband was a law student at the University of Virginia in the late 1880s, was denied admission to the bar because she was not a man. She took her cause to the legislature. The Virginia State Senate considered and rejected bills that would have permitted the licensing of women as lawyers in the 1889-90 session and again in 1891-92, finding humor in the idea that a married woman might become a lawyer and then choose to associate with another man in the practice of law: “The idea of my partner for life becoming the legal partner and associate of some other man! [Laughter.]” Peter Wallenstein, “These New and Strange Beings”: Women in the Legal Profession in Virginia, 1890-1990, 101-2 Va. Mag. of History and Biography, 194 (Apr. 1993)
“Herstory” favors the persistent. Smith’s hope for a change in the law in Virginia to allow women to join men in the practice of law was taken up by Belva Lockwood. A New York attorney and the first woman to practice before the U.S. Supreme Court in 1879, Lockwood made it her mission to overhaul the structure of opportunity for women in Virginia. Lockwood initially met with failure when a local judge denied her reciprocity petition for admission to the Virginia bar. She appealed to the Virginia Supreme Court, which upheld the local judge’s decision, and then appealed to the U.S. Supreme Court which sent her case back to the Virginia courts. Although Lockwood obtained her license to practice law in Virginia in 1894 upon rehearing in the state supreme court, her triumph was short-lived. When Lockwood appeared before the Virginia Supreme Court a year later to represent a client in his appeal, the Court refused to permit her to argue the case, ruling that Lockwood had to be a man to practice law in that court. The legislature followed suit and revised the law on admission to the bar to expressly limit admission to “any male citizen.” Id. at 201.
It was not until after Lockwood died in 1917 that the Virginia legislature again considered reforming the ban on women practicing law in the state. A 1918 Virginia Senate bill would have ended women’s exclusion from the legal profession, but it failed to pass the House of Delegates. In 1920, after the Nineteenth Amendment was ratified and became law (with Virginia holding out on ratifying it until 1952), the Virginia General Assembly followed other southern states such as Georgia and South Carolina in changing its statute governing admission to the Virginia Bar to permit application by “all male and female persons.” Id. at 203.
The first two women to be licensed to practice law in Virginia were Rebecca Pearl Lovenstein of Richmond and Carrie M. Gregory of Lynchburg, who both passed the bar in 1920. Lovenstein also made “herstory” as the first woman to present a case before the Virginia Supreme Court when she and her husband, also an attorney, argued Mazer v. Commonwealth, 142 Va. 649 (1925) (overturning the conviction of a man convicted of violating prohibition laws). The Richmond Times Dispatch reported that Ms. Lovenstein made “able presentation of the facts in the case and members of the court shook her hand.” The paper also reported “Mrs. Lovenstein, besides being a lawyer, is a mother . . . with three sons . . . and directs the household affairs . . . and finds some time for social and club affairs.” Mrs. Lovenstein First Woman to Argue in Supreme Court, Richmond Times Dispatch, Jan. 8, 1925, at 3.
The same year that Lovenstein made the first appearance of a woman in the Virginia Supreme Court, another woman broke barriers by becoming the first black woman to be licensed to practice law in Virginia (or anywhere south of Washington, D.C.). Lavinia Marian Fleming Poe worked in the office of black attorney J. Thomas Newsome in Newport News. She learned by watching and doing that she was as capable as any man or woman of practicing law. Poe moved to Washington, D.C. to study at Howard University Law School and then returned to Newport News to open her own law office in 1925. By 1927, she qualified to appear before the Virginia Supreme Court. Poe determined to change lives not just in her local community with her solo law practice, but throughout the state as a charter member of the Old Dominion Bar Association, and nationally as a member of the integrated National Association of Women Lawyers.
Just as the Nineteenth Amendment transformed the landscape for women to become lawyers, federal and state litigation and legislation in the 1950s and 60s culminating in Title IX of the Education Amendments of 1972 resulted in expanded access for women to law schools and a metamorphosis of the legal profession. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . .” 20 U.S.C. § 1681(a).
In 1950 there were 197 white women and 3 black women listed as lawyers in Virginia, according to the U.S. Census, making up 4.5% of all lawyers in the state. Forty years later, in 1990, there were more than 6000 white women and 356 black women listed as lawyers, making up 25% of all lawyers in the state. Peter Wallenstein, “These New and Strange Beings”: Women in the Legal Profession in Virginia, 1890-1990, 101-2 Va. Mag. of History and Biography, at 195. In 2020, women made up 37% of the profession nationally. https://www.americanbar.org/content/dam/aba/administrative/news/2020/07/potlp2020.pdf
In Virginia, change has come more slowly than in other parts of the country, but the firsts continue to accrue, with such notable figures as Justice Elizabeth Lacy the first woman to serve on the Virginia State Corporation Commission in 1985, and then the first woman appointed to the Virginia Supreme Court in 1988, Angela Roberts named the first black female judge in Virginia in 1990, and Justice Cynthia Kinser as the first woman to serve as the Chief Justice of the Virginia Supreme Court in 2011.
The experience of women in the history of the legal community is more than just the numbers, though. A decade after Justice Cleo Powell was sworn in as the 102nd justice on the Supreme Court of Virginia in 2011, the first black woman ever to hold that position, she reflected, “there is pressure in wanting to do the best job that you can. And pressure in getting it right for the people and wanting to do your job well enough to leave the door open for others to come after you.” Autumn Childress, Soul of RVA: Justice Cleo Powell, the first black woman to serve on the Supreme Court of Virginia, ABC 8News (June 1, 2021), https://www.wric.com/community/soul-of-rva-justice-cleo-powell-the-first-black-woman-to-serve-on-the-supreme-court-of-virginia/
As we look at history through the lens of gender diversity and inclusion, we recognize the lessons of the pioneering women in the law in the spirit of the theme of Women’s History Month to “provide healing and promote hope for the betterment of all.” https://nationalwomenshistoryalliance.org/2022-theme/
.jpg)