The Elastic Ceiling: Gender and Professional Career in Chinese Courts

• Published date: 01 March 2017
• DOI: http://doi.org/10.1111/lasr.12249
• Date: 01 March 2017

The Elastic Ceiling: Gender and Professional

Career in Chinese Courts

Chunyan Zheng

Jiahui Ai

Sida Liu

Since the 1990s, the number of women in Chinese courts has been increasing

steadily. Many women judges have risen to mid-level leadership positions,

such as division chiefs and vice-chiefs, in the judicial bureaucracy. However, it

remains difficult for women to be promoted to high-level leadership positions,

such as vice-presidents and presidents. What explains the stratified patterns

of career mobility for women in Chinese courts? In this article, we argue that

two social processes are at work in shaping the structural patterns of gender

inequality: dual-track promotion and reverse attrition. Dual-track promotion

is dominated by a masculine and corrupt judicial culture on the political track

that prevents women from obtaining high-level promotions, but still allows

them to rise to mid-level leadership positions on the professional track based

on their expertise and work performance. Reverse attrition enables women to

take vacant mid-level positions left by men who exit the judiciary to pursue

other careers. Takentogether, the vertical and horizontal mobility of judges in

their career development presents a processual logic to gender inequality and

shapes women’s structural positions in Chinese courts, a phenomenon that we

term the “elastic ceiling.”

Gender inequality is a highly stable social structure, but it is

produced and reproduced in dynamic social processes. In the

early twenty-first century, the feminization of the legal profession

has become a worldwide phenomenon (Kay and Gorman 2008;

Michelson 2013; Schultz and Shaw 2003). It is happening not

only in law schools and law firms (Epstein 1981; Hagan and Kay

1995; Mertz 2007; Reichman and Sterling 2004) but also in

The authors thank Swethaa Ballakrishnen, Ira Belkin, Hae Yeon Choo, Jerome A.

Cohen, Thomas Kellogg, Ji Li, Ling Li, Benjamin L. Liebman, Neysun Mahboubi, Marga-

ret K. Lewis, Carl Minzner, Xiaolong Peng, Debra Schleef, Gay W. Seidman, Hilary Som-

merlad, Lillian Hsiao-Ling Su, Juan Wang, Chi Yin, and anonymous reviewers of the Law

&Society Review for their helpful comments, as well as our students, especially Wei Xing,

for their excellent research assistance during fieldwork.

The three authors contributed equally to the article.

Please direct all correspondence to Sida Liu, Department of Sociology, University

of Toronto, 725 Spadina Avenue, Toronto, Ontario M5S 2J4, Canada; e-mail:

sd.liu@utoronto.ca

Law &Society Review,Volume 51, Number 1 (2017)

V

C2017 Law and Society Association. All rights reserved.

168

courts (Schultz and Shaw 2013). The Anglo-American literature

on women judges, however, mostly focuses on judicial appoint-

ments and “feminist judging” (Beiner 2005; Kenney 2013;

Schultz and Shaw 2012; Solimine and Wheatley 1995). How

women navigate the hierarchical and bureaucratic judicial systems

of civil law jurisdictions remains a new territory in sociolegal

scholarship.

Chinese courts are no exception to the global trend of femini-

zation, though it is still at an early stage. Since the 1990s, the

numbers of women in law school classrooms and on the bench,

as well as in law firms, have been increasing steadily. In 2010,

there were approximately 45,000 female judges in China,

accounting for about a quarter of all judges in the country (Song

and Liu, forthcoming). By 2013, the number of female judges

had increased to about 57,200, or 28.8 percent of all Chinese

judges (National Bureau of Statistics, People’s Republic of China

2015). In younger cohorts of judges, the proportion of women is

even higher, exceeding half of assistant judges in many courts.

More importantly, many women judges have risen to mid-level

leadership positions in Chinese courts, such as division chiefs and

vice-chiefs, who are in charge of specialized divisions in the judi-

cial bureaucracy. However, it remains difficult for women to be

promoted to top leadership positions, such as vice-presidents and

presidents. In other words, despite the structural barriers and

workplace challenges that they face, women have at least weak-

ened the glass ceiling in the Chinese judicial system.

What explains the stratified patterns of career mobility for

women in Chinese courts? We argue that two social processes are

at work: (1) dual-track promotion, or vertical mobility in the judicial

and civil service bureaucracies; and, (2) reverse attrition, or hori-

zontal mobility between the judiciary and other professional

careers. First, personnel decisions in Chinese courts are subject to

close Party and administrative control, which creates two different

tracks of leadership promotion for mid-level and high-level posi-

tions. Women are not disadvantaged in the professional track of

promotion within the court, but they lack social and cultural capi-

tal in the political track that is dominated by local Party-state

leaders and a masculine and corrupt culture. Second, female

judges often assume mid-level leadership positions after male

judges in such positions resign to pursue other professional

careers, such as lawyers, in-house counsel, or other Party and

administrative positions. Taken together, the vertical and horizon-

tal mobility of judges in their professional career presents a proc-

essual logic to gender inequality and shapes women’s structural

positions in Chinese courts, a phenomenon that we term the

“elastic ceiling.” That is to say, the glass ceiling for women in the

Zheng, Ai, &Liu 169

judicial bureaucracy is not broken; instead, it is stretched to

become thicker, more elastic and hierarchical, and less visible.

Gendered Mobility in Professional Career: A Processual

Approach to Inequality

Since Epstein’s (1981) pioneering study Wome n in L aw,

research on gender inequality in the legal profession has docu-

mented extensively the structural and cultural barriers that wom-

en face in law firms and law school classrooms (e.g., Hagan and

Kay 1995; Mertz 2007; Reichman and Sterling 2004; see Kay

and Gorman [2008] for a review). These barriers include not

only income gaps between male and female lawyers (Dinovizer

and Hagan 2014; Dinovitzer, Reichman, and Sterling 2009; Dix-

on and Seron 1995) and sexual harassment in the workplace

(Rosenberg, Perlstadt, and Philips 1993; Sommerlad 2016) but

also their different chances of employment, promotion, and attri-

tion in career development (Epstein et al. 1995; Gorman 2005;

Hull and Nelson 2000; Kay 1997; Kay and Hagan 1998). By con-

trast, the existing scholarship on women judges has focused on

judicial appointments and “feminist judging” in Anglo-American

countries (Beiner 2005; Kenney 2013; Solimine and Wheatley

1995). Few studies have closely examined the social processes by

which women’s judicial careers are structured, particularly in

terms of promotion and attrition (but see Schultz and Shaw

[2013]).

To some extent, this research gap is owing to the fact that

judges in Anglo-American countries do not have a separate

career path from other legal professionals. Most judges, men or

women, began their legal careers as attorneys, prosecutors, or

legal academics. Then they were appointed to the bench only

after a long period of law practice. However, in civil law jurisdic-

tions ranging from Continental Europe to Latin America to East

Asia, judges and lawyers are separate career paths and the judi-

cial system is a highly sophisticated bureaucracy, closely con-

nected with but structurally distinct from the private bar (Abel

and Lewis 1989; Ginsburg and Moustafa 2008). Accordingly, the

career of women judges in these jurisdictions is not only a longer

path than legal careers in Anglo-American contexts but also a

more complicated one with many structural barriers, traps, and

glass ceilings.

How to study gender and professional career in such bureau-

cratic contexts? More specifically, for this study, how to explain

women’s limited success in getting promotion in Chinese courts?

The social science literature on gender provides at least four

170 The Elastic Ceiling