Toppling the Barriers to Success for Asian American Female Litigators

BY ADRIENA CLIFTON

Note: A version of this article first appeared in Volume 11 of the Stetson Journal of Advocacy and the Law (2024). 

Law students are taught that appearance matters, especially when engaging in trial work and oral advocacy. Why? Because appearance itself can be hugely persuasive. Not only do law students learn how to craft strong legal arguments, they learn how to stand up straight when making them, to project and enunciate, to dress neutrally in order to convey rationality, to cover visible tattoos, to move confidently about the courtroom, and to use tone and body language strategically. 

Unfortunately, litigators who do not fit the stereotypical idea of what an oral advocate “should” look like must fight harder to establish credibility because, as legal scholar and Columbia Law School Professor Kimberlé Crenshaw writes, “what is understood as objective or neutral is often the embodiment of a white middle-class world view.”¹1 Kimberlé Crenshaw, “Foreword: Toward A Race-Conscious Pedagogy in Legal Education,” 4 S. Cal. Rev. L. & Women’s Stud. 33, 35 (1994).

Physical appearance and implicit bias present a unique challenge to Asian American female litigators because they are members of a group that is often perceived to be more docile or meek than others. Drawing from my own challenges in fighting such stereotypes, I seek via this article to discuss the common—and often invisible—experiences of Asian American female litigators who face prejudice about both their race and gender.²2 This article’s discussion is limited to the barriers Asian women face in the legal field due to external forces like implicit bias and media stereotypes; it does not consider internal factors. This paper also acknowledges that, because American society often mistakes all Asian Americans as belonging to the same group, Asian American women share many experiences despite coming from varied cultural backgrounds. This author further acknowledges the limitations of using the words “female” and “women” to describe the subjects of this paper given that some people do not subscribe to the sex/gender binary. Accordingly, please read “female” and “women” as words inclusive of anyone who identifies with them.

Exclusion of Asian Women

For Asian American women, race and gender cannot be separated, and they often face compounded discrimination as a result of their intersectional identities. These dangers are partly the result of harmful stereotypes about Asian women that persist to this day thanks to xenophobic legislation passed in the 1800s, World War II propaganda, and inaccurate portrayals of Asian women in popular media. They are also the result of the historic, violent, and continued subjugation of women as a social class. 

In the United States, Asian men and women were denied citizenship under the Naturalization Act of 1790.³3 Charles Gordon, “The Racial Barrier to American Citizenship,” 93 Pa. L. Rev. 237, 238 (1945). They were only allowed into the country as immigrants to provide cheap labor for sugar plantations, mines, railroads, factories, canneries, and farms.⁴4 Chinese Immigration and the Chinese Exclusion Acts, Office of the Historian, available at https://history.state.gov/milestones/1866-1898/chinese-immigration. Without the rights that come with citizenship, Asians were ostracized and prohibited from obtaining gainful employment, accessing white public classrooms, and owning property.⁵5 Peggy Li, “Hitting the Ceiling: An Examination of Barriers to Success for Asian American Women,” 29 Berkeley J. Gender L. & Just. 140, 151 (2014). In 1882, the Chinese Exclusion Act suspended immigration of Chinese laborers altogether for 10 years and forbade Chinese immigrants from naturalizing.⁶6 Chinese Exclusion Act, Ch. 126, 22 Stat. 58 (1882).

This pattern of excluding Asians from American society continued with the internment of Japanese Americans during World War II. President Franklin D. Roosevelt authorized the removal of more than 110,000 Japanese Americans from their homes and forced them to live imprisoned in isolated camps.⁷7 Donna K. Nagata, Jacqueline H. J. Kim & Kaidi Wu, “The Japanese American Wartime Incarceration: Examining the Scope of Racial Trauma,” 73 American Psychologist 36, 36 (2019). The United States also engaged in propaganda campaigns against Japanese people at this time in an effort to dehumanize the enemy. The barbaric and subhuman stereotypes that resulted were reinforced during the COVID-19 pandemic, and anti-Asian hate crimes in the U.S. increased 339 percent in 2021.⁸8 Kimmy Yam, “Anti-Asian hate crimes increased 339 percent nationwide last year,” Feb. 14, 2022, NBC.

In law, women have been historically prohibited from participating due to their perpetual characterization as “the weaker sex.” In 1873, the U.S. Supreme Court denied a woman a license to practice law. The Court’s opinion states that women are unfit for many occupations in civil society and that, “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”⁹9 Bradwell v. State, 83 U.S. 130, 141 (1872). With the same sexist mindset, the American Bar Association refused to admit women until 1935.¹⁰10 Maria Laus, “A Short History of Women in the Law,” May 21, 2023, Law Crossing. Harvard Law School refused to admit women until 1950, and other law schools kept the number of female students artificially low by admitting a far smaller percentage of qualified women than men. Women made up only 4 percent of the legal profession in 1970 and only 21 percent in 1991.¹¹11 History of the WLA, Harv. L. School Women’s Ass’n. Today, they continue to lag behind their male counterparts, making up just 38.3 percent of U.S. attorneys while males make up 61.5 percent.¹²12 ABA, Profile of the Legal Profession at 25 (2022).

For Asian American women, race and gender cannot be separated, and they often face compounded discrimination as a result of their intersectional identities. 

How Stereotypes Affect the Success of Female Asian Litigators

Implicit Bias

Bias results from the human need to efficiently classify individuals into categories as people move quickly through their environment. Automatic classifications require few mental resources and little conscious thought, but snap judgments quickly become assumptions people use when faced with new encounters. When these assumptions are used to categorize people by age, gender, race, or other criteria, they are called stereotypes. Implicit bias involves an automatic positive or negative preference for a group, based on one’s knowledge of stereotypes.¹³13 U.S. Dept. of Justice, Understanding Bias: A Resource Guide at 1-2.

Implicit bias can be just as problematic as explicit bias when producing discriminatory actions because the individual influenced by implicit bias may be unaware that stereotypes, rather than the facts of a situation, are driving their judgments.¹⁴14 Patricia G. Devine, “Implicit Prejudice and Stereotyping: How Automatic Are They? Introduction to the Special Section,” 81 J. Personality & Social Psychology 757, 759 (2001). This makes implicit bias more difficult to address because people can hold certain harmful beliefs based on inaccurate stereotypes but not feel responsible for changing those beliefs. In the context of oral advocacy, when neutrality is expected but judges and juries are essentially tasked with gauging credibility based on physical appearance, stereotypes are especially dangerous.

Asian American women are caught between two restrictive stereotypes: the sexualized ultra-feminine stereotype pushed by popular media and the model minority myth that has been weaponized against politically active African Americans.¹⁵15 Supra note 5. Hollywood has pushed one prevailing sexual stereotype—the Lotus Flower trope—which depicts Asian women as subservient, submissive, docile, and helpless.¹⁶16 Isabella Oishi, “Where Sexism and Racism Meet: The Danger of Existing as an Asian American Woman,” 23 Geo. J. Gender & L. (2022). Simultaneously, the model minority myth posits that Asian Americans have overcome discrimination entirely because they are obedient, overly competent, hardworking, educated, intelligent, and ambitious, yet lacking warmth and social skills.¹⁷17 Supra note 5. Accordingly, Asians, and especially Asian women, are not historically seen as leaders but perfect followers. These stereotypes portray Asian women as weak and antisocial and, as a result Asian women must often work much harder to be taken seriously in their careers. 

According to a survey conducted by the American Bar Foundation and the National Asian Pacific American Bar Association, Asian Americans appear to face significant obstacles in selection processes:

that involve not only objective measures of ability, but also access to mentorship and subjective criteria such as likability, gravitas, leadership potential, and other opaque or amorphous factors that may inform whom judges, faculty members, or law firm partners regard as their protégés … We conclude that Asian Americans would benefit greatly from more institutional supports that counteract stereotypes and facilitate relationship building, development of soft skills, and leadership opportunities.¹⁸18 Tyler Dang, et al., A Portrait of Asian Americans in the Law, American Bar Foundation & National Asian Pacific American Bar Association 77 (2022).

These factors also contribute to the notoriously difficult path for Asian American women to advance in the legal profession. The American Bar Association reported in 2020 that 2 percent of all United States lawyers are Asian.¹⁹19 ABA, Lawyers by Race & Ethnicity at 1. According to the National Association for Law Placement, Asian women made up just 1.17 percent of partners at law firms in 2016.²⁰20 Women and Minorities at Law Firms by Race and Ethnicity: New Findings for 2016, NALP, February 2017. In Washington specifically, Asian Americans make up an estimated 3.6 percent of all WSBA members.²¹21 WSBA member licensing counts, as of Dec. 2, 2024: www.wsba.org/docs/default-source/licensing/membership-info-data/countdemo_20190801.pdf. 

Oral Advocacy and Physical Appearance

Former Assistant U.S. Attorney Jonathan Shapiro writes that “[t]he practice of law is the business of persuasion.”²²22 Jonathan Shapiro, Lawyers, Liars, and the Art of Storytelling (2016). Aristotle posits that the most potent element of persuasion is ethos, which depends on the personal character of the speaker.²³23 Aristotle, Rhetoric, Dover Pub. (2004). Ethos concerns the persuasive effect that results from what the audience thinks of the speaker and is usually based on what the listener has previously seen or heard about the speaker.²⁴24 Ronald J. Waicukauski, JoAnne Epps, & Paul Mark Sandler, “Ethos and the Art of Argument,” 26 J. of Personality and Social Psychology 31, 31 (1999).

When Americans see trial lawyers on television shows, the characters are often credible because they are feisty, demanding, outspoken, and showy. Unfortunately, these ideas about what make an ideal oral advocate are at odds with the stereotypes about Asian American women. In one study of Asian American women who had experienced discrimination, 34 percent reported that others had assumed they were submissive or passive.²⁵25 Christine Ro, “The Docility Myth Flattening Asian Women’s Careers,” Aug. 16, 2020, BBC. This is a problem when clients believe a fiery “bulldog” attorney will be the most persuasive on their behalf, and it is an issue if a judge or jury assumes that an Asian American female litigator is weaker or submissive. How, then, can the legal community challenge the common belief that Asian American women are too soft-spoken and demure to stand their ground in the courtroom?

Alleviating Discrimination Against Asian American Female Litigators

To combat racism and sexism in the legal field, particularly in the context of oral advocacy, the legal community must become aware of, and constantly challenge, implicit bias. This must take place on individual and systemic levels.

Mitigating Implicit Bias

Renee Nicole Allen and DeShun Harris, both lawyers and academics, posit that
“[l]aw schools … are in an opportune position to take the lead in confronting social justice.” They suggest implementing law school training programs that treat implicit bias like a habit.²⁶26 Renee Nicole Allen & Deshun Harris, “#SocialJustice: Combatting Implicit Bias in an Age of Millennials, Colorblindness & Microaggressions,” 18 U. Md. L.J. Race, Religion, Gender & Class 1, 1 (2018).

Researcher Patricia Devine and colleagues tested a multifaceted prejudice habit-breaking intervention in a three-month study, comparing a group of people who completed the intervention to a control group who did not. Throughout the study, participants completed a Black–White Implicit Association Test (IAT) at three time points: just prior to the intervention manipulation (baseline) and four and eight weeks after the manipulation. 

During the intervention, participants viewed a 45-minute narrated and interactive slideshow separated into education and training sections. The education section introduced the idea of prejudice as a habit and described how implicit biases develop and are automatically activated without intention. Participants were then taught about the prevalence of implicit race biases and how they can lead people to unwittingly perpetuate discrimination that results in a wide range of negative outcomes in domains such as health, employment, and everyday interpersonal interaction. 

Overall, the results of the study provide compelling evidence of the effectiveness of multifaceted intervention in reducing implicit bias. Reductions in implicit bias that emerged by week four following the intervention persisted to week eight. The study also revealed an increase in participants’ self-reported concern about discrimination and prejudice-relevant discrepancies.²⁷27 Patricia G. Devine et al., “Long-Term Reduction in Implicit Race Bias: A Prejudice Habit-Breaking Intervention,” 48 J. Experimental Soc. Psychology 1267, 1268-1276 (2012).

Increasing Diversity

Diversity—of race, gender, age, background, and more—is crucial to the legal field because it promotes teamwork, raises different perspectives, provides opportunities to learn from those who come from other environments, contributes to deeper understanding, and makes the legal field more accessible to future attorneys. 

In April 2019, the Washington Supreme Court became the first court in the nation to adopt a court rule aimed at eliminating both implicit and intentional racial bias in jury selection. Under General Rule 37, objections to peremptory jury selection challenges will no longer be restricted to instances of purposeful discrimination but can also be used if an “objective observer” could view race or ethnicity as a factor in use of the peremptory strike. The rule defines an objective observer as someone “aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington state.”²⁸28 ACLU, “Washington Supreme Court is First in Nation to Adopt Rule to Reduce Implicit Racial Bias in Jury Selection,” April 9, 2018, at 37.

As the Washington Supreme Court has recognized, diversity of people, cultures, and appearances gives birth to acceptance, not mere tolerance. In the courtroom, where justice is the ultimate goal, deeply ingrained acceptance of many different kinds of people and advocates will lead to a more equitable justice system.

Conclusion

I have lived the statistics this article has discussed. I have seen the effects of implicit bias firsthand. Before court, I have been asked if I am the translator. I have a mentor who is the first Asian American female partner in her law firm’s 133-year history. As a Chinese adoptee raised in primarily white communities, I have felt the disapproval that comes with not being what people expect me to be. I have fought against stereotypes to be my strong-willed, outspoken, daring, bulldog self.

I have found it helpful to seek out mentors who look like me because there is healing in having one’s struggles and victories validated, in hearing that you are not alone. The bulk of the advice I have received so far is to “be myself” and hope for the best, and while I have found this advice to be on point, I still believe it is the duty of the legal community as a whole to acknowledge and confront discrimination. We must all strive to become aware of our individual thoughts and behaviors and be brave enough to challenge them when we learn they are harmful. Only then can we achieve truer justice. 

NOTES

1. Kimberlé Crenshaw, “Foreword: Toward A Race-Conscious Pedagogy in Legal Education,” 4 S. Cal. Rev. L. & Women’s Stud. 33, 35 (1994).

2. This article’s discussion is limited to the barriers Asian women face in the legal field due to external forces like implicit bias and media stereotypes; it does not consider internal factors. This paper also acknowledges that, because American society often mistakes all Asian Americans as belonging to the same group, Asian American women share many experiences despite coming from varied cultural backgrounds. This author further acknowledges the limitations of using the words “female” and “women” to describe the subjects of this paper given that some people do not subscribe to the sex/gender binary. Accordingly, please read “female” and “women” as words inclusive of anyone who identifies with them.

3. Charles Gordon, “The Racial Barrier to American Citizenship,” 93 Pa. L. Rev. 237, 238 (1945).

4. Chinese Immigration and the Chinese Exclusion Acts, Office of the Historian, available at https://history.state.gov/milestones/1866-1898/chinese-immigration. 

5. Peggy Li, “Hitting the Ceiling: An Examination of Barriers to Success for Asian American Women,” 29 Berkeley J. Gender L. & Just. 140, 151 (2014).

6. Chinese Exclusion Act, Ch. 126, 22 Stat. 58 (1882).

7. Donna K. Nagata, Jacqueline H. J. Kim & Kaidi Wu, “The Japanese American Wartime Incarceration: Examining the Scope of Racial Trauma,” 73 American Psychologist 36, 36 (2019).

8. Kimmy Yam, “Anti-Asian hate crimes increased 339 percent nationwide last year,” Feb. 14, 2022, NBC.

9. Bradwell v. State, 83 U.S. 130, 141 (1872).

10. Maria Laus, “A Short History of Women in the Law,” May 21, 2023, Law Crossing.

11. History of the WLA, Harv. L. School Women’s Ass’n.

12. ABA, Profile of the Legal Profession at 25 (2022).

13. U.S. Dept. of Justice, Understanding Bias: A Resource Guide at 1-2.

14. Patricia G. Devine, “Implicit Prejudice and Stereotyping: How Automatic Are They? Introduction to the Special Section,” 81 J. Personality & Social Psychology 757, 759 (2001).

15. Supra note 5.

16. Isabella Oishi, “Where Sexism and Racism Meet: The Danger of Existing as an Asian American Woman,” 23 Geo. J. Gender & L. (2022).

17. Supra note 5.

18. Tyler Dang, et al., A Portrait of Asian Americans in the Law, American Bar Foundation & National Asian Pacific American Bar Association 77 (2022).

19. ABA, Lawyers by Race & Ethnicity at 1.

20. Women and Minorities at Law Firms by Race and Ethnicity: New Findings for 2016, NALP, February 2017.

21. WSBA member licensing counts, as of Dec. 2, 2024: www.wsba.org/docs/default-source/licensing/membership-info-data/countdemo_20190801.pdf. 

22. Jonathan Shapiro, Lawyers, Liars, and the Art of Storytelling (2016).

23. Aristotle, Rhetoric, Dover Pub. (2004).

24. Ronald J. Waicukauski, JoAnne Epps, & Paul Mark Sandler, “Ethos and the Art of Argument,” 26 J. of Personality and Social Psychology 31, 31 (1999).

25. Christine Ro, “The Docility Myth Flattening Asian Women’s Careers,” Aug. 16, 2020, BBC.

26. Renee Nicole Allen & Deshun Harris, “#SocialJustice: Combatting Implicit Bias in an Age of Millennials, Colorblindness & Microaggressions,” 18 U. Md. L.J. Race, Religion, Gender & Class 1, 1 (2018).

27. Patricia G. Devine et al., “Long-Term Reduction in Implicit Race Bias: A Prejudice Habit-Breaking Intervention,” 48 J. Experimental Soc. Psychology 1267, 1268-1276 (2012).

28. ACLU, “Washington Supreme Court is First in Nation to Adopt Rule to Reduce Implicit Racial Bias in Jury Selection,” April 9, 2018, at 37.