Are Women in Litigation Disproportionately Affected by Mental Health Concerns? Unpacking the Intersection of Women, Litigation, and Mental Health

The high-pressure, demanding environment of litigation is known to take a toll on mental health. But are women in this field disproportionately affected compared to their male colleagues? The answer, as with most complex issues, is not a simple “yes” or “no”. The reality is far more nuanced, calling for a deeper exploration of the complexities at play.

On 10-2-2024, the Delhi High Court Women Lawyer’s Forum organised a compelling discussion on mental health and happiness for legal professionals within the esteemed confines of the bar room at the High Court of Delhi. At the discourse, Justice Anup Jairam Bhambani and Justice Poonam A. Bamba (Retd.), alongside Dr Achal Bhagat¹, offered invaluable strategies for managing stress and enhancing well-being. Among the myriad inquiries raised during the discourse, one pervasive question lingered on my mind without a definitive answer: Are women in the litigation (legal) field disproportionately affected by mental health concerns such as depression and generalised anxiety disorders, among several other concerns due to the multifaceted challenges that women encounter in both their professional and personal lives, such as:

(i) Work-life balance/imbalance: Women still tend to shoulder an undue burden of care, which leads to more household and childcare responsibilities, leading to high-stress situations.

(ii) Structural difficulties: Lack of maternity benefits and rigid work structures force many female lawyers to choose between motherhood and their careers. This often leads them to leave the profession due to financial pressure and a lack of support.

(iii)Gender microaggressions in the legal profession: Women in litigation may face microaggressions, sexist assumptions, and outright discrimination, creating a hostile work environment.

(iv) Internalised expectations: Societal pressures to be “perfect” and the “glass ceiling” effect can fuel anxiety in women.

(v) Financial stress: Women lawyers often earn less than their male counterparts, adding financial pressure to the mix.

Let us briefly examine the above.

Firstly, women often bear an undue burden of caregiving responsibilities due to the stereotypical nature of their roles in families and society. Regardless of their professional achievements, women are expected to fulfil traditional roles as mothers, wives, daughters and daughters-in-law, with caregiving responsibilities that are virtually endless.

In this regard, Dr Achal Bhagat, MBBS, MD (Psychiatry) and MRCPsych at the panel discussion, emphasised the entrenched patriarchal nature of our society. He highlighted how women are often confined to stereotypical roles dictated by patriarchy, and that women are expected to perform well at both roles, including that of a homemaker and a professional, stressing the importance of overcoming these constraints to establish fairer environments for women. Justice Poonam A. Bamba also shared her insights on employing spiritual and healing practices for self-care. Additionally, Justice Bamba articulated the imperative for women to assert control over their time and energy by establishing clear boundaries. This perspective highlights the importance of self-care and prioritisation in navigating societal expectations and responsibilities.

Secondly, women grapple with biological factors that can impact their mental health and physical well-being, including hormonal imbalances, conditions like PCOD, postpartum depression, and various reproductive health issues. Moreover, institutional inflexibility, especially concerning employment and pay parity, and the lack of adequate maternity leave policies, exacerbates the strain on female lawyers.

Consequently, the amalgamation of professional demands and biological variables can engender a precarious predicament for women in the legal profession, potentially precipitating chronic stress, anxiety, and various other mental health adversities.

Thirdly, and of paramount significance, women encounter heightened scrutiny and pressure within professional environments, where they are consistently compelled to validate their capabilities and competence in comparison to their male counterparts, especially within the legal sphere. Instances of oversight or mistakes by female lawyers or litigators frequently undergo intense scrutiny, resulting in heightened levels of stress and anxiety, a reality corroborated by numerous accounts from women practitioners and Judges.

Unique challenges faced by women in litigation in India

Historically, women have faced numerous barriers to entering and excelling in legal professions, including but not limited to gender bias in courtrooms, discriminatory practices, and challenges related to work-life balance. Despite significant strides towards gender equality, women remain underrepresented not only in the judiciary but also in senior positions within law firms.

Addressing an event commemorating the 100 Years of Dr Bhimrao Ramji Ambedkar’s Law Practice, Chief Justice of India, Dr Justice D.Y. Chandrachud, voiced concerns regarding the inadequate representation of women in the higher judiciary. Justice Chandrachud noted that while a significant percentage of fresh recruits in several States, particularly at the district level, were women——often ranging from 70% to 80% —— they continued to be underrepresented in the judiciary.

This underrepresentation and constant struggle to prove one’s worth can contribute to feelings of isolation, imposter syndrome, and heightened pressure to prove oneself, all of which can take a toll on mental well-being. Additionally, societal expectations regarding gender roles may further complicate matters for women, who may feel pressure to conform to traditional standards of femininity while navigating assertive and competitive professional environments.

Gender-based microaggression in courts

Furthermore, women in litigation often encounter a myriad of challenges distinct from those of their male counterparts. For instance, they face gender-based microaggressions, such as being interrupted or talked over in court hearings, shouted down, dismissed as overly emotional, or even subjected to verbal and sexual harassment and bullying. These experiences can lead to feelings of frustration, anxiety, and self-doubt, aggravating existing mental health concerns or precipitating new ones, particularly for women lawyers.

Last year, Senior Advocate Indira Jaising addressed concerns regarding the lack of gender sensitivity among members of the Bar in a letter² to Chief Justice of India Justice D.Y. Chandrachud. Ms Jaising highlighted the treatment of women lawyers in courtrooms by their male counterparts. Drawing from her own experiences, she pointed out the spectrum of stereotyping women lawyers face, from being labelled as “empowered” to being unjustly deemed “aggressive” for asserting themselves in court. Ms Jaising cited instances where she was referred to as “delightful” and cautioned not to raise her voice. While commending the Supreme Court for releasing the “Handbook on Combating Gender Stereotypes”, Ms Jaising urged the Court to issue a handbook providing guidelines to male colleagues on interacting with women in the legal profession to tackle gender stereotyping in the Bar and in court pleadings and arguments.

Last year, at an event commemorating Lady Lawyers Day³, Justice Prathiba M. Singh addressed the “perception challenges” encountered by women, noting that women are more easily shouted down in negotiations. She highlighted the three types of treatment women often receive — encouraging, patronising, and chauvinistic — and emphasised that women navigate these challenges with a smile. She further highlighted the significant gender disparity prevailing in the legal profession, noting that women make up only 15% of practising lawyers in the country. Justice Singh also emphasised the necessity for women in law to exert extra effort, giving not just 100 but 120 per cent to prove themselves as they strive to attain higher positions.

Senior Advocate Anitha Shenoy, a first generation lawyer who has represented five Governments at the Supreme Court, asserts that while women lawyers constitute an essential component of the legal profession, they continue to lack equal status. She further states in an interview⁴ that, “Women lawyers still have to battle condescension, patronising attitude, and patriarchal mindsets from male lawyers and, in some cases, the Judges.”

It is evident that the systemic barriers and biases that women encounter in their professional journey can foster a hostile work environment, contributing to feelings of isolation and disillusionment. Such circumstances may lead to depression and other mental health disorders if left unaddressed. Moreover, the need to overcompensate to gain recognition and advancement, and consistently exceed expectations to prove themselves within the legal field can contribute to feelings of inadequacy and may even erode their sense of self-worth and self-esteem over time, potentially leading to increased stress, anxiety, and a quicker onset of burnout.

Efforts to address these disparities and promote a more inclusive and supportive environment are crucial to safeguarding the mental health and overall well-being of women in law.

The client’s bias towards “aggressive” male lawyers

In my personal observations, a curious bias persists when it comes to lawyers: aggression gets mistaken for competence and effectiveness in winning contentious cases, suggesting that the courtroom is no place for empathy. Clients yearn for courtroom gladiators, believing raised voices and heated arguments hold the key to winning judgments. The media often perpetuates this bias by portraying male lawyers as tough and aggressive, further influencing clients’ expectations towards favouring assertive male attorneys in legal proceedings.

This pervasive bias towards “aggressive” male lawyers casts a long shadow over the mental well-being of both women and men in the legal field. Women face a particularly brutal double bind: project aggression and risk reinforcing harmful stereotypes, or display empathy and potentially be seen as less competent.

This constant negotiation can potentially chip away at one’s confidence and the desire to show up authentically at one’s workplace.

In recent conversations, female lawyers have shed light on a disturbing trend: being pressured to escalate the volume and intensity of their arguments solely to counteract the booming voices of their male counterparts. Once, a young lawyer at the Delhi High Court shared that, “we are often browbeaten verbally by male lawyers. Often, when we start our arguments, we start with a mellow tone, but soon the opposing counsel, who is a male, starts to argue loudly, shouting us down, and then we are coerced to raise our voices in the courtroom”.

These unequal dynamics force women to choose between their natural communication style and being heard effectively, adding unnecessary pressure, and potentially compromising their well-being, further exacerbating mental health concerns. Furthermore, this situation highlights a double standard. Women are expected to navigate the legal system with poise and eloquence, while men, even when exhibiting loud and borderline intimidating behaviour, are frequently normalised and sometimes even regarded as being more competent, authoritative, showcasing confidence and leadership qualities. This underscores societal expectations that place undue pressure on women to conform to traditional notions of femininity, while simultaneously allowing men greater leeway in their demeanour and conduct within professional settings.

As rightly pointed out by Dr Bhagat, it is the adversarial nature of the legal profession exacerbates this bias creating a challenging environment for women navigating the legal system.

The emotional toll of the legal profession on Judges and lawyers and destigmatising seeking help for mental health concerns

Similarly, in cases particularly involving child custody and matrimonial disputes, the atmosphere within the District Judiciary is even more contentious and combative.

During the panel discussion, Justice Bamba highlighted the repercussions of handling cases involving sexual assault and crime against women. She recounted the distressing experience of a female court clerk who, also a mother to a five-year-old, developed panic attacks and severe anxiety being exposed to one such horrific case being dealt by her Bench.

It is crucial to note that our legal system offers no support to such individuals, revealing a glaring gap in addressing the mental health challenges faced by legal professionals. Imagine this clerk, forced to suppress her anxiety and report to work daily. The long-term consequences are concerning. She might become desensitised, a coping mechanism that detaches her emotionally, or worse, she could continue to experience trauma and actively avoid similar cases. A simple roster change provides temporary relief, but it does not address the underlying trauma or her constant worry for her child’s safety or her own safety. Constant exposure to these cases can create a sense of the prevalence of violence against women and children. Women, particularly, can find themselves grappling with emotional dissonance.

The legal system, while designed to deliver justice, often overlooks the toll it takes on those who uphold it

Pipania’s article⁵ correctly observes that, criminal and human rights lawyers constantly confront horrific crimes, leaving lasting personal impacts and potentially leading to burnout, depression, and post-traumatic stress disorder (PTSD). However, mental health struggles are often ignored in the legal profession due to stigma, with lawyers fearing judgment and reputational damage for seeking help. She further notes that several countries have initiated efforts to offer mental health support to the legal profession. For instance, the American Bar Association’s “Commission on Lawyer Assistance Programs (CoLAP)” ensures that every Judge, lawyer, and law student has access to assistance and support for mental health concerns.

In an interview with SCC OnLine Times, Justice Rajiv Shakdher⁶ emphasises the prevalence of mental health issues in the legal profession. He highlights the lack of adequate support systems, stressing the need for trained counsellors, psychiatrists, and psychologists readily available to provide assistance. Justice Shakdher underscores the importance of institutions offering accessible counselling services to address the challenges faced by individuals in the legal field.

Judges and lawyers navigate through a constant stream of human conflict, exposing them to the harsh realities of society — violence, abuse, broken families. This unrelenting negativity can take its toll compounded by other demands of this profession as expounded in the preceding paragraphs. It is significant to state that Judges and lawyers regardless of the gender need support structures — access to mental health resources, peer support groups, and training in emotional resilience.

We urgently need to restructure our systems to make space for a nuanced system that acknowledges the emotional complexity of the work fosters not just stronger individuals, but a more empathetic and effective legal system or else we will continue to see a higher attrition rate particularly with respect to women in the legal profession because of the aforesaid challenges.

A case in points — Are more women leaving the legal profession?

A study⁷ conducted in the US, released on 7-9-2023, unveils alarming statistics regarding the mental health of lawyers. According to the findings, 71.1% of surveyed lawyers experience anxiety, while 38.2% report symptoms of depression. Furthermore, the prevalence of lawyers facing other mental health issues has more than doubled, rising from 14.6% last year to 31.2% this year. Shockingly, nearly 15% of respondents knew someone within the legal profession who died by suicide in the past two years. Particularly concerning is the impact on women lawyers, with those struggling to balance work and family responsibilities being 4.6 times more likely to contemplate leaving the profession due to mental health issues, stress, or burnout.

According to a Reuters survey⁸ conducted in 2022, 60 per cent of women lawyers in India are known to leave the profession between the ages of 35 and 55, which represents the prime years of their careers. In general, women perceive a lack of support within the legal profession, which largely stems from the absence of institutional support for women, resulting in an inadequate work-life balance.

Women find themselves struggling to have a work-life balance as they have to juggle household and caregiving duties, grapple with biological challenges, and perform exceptionally at work, all while navigating a work environment that is often unwelcoming to women. As a result, it is natural for women to burn-out faster in the profession as substantiated by the research (supra).

In an article on LinkedIn, Amy Conway-Hatcher⁹, an Advocate from Washington, eloquently asserts that “we have set extraordinarily high standards and expectations for women without sufficiently resetting an imbalanced and unrelenting system. We met our end of the bargain and proved we belong, but the other side of the equation lags behind. Against this backdrop, some women leave law firms (and sometimes the profession) because in spite of much fanfare on diversity, equity, and inclusion … women grow weary of working harder. They feel undervalued. They burn out. They see better opportunities. They leave.” This thought resonates deeply with the Indian landscape as well.

Against this backdrop, it is imperative to note the legal sphere in India remains predominantly male-dominated, making it challenging for women lawyers to excel. Moreover, the gender pay disparity within the legal profession is alarmingly significant, resulting in even senior women advocates receiving inadequate compensation compared to their male counterparts.

The way forward

Equal opportunities for speaking

It is no secret that women are underrepresented in oral arguments. Ensuring equal opportunities for women litigators to speak and present their cases in court without being overshadowed or interrupted by their male counterparts can help showcase their skills and expertise.

In a recent press release from Judiciary, UK¹⁰, it was highlighted that women are underrepresented as leading advocates, especially in major civil and business and property courts litigation and to address this disparity, it is recommended to provide better opportunities for junior counsel, particularly female junior counsel, to advance oral arguments in courts and tribunals. The Press Release further notes that while this may not always be feasible and depends on various factors, Judges are expected to consider involving junior counsel, especially when they have been extensively involved in drafting written arguments.

This model can be adopted in India as well. By implementing these steps, India’s legal system can create a platform for female junior counsel to gain courtroom experience and pave the way for a more balanced representation in leading roles.

Reframing “excellence and success” for women litigators

The legal field traditionally values courtroom arguments above all else. However, this can disadvantage talented women litigators whose strengths lie in other areas, such as client handling, drafting, briefing, and case preparation. It is also worth mentioning that at times when a junior litigator’s chance to argue her cases arises, she often finds herself nearing a stage in life where important life decisions such as marriage or caregiving responsibilities take precedence as corroborated by the Reuters research (supra) and professional priorities take a backseat.

In fact, there are also young women lawyers and counsels that never directly face the Judges but play a crucial role in case preparation, which includes, but is not limited to, conducting thorough client interviews to gain a complete understanding of the case, drafting case documents, researching case laws, drafting compelling pleadings, filing legal matters and preparing additional applications and affidavits, creating detailed briefing notes for the arguing counsel or the Senior Advocate, managing client meetings, court dates and providing ongoing support and preparing the entire case to assisting their arguing counsel or the Senior Advocate on the day of the hearing.

Despite these significant contributions, when a case is won, the accolades often go solely to the arguing counsel. While the judicial orders do record appearances, the substantial work that goes into drafting and case preparation is often overlooked. Furthermore, judicial order usually records the arguments of the arguing counsel but as a practice the contributions of those advocates who have tirelessly prepared the matter including the women lawyers behind the scenes who has perhaps burned the midnight oil and multitasked extensively for the success of the matter is overlooked.

“The Bar is higher for us. Why is winning the measure of our success? Why can we not get our due for merely qualifying the bar, like men?” questions Priyam Lizmary Cherian, an advocate involved in Navtej Singh Johar v. Union of India¹¹ that decriminalised homosexuality. A comprehensive analysis conducted by The Wire.in, titled “Skewed Corridors of Justice: Women Continue to Face Sexism in Courts”, sheds light on the challenges women encounter within the legal system. In the same study, Susan Thomas, a lawyer associated with Project 39A at National Law University, Delhi, notes that women often remain invisible within the legal profession due to lack of substantial responsibilities. Despite possessing 20-30 years of experience, they are frequently relegated to junior positions or assigned minor tasks like obtaining adjournments.

The recognition of additional skills in judicial orders would significantly contribute to providing due acknowledgement to women lawyers who work tirelessly behind the scenes and potentially lead to increased work opportunities from both current and future clients, especially in areas where these women excel.

A call for comprehensive mental health support in the court system

Today, an increasing number of leading multinational companies recognise the importance of mental health in the workplace. As a result, many have integrated mental health support into their employee benefits packages, including access to in-house psychiatrists. This proactive approach not only prioritises the well-being of employees but also acknowledges the significant impact mental health can have on productivity, job satisfaction, and overall organisational success.

In contrast, mental health support within the court system remains limited. While Judges and legal professionals navigate high-stress environments and emotionally charged cases, resources for addressing mental health concerns are often scarce. Unlike multinational corporations, courts typically lack dedicated in-house psychiatrists or comprehensive mental health programs.

In this context, it is pertinent to highlight and reproduce Justice Shakdher’s recommendations¹², which demand immediate action:

There needs to be more data collation and analysis about the numbers involved and sharing of best practices as far as corrective measures are concerned, to address mental health issues more robustly. So, whether it is the Bar Associations, the Bar Council of India, the Bar Council of various States, or the courts as an institution, you must have professional help available. We have done it for other areas like sexual harassment. We have committees which enable victims to articulate their grievances. Likewise, why cannot we have counsellors for those suffering from mental health issues? Everyone requires counsellors so that they can talk about mental issues without their privacy being jeopardised. Your mental health could be related to gender discrimination, sexual harassment, or something else. It could emanate from anything. If you have counsellor attached to an institution, it will help. It will help in mitigating the issue.

Mental health is a universal human right

Last year, WHO’s World Mental Health Day theme urged member States and partners to prioritise human rights based mental health efforts. Mental health, often misunderstood as solely medical, is a human rights issue. The International Human Rights framework underscores this link through treaties, commitments, and guidance. Mental health is now being recognised at the “heart of the global human rights framework¹³”. It prioritises a holistic “whole person” approach emphasising mental well-being as integral to broader human rights goals. Dr Achal Bhagat, during the panel discussion (supra), also emphasised that, “Mental Health is a human right and underscored its distinction from the pursuit of happiness.”

The Constitution of India guarantees the right to life and personal liberty under Article 21¹⁴, interpreted expansively by the judiciary to include the right to mental well-being. In addition, the Mental Healthcare Act, 2017¹⁵, reinforces this right by mandating the provision of mental health services accessible to all.

In Ravinder Kumar Dhariwal v. Union of India¹⁶, the Supreme Court examined the Indian legal framework concerning mental illness and noted that, “the 2017 Act provided a rights-based framework of mental healthcare and had a truly transformative potential. The 2017 Act was enacted by Parliament in pursuance of India’s obligations under United Nations Convention on the Rights of Persons with Disabilities¹⁷ (CRPD), repealing the Mental Health Act, 1987 (1987 Act)¹⁸. In stark difference from the provisions of the 1987 Act, the provisions of the 2017 Act recognised the legal capacity of persons suffering from mental illness to make decisions and choices on treatment, admission, and personal assistance”.

Our courts have consistently affirmed the significance of mental health, recognising it as integral to the enjoyment of other fundamental rights.

Therefore, in line with our domestic and international obligations, it is advocated on this International Women’s Day that creating a supportive and healthy work environment benefits not only women lawyers but all stakeholders. A safe workplace fosters positive mental health outcomes for women and individuals of all genders.

The following are suggestions based on the inputs of the Judges and the members of the Bar to enhance the mental well-being within the legal profession and the judicial system:

1. The collaboration between the Bar and Bench holds significant potential for bolstering the mental well-being of the legal fraternity. It can be done in the following ways:

   (a) Promoting mental health awareness in courtrooms: Quarterly workshops on mental health in smaller groups in each court and tribunal.

   (b) Courts to formulate clear guidelines on courtroom conduct and respectful communication that promote equal treatment and discourage discriminatory behaviour and prevent gender-based microaggressions, such as interruptions, verbal bullying or verbal aggression and/or dismissive behaviour towards female lawyers.

   (c) Prepare handbooks aimed at addressing gender stereotyping, specifically in court pleadings and arguments. Developing handbooks to address gender stereotyping in court proceedings will equip legal practitioners with the tools to recognise and combat biases, fostering a more inclusive and equitable legal environment. This handbook can be circulated to all courts across India vide the official websites of each court and tribunal.

   (d) Addressing gender bias: Educate court staff, lawyers, and jurors about unconscious bias and its impact on gender equality in the legal profession.

   (e) Encourage diversity training and workshops to raise awareness of gender-related issues and promote inclusive practices within the legal system.

   (f) Promoting empathetic advocacy within courtrooms is crucial for fostering a culture of respect and understanding among legal professionals. By prioritising empathy, lawyers can better connect with clients, Judges, and opposing counsel, leading to more effective communication and conflict resolution.

2. Forming a dedicated committee for mental health at court level: Additionally, forming a dedicated committee for mental health concerns within the courtrooms can help centralise efforts to address these issues effectively. This Committee can oversee initiatives such as organising targeted workshops conducted by mental health professionals, offering specific tools and coping mechanisms for managing stress, and promoting mindfulness techniques for self-care.

3. Establishing a vetted roster of psychologists: Firstly, establishing a ready roster of psychologists who are vetted and experienced in dealing with the unique stressors faced by legal professionals can provide a vital resource for women seeking support. By creating a network of trusted mental health professionals, women can access timely and confidential assistance tailored to their needs.

4. Provide supportive measures: Offer resources for legal professionals to report instances of gender-based discrimination or harassment, ensuring confidentiality and protection from retaliation. Establish support networks or mentorship programs where women in litigation can seek guidance and advice from experienced peers or mentors.

5. Conduct comprehensive research on the impact on women’s mental health in the legal profession: Despite the prevalence of anecdotal evidence suggesting the adverse effects of sexism and discrimination (gender bias, gender pay gap and unequal opportunities) on mental well-being, there has been a notable absence of comprehensive studies examining this correlation and the impact of these issues on the mental health of women in India.

Given the significant role that mental health plays in overall professional satisfaction and productivity, there is a pressing need for research initiatives to explore the psychological ramifications of gender-based challenges experienced by women in the legal field. Such studies would not only shed light on the unique stressors faced by women in this profession but also pave the way for the development of targeted interventions and support mechanisms to promote their mental well-being.

In conclusion, it is significant to state that addressing the mental health concerns of women within the legal fraternity requires a multifaceted approach that combines awareness, support, and proactive measures.

Together, through collective action and commitment to mental wellness, we can ensure that women in litigation receive the care and support they need to thrive personally and professionally.