Maybe the problem is that women don’t commit as many crimes as men, or are treated far more leniently than men in the system, but if a women is prosecuted for a crime, and lacks the ability to afford an attorney to represent her, Gideon has her covered as it does anyone in the criminal legal system. Fair? Not fair enough, as argued by Jessica Steinberg and Kathryn A. Sabbeth in their law review article, The Gender of Gideon.

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men.

In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality.

But, you ask, doesn’t the right to counsel under Gideon attach to everyone, anyone, who is prosecuted for crime? Are public defenders spread so thin that they only defend male defendants and leave women to fend for themselves? Hardly. The focus here shifts entirely away from criminal prosecution in order to “center” on women.

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel. Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued. In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel. Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

Normally, the argument for civil Gideon is based on the need of litigants for counsel in matters where they tend to do very poorly, unfairly so, such as landlord/tenant court. In those arguments, the distinction is that it can have a devastating, punitive, impact on litigants who tend to be poor (which is why they’re there for non-payment of rent in the first place), uneducated and incapable of mounting an adequate defense. This time, however, the shift is away from tenants and placed instead only on female tenants.

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases—family law, eviction, and debt collection—all disproportionately affect Black women. As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy. Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis. First, their individual rights are routinely trampled. Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law. Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives. Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination. Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible. This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

It’s not that Gideon doesn’t include the limiting factor of criminal prosecutions. It’s not that Gideon doesn’t include, without distinction, defendants of any sex or gender within its protections. So what is it? Law is hard, women affected most “resulting in women’s entrenched subordination.” And this is poor Clarence Earl Gideon’s fault?