By Laura Alicia Aquino Arriaga, LLM, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
In the United States, if you are charged with a sufficiently serious crime and cannot afford a lawyer, the Constitution guarantees you legal representation. But what if you are a mother fighting for custody of your child? A survivor of domestic violence seeking a restraining order? A tenant facing eviction? In these high-stakes civil cases, there is no federal constitutional right to state-provided legal counsel, and the people most affected by this gap are overwhelmingly women.
The 1963 Supreme Court decision Gideon v. Wainwright extended the federal constitutional right to counsel for criminal defendants to the states, making it applicable to all criminal proceedings. However, no such guarantee exists for almost all civil litigants, even in cases with life-altering consequences, such as child custody disputes, eviction, or protection from domestic violence. In their 2021 paper, The Gender of Gideon, legal scholars Kathryn A. Sabbeth and Jessica K. Steinberg examine how the absence of appointed counsel in civil cases disproportionately affects women, particularly those from marginalized backgrounds.
The Gendered Disparities in Civil Legal Representation
Sabbeth and Steinberg’s research highlights that women are more likely than men to experience civil legal problems involving fundamental socioeconomic needs, including family law disputes, evictions, and debt collection. Yet, without a right to appointed counsel, many women must navigate these complex legal proceedings alone. The danger, of course, is that pro se litigants will experience unjust outcomes, both in terms of court outputs and procedural justice, that perpetuate economic and social disparities. The authors argue that this gap is not an oversight—it reflects instead policy choices that prioritize certain legal rights over those affecting women.
The absence of legal representation is widespread in civil courts. The Legal Services Corporation conducted a legal needs survey of the low-income population in 2016 and found that legal assistance covers 14 percent of the civil legal needs of indigent individuals. Note that “legal assistance” ordinarily means something less than a traditional attorney-client relationship. In today’s civil justice system, at least one party lacks legal representation in three-quarters of cases in state courts. The lack of comprehensive national data on gender and civil litigation complicates quantifying these disparities. Civil courts do not systematically collect demographic information on litigants, making it difficult to measure the full impact of the absence of legal representation. Nevertheless, ethnographic studies consistently demonstrate that women bear the brunt of the civil legal system’s shortcomings.
Family Law and the Disproportionate Burden on Women
Family law disputes, particularly those involving custody and termination of parental rights, disproportionately affect women. Research indicates that mothers represent 78–87% of defendants in termination of parental rights cases. For example, Dorothy Roberts’s 2001 book, Shattered Bonds: The Color of Child Welfare, showed that Black women are significantly overrepresented in child welfare proceedings.
Women and Evictions: The Overlooked Crisis
Eviction proceedings are another area in which pro se litigants are disproportionately women. A study of eviction cases in Baltimore found that 79% of tenants brought to court were women. Similarly, a study in Milwaukee revealed that women comprised 72% of eviction defendants, with Black women facing eviction at rates 2.5 times higher than Black men. Meanwhile, some research is suggestive of the idea that housing insecurity destabilizes families and has lasting economic and psychological effects. Sociologists Matthew Desmond and Rachel Tolbert Kimbro found that mothers who experience eviction face increased material hardship, higher rates of depression, and worse health outcomes for both themselves and their children.
Debt Collection and Gendered Financial Insecurity
Debt collection lawsuits, one of the fastest-growing case types in civil courts, also disproportionately affect women. The National Center for State Courts estimates that a quarter of all civil cases involve lawsuits brought by debt collectors. Sabbeth and Steinberg argue that women of color, who are more likely to carry high levels of debt and default on payments, are often targeted in these cases. According to the authors, while corporations and financial institutions almost always have legal representation, consumers—primarily women—appear pro se in up to 99% of debt collection cases. The consequences of these lawsuits can include wage garnishment, asset seizure, and long-term financial instability.
Systemic Barriers: Caregiving, Economic Disparities, and Judicial Bias
Broader system inequalities further exacerbate the impact on women stemming from the lack of a right to counsel in civil cases. Women bear a disproportionate share of caregiving responsibilities for children, elderly relatives, and disabled family members. These duties limit their financial resources, time, and ability to navigate legal proceedings effectively.
Additionally, the gender pay gap and the devaluation of unpaid labor leave women at a financial disadvantage when seeking legal representation. Judicial biases also play a role, with some judges holding stereotypical views about women’s roles in custody disputes, eviction cases, and financial matters. These overlapping barriers reinforce structural inequities and limit women’s ability to assert their legal rights.
Progress and the Need for Further Research
Some states have implemented pilot programs offering legal counsel in civil cases in which pro se litigants are disproportionately women. The National Coalition for a Civil Right to Counsel has mapped out where states and cities provide legal representation for different types of civil cases. Examples of areas subject to these state and municipal programs include domestic violence protection and parents in child custody disputes, both core family law areas that disproportionately affect women.
A critical next step is to evaluate how legal counsel affects women’s outcomes in civil cases. While research on the effects of legal representation in custody disputes and debt collection remains limited, some studies have examined its impact on eviction proceedings. Seron et al. (2001) and Greiner et al. (2013) found significant benefits, while Greiner et al. (2011) reported no substantial effect. A promising approach would be to build on this evidence and analyze states that have implemented right-to-counsel programs and compare them to similar states without such initiatives. By constructing a comparative framework, researchers could assess the extent to which legal representation improves outcomes for women in civil cases. This could include metrics such as the percentage of mothers retaining custody, the reduction in eviction rates, or improved financial stability following debt collection proceedings.
Researchers could employ a synthetic control method, which allows for the construction of a counterfactual scenario by combining data from multiple states with similar demographic and economic characteristics. This approach would enable scholars to isolate the causal impact of legal representation on women’s legal and economic outcomes, offering concrete evidence of the benefits of expanding access to counsel.
Qualitative research could also provide valuable insights. Interviews with women who have received legal representation and with those who have not could highlight the broader implications of legal aid, such as increased confidence in navigating the legal system, improved mental health, and reduced stress associated with legal disputes.
Conducting such a study would require significant funding. As Sabbeth and Steinberg highlight, many civil courts do not collect demographic data on litigants, making it difficult to track gender disparities in legal representation. Adequate financial resources would be necessary to gather data, conduct longitudinal studies, and support field research in states that have implemented right-to-counsel initiatives. Without such investment, the full extent of the impact of legal representation on women’s legal and economic stability may remain unknown.
This type of research is crucial because one of the justifications for denying a categorical right to counsel in civil cases in Lassiter v. Department of Social Services was the assumption that legal representation may not provide a significant benefit. Assessing whether and under what circumstances legal representation produces benefits for women could challenge this precedent and support the case for expanding legal protections. The stakes are simply too high to ignore.
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.