In 1872, U.S. Supreme Court Justice Joseph P. Bradley faced a conundrum. A woman in the state of Illinois wanted to be an attorney. But how, Justice Bradley wondered, could a female balance the demands of the profession when “[t]he paramount destiny and mission of [women] are to fulfil the noble and benign offices of wife and mother?” Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring), abrogation recognized by 576 F.3d 979 (2012). As technology advances, the balance of domestic responsibilities and professional obligations that so vexed Justice Bradley becomes more manageable. The new proposed revisions to the Texas Rules of Civil Procedure embrace the concept of virtual attendance and give all attorneys, litigants, and judges the opportunity to better strike that balance. This change in the Texas Rules of Civil Procedure stands to have positive repercussions in particular for women, who have been overwhelmingly bearing the weight of work-family balance for decades.
Proposed Texas Rules of Civil Procedure 21d and 500.10 make room for the modern reality that in-person attendance is not always practical. To be sure, the rules make clear that attendance by physical presence is the default method of appearance (as stated in proposed Rule 21d(b)(1) but seemingly omitted from proposed Rule 500.10(a) for justice courts). However, with appropriate notice, “a court may allow or require a participant to appear at a court proceeding by videoconference, teleconference, or other available electronic means.” Proposed Tex. R. Civ. P. 21d(b)(1) (emphasis added). A “participant” is any party, attorney, witness, court reporter, juror, or judge who participates in a court proceeding. Proposed Tex. R. Civ. P. 21d(a)(2).
The proposed embrace of post-COVID realities does not stop there. “A party may object to any method of appearance, stating good cause for the objection.” Proposed Tex. R. Civ. P. 21d(c) (emphasis added). The proposed rule then provides a list of factors for a court to consider in determining good cause for an objection to any method of appearance: case type; court proceeding type; the number of parties and witnesses; the complexity of the legal and factual issues; the type of evidence to be submitted, if any; technological restrictions such as lack of access to or proficiency in necessary technology; travel restrictions such as lack of transportation, distance, and inability to take off work; whether a method of appearance is best suited to provide necessary language access services for a person with limited English proficiency or accommodations for a person with a disability; and any previous abuse of a method of appearance. Proposed Tex. R. Civ. P. 21d(d)(1)–(9). The proposed rules normalize the growing societal sentiment that, sometimes, connecting virtually creates an opportunity for greater productivity than an in-person meeting. For women, that’s significant.
Women are more likely to seek remote work than their male counterparts. According to a survey by FlexJobs, 68 percent of women, compared with 57 percent of men, prefer remote-only work. Rachel Pelta, “Survey: Men & Women Experience Remote Work Differently,” FlexJobs. The immediate significance of the proposed Texas Rules is that they meet a demand that women make at a higher proportion than men. The indirect effect of the changes is just as important. The majority of caregivers are women, according to the U.S. Department of Health and Human Services’ Office on Women’s Health. See Caregiver stress (Dec. 15, 2015) (citing National Alliance for Caregiving, in collaboration with AARP, Caregiving in the U.S. (2015)). Though the anthropological reasons for this widely acknowledged and statistically supported dynamic are not the subject of this article, the takeaway is this: A judicial embrace of remote hearings, like an embrace of remote work, will give women an opportunity to close the gap between familial or domestic obligations and the ability to execute at a competitive level in the workplace. See id.; see also Katie Johnston, “‘I’m so much stronger now’: How remote work is helping women in the workplace,” Bos. Globe, June 9, 2022. If the proposed rules become law, all caregivers who regularly attend court proceedings in Texas will have an easier means of threading the needle between work and home life because of the availability of remote attendance. See Proposed Tex. R. Civ. P. 21d. As the proposed Texas Rules of Civil Procedure destigmatize remote participation, they also normalize and make manageable the juggle of professional and personal responsibilities. See Andrea Loubier, “How Working Remotely Is Helping Women Close The Gender Gap In Tech,” Forbes, Mar. 13, 2017; see also Johnston, “‘I’m so much stronger now’: How remote work is helping women in the workplace”; Pew Research Ctr., “10 Findings about Women in the Workplace,” Dec. 11, 2013; Pelta, “Survey: Men & Women Experience Remote Work Differently.” Women will likely seek to take advantage of remote attendance at a higher rate than men, which means these rules stand to affect women in a higher proportion. Loubier, “How Working Remotely Is Helping Women Close The Gender Gap In Tech.”
But the proposed Texas Rules of Civil Procedure potentially do more than bridge the gap between domestic and professional responsibilities. Most significantly, the remote attendance framework in the proposed rules could eviscerate dated arguments that once justified keeping women from participating in court proceedings altogether. The U.S. Supreme Court famously memorialized its former hostility toward female participation in court proceedings in multiple opinions. In Bradwell v. Illinois, Justice Bradley noted in a concurring opinion that nature and the civil law have “always recognized a wide difference in the respective spheres and destinies of man and woman.” Bradwell, 83 U.S. 130 at 141 (Bradley, J., concurring). He used that argument to justify his conclusion that a woman had no “fundamental rights or privileges to be admitted into every office and position, including those which require. . . demanding special responsibilities.” Id. at 142. That meant, in his opinion, that the right to practice law was not guaranteed by the Fourteenth Amendment. Id.
In Strauder v. West Virginia, the Court further perpetuated the idea that a woman could be excluded from the courtroom when it stated that a state could “confine the selection [of its jurors] to males,” because the Fourteenth Amendment was never designed to prohibit a sex-based form of discrimination. Strauder v. West Virginia, 100 U.S. 303, 310 (1879), abrogated by 419 U.S. 522 (1975). Almost a century later, in Hoyt v. Florida, the Court referenced the societal belief that “woman is still regarded as the center of home and family life,” when it held that, under the Fourteenth Amendment, a state could absolutely exempt women from jury service, unless a woman expressly waived the privilege. Hoyt v. Florida, 368 U.S. 57, 61–62 (1961), abrogated by 419 U.S. 522 (1975). It was not until 1975 in Taylor v. Louisiana that the Court recognized the impropriety of categorically excluding women from the jury panels from which petit juries are drawn. See Taylor v. Louisiana, 419 U.S. 522, 533 (1975).
The outdated sentiments captured in the above opinions share a common theme: They theorize that a woman’s work in the home is too demanding of her attention to justify interruption. See, e.g., Hoyt, 368 U.S. 57 at 62 (noting that a state had the power to craft a statute effectively exempting women from jury service when acting in pursuit of the general welfare), abrogated by 419 U.S. 522 (1975). A by-product of the proposed Texas Rules of Civil Procedure is that, under their structure, it is more than unconstitutional to cite a woman’s domestic responsibilities as a proxy for why she may be unfit for jury service—it is also illusory. See Taylor v. Louisiana, 419 U.S. 522, 533 (1975) (holding that systematic exclusion of women from the jury panels from which petit juries are drawn violates the Sixth and Fourteenth Amendments); see also Duren v. Missouri, 429 U.S. 357, 360 (1979) (determining that underrepresentation of women in the venire violates both the Sixth and Fourteenth Amendments). By adapting to post-COVID realities, the Texas Supreme Court also opened a gilded and dusty cage of domesticity that formerly kept generations of women from meaningful participation in civic functions. As we prepare to take advantage of the conveniences and opportunities that remote attendance affords, it is worth remembering that the stark divide between “home” and “outside the home” once kept an entire class of people from entry into the courtroom at all.
Though the proposed rules have broken one barrier to court access, the issue to watch for in their implementation is whether they substitute one cage for another. The proposed rules’ embedded balance of factors for determining good cause in response to an objection to the method of appearance already provides protection. The list of factors ensures that remote attendance is extended equitably, on a case-by-case basis, and for the fairness and convenience of all participants. Proposed Tex. R. Civ. P. 21d(d)(1)–(9). What the implementation of the proposed rules cannot do is substitute the 1870s preference for male participation in the court function, for a 2022 preference for those with immediate access to technology. So long as all participants are meaningfully provided access to the courts, some remotely and some in person, the proposed Texas Rules of Civil Procedure break a barrier and usher in a new age of courtroom participation, one that women in particular have historical and modern cause to welcome.
Catherine E. Helm is an associate with Bell Nunnally & Martin LLP in Dallas, Texas.
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