“It’s very concerning that at this critical time, where women are seeking an entry point into their legal careers, that such barriers exist,” attorney Melinda Koster, who specializes in discrimination cases, told BuzzFeed News. “This can mean that women end up postponing taking the bar examination altogether, or they have to experience significant anxiety or pain while taking the bar.”
In a statement to BuzzFeed News, the State Bar of California’s Chief of Programs Donna Hershkowitz said they are reviewing their accommodations policies and recently held a forum to discuss issues that have arisen and how they might be addressed. “We look forward to working with former and current applicants as well as the disability rights community as we revise and reshape our process. That being said, unfortunately we are not in a position to comment on individual cases,” Hershkowitz said.
A breastfeeding mother taking the exam in another state this week, who asked to remain anonymous due to fears of harming future job prospects, told BuzzFeed News she also tried to apply for accommodations. She, too, was denied; her jurisdiction offers a space to pump and allows test takers to bring their equipment, but denied her request for additional breaks so she could pump as needed. Administrators said extra breaks would only be granted to applicants with disabilities covered by the ADA, which lactation is not.
“I was told I could just pump during my lunch break,” she said. “Right now, I feed my baby every two hours … so really, you’re looking at four hours between pumping.”
With no recourse, the mother has little choice but to accept the decision and get back to studying. She plans to pump in her car up until the moment she has to go inside for the exam, then pump in the car again during lunch. Days before the exam, she took a practice test, during which she “practiced” pumping according to the schedule the bar will force her to follow.
For lactating people, being told to “just pump during lunch” is insufficient to address their individual needs. The inflexible schedule of the bar can mean test takers are unable to express human milk as regularly as they need to, putting them at risk for health complications including painfully engorged breasts, a reduced milk supply, clogged ducts, or even mastitis, a bacterial infection that can become serious.
“Philosophically, people think breastfeeding is a choice,” attorney Fran Griesing told BuzzFeed News. “[But] it’s not something you can turn on and off easily … [or] say, ‘I’m not going to do it today.’ To say it’s a choice, whether to start in the first place or somehow not do it during the bar exam, is beyond ridiculous.”
And it’s even less of a “choice” than ever right now, due to the severe formula shortage that’s left parents across the US struggling to feed their babies.
Learning of future lawyers struggling to access pregnancy-related bar accommodations has felt particularly grim following the repeal of Roe v. Wade, Griesing said. And it’s not the only way she’s seen sex inequality in bar exam practices — it was just last year that the American Bar Association passed a resolution urging that examinees should be permitted to bring menstrual products, but many state bar examiners still don’t offer clear guidance. These policies can have an outsize impact not just on cisgender women, but also on trans and nonbinary people, for whom accommodations may be even harder to access and put them at risk of being involuntarily outed.
“To me, it’s sadly ironic … that the highest court in the land has made that decision,” Griesing said of the Supreme Court’s abortion ruling. “But the same profession that those justices come from and the leaders of that profession are making it harder and harder for women to become lawyers.”
MothersEsquire, an organization advocating for mothers in the legal field, has taken a leading role in pushing for those struggling to get pregnancy accommodations for the bar. Michelle Browning Coughlin, the group’s founder, told BuzzFeed News she typically hears from at least one person going through this each bar cycle. For the upcoming July bar, she has heard from three.
“There is such a contradiction around the fact that [bar administrators] are presumably interested in seeking justice, fairness, the kinds of things the law is supposed to stand for,” Coughlin said. “And yet here they are in a situation where their own ability to enter that profession is being hampered merely because they’re a breastfeeding mother.”
Many in the legal field argue that the denial of these accommodations is discriminatory, due to the disproportionate impact it can have on pregnant or nursing people. But the liminal status of most of these people — people who have completed law school, but don’t have jobs yet or haven’t begun their employment — means that federal laws that might have protected them do not apply during this period of limbo. As students, Title IX would forbid discrimination on the basis of sex, including being pregnant or a parent. Once employed, federal laws give people who lactate the right to express milk in the workplace and prohibit pregnancy-based discrimination.
In the absence of federal legislation that would unambiguously protect pregnant or breastfeeding bar examinees, Coughlin must advocate for every person who reaches out to MothersEsquire individually, familiarizing herself with the wildly varying policies of any of the 50 states.
But even in states where pregnancy-related accommodations can be accessed, such policies are often vaguely written and difficult to find, causing some applicants to be denied over minor errors or missing forms they never knew were needed.
Koster, the lawyer, told BuzzFeed News that women are spending time researching their rights, speaking to lawyers, and going through “extremely burdensome” appeals processes at a time when they should be studying instead.
