This has been a good year for women and the law. Back in January, Susan Kiefel was sworn in as the first female Chief Justice of the High Court of Australia. This month, Anne Ferguson was named the new Chief Justice of the Supreme Court of Victoria. There are female Chief Justices in Queensland and the ACT. Although sexism still pervades the legal profession, the tide of history is turning for women in the judiciary.
Dame Roma Mitchell has longed claimed the title of Australia’s first female judge. Christened by her biographers as “Roma the First”, Mitchell is remembered for her long list of pioneering achievements: Australia’s first female Queen’s Counsel, first female university Chancellor, first female state governor — and first female judge. Her appointment to the Supreme Court of South Australia in 1965 has gone down in history as the moment when a woman finally penetrated the male bastion of the judiciary.
But what about May Darlington Lahey, a Queenslander who became a judge in California way back in 1928? Although her legal career took place overseas, Lahey can lay claim to being Australia’s first woman judge.
Yet as so often happens to expatriate Australians, Lahey’s name has slipped from the historical record. Her disappearance is typical of the tendency to forget the many Australians - especially women - who found success overseas. Without their stories, our history is too easily skewed towards male activity and achievement.
Lahey was born in Canungra, south-east Queensland, in 1889, the daughter of sawmill operator James Lahey and his wife Amelia. She attended Brisbane Grammar School, and matriculated in 1906. According to family legend, Lahey was a feisty young woman with the gift of the gab, and an uncle living in California suggested she put her debating skills to work in the courtroom.
Regardless of the truth of this tale, by 1910 Lahey had relocated to Los Angeles, and there enrolled at the University of Southern California Law School. She was soon a top student. In 1913, Lahey “beat all the boys in her year,” and even scorned one mark of 100%. After graduating in 1914, Lahey was admitted to the Californian bar, and began specialising in probate. This made her the first female Queenslander to practise law.
The legal world Lahey entered remained a confirmed boy’s club. Although women had studied and practised law in the US since the 1870s, they still represented only a tiny minority of the profession — less than 2% in 1920. The few women who managed to carve out legal careers suffered significant hostility and discrimination. Lahey “almost starved” as a fledgling attorney because men proved reluctant to pay for her services.
She later recalled that:
When I got a male client he would always suggest he was doing me a great favor to give his business to a woman and therefore a reduction in fee of about 50% would be appropriate.
But this bad situation was still better than Australia, where not a single woman had worked in the law until Flos Greig was admitted to the Victorian bar in 1905. Women were not even entitled to practise law in New South Wales until 1918. Lahey’s home state of Queensland only acquired its first woman lawyer in 1926.
Lahey recognised that greater opportunities were available in the US, and adopted American citizenship in 1916. As her legal career developed, she became prominent in women’s organisations such as the League of Women Voters and the Women Lawyers Club, and was also an active Republican who campaigned for Herbert Hoover in his 1928 presidential campaign. She was renowned for her vivacious personality, Australian accent and talent for public speaking.
In December 1928 Lahey became the second female judge appointed to the Los Angeles Municipal Court. This was only seven years after Mary O’Toole became the United States’ first woman municipal judge — and 37 years before Roma Mitchell’s South Australian appointment. By all reports, Lahey was a popular choice. “This is the first appointment I’ve made while I’ve been in office, of which I’ve heard no objection by anyone!” California Governor C. C. Young announced during her investiture. In a 1933 profile of the Australian-born judge, the Los Angeles Times noted that Lahey had “helped considerably to allay masculine disapproval of women lawyers.”
On occasion, her courtroom played host to Hollywood stars. After film executive Paul Bern committed suicide in 1932, his actress wife Jean Harlow appeared in court to assert her claim to his estate. Lahey appointed Harlow the executor of Bern’s will.
After 15 years on the bench, Lahey was unanimously elected the court’s first female Presiding Judge. She remained at the court until retirement in 1965. She never married, had no children, and died in Los Angeles in 1984. Her story has been almost forgotten in Australia, recorded only in a self-published history of the Lahey family.
Forgetting the expat experience
This forgetting is typical of the expat experience. The many Australians who won success abroad are little celebrated at home. Novelist Christina Stead, composer Peggy Glanville-Hicks and playwright Sumner Locke Eliot were each marginalised within their lifetimes and are still groping for full recognition today. Thousands more have fallen through the cracks altogether. Such elisions distort our historical memory, leading us to sideline large swathes of Australian achievement and overlook that Australia has long been entangled with the wider world.
Our ignorance of expatriate Australians such as Lahey also keeps women out of the national story. Ambitious and unconventional women faced a hostile culture within Australia, and many found more congenial environments abroad. Men could more easily exercise their talents within Australia, and their stories have come to dominate a history that is largely confined to the nation’s borders. When we forget overseas Australians, we forget a significant portion of our female achievers, and preserve the fiction that Australia’s past is little more than a boy’s own tale of bushrangers, Anzacs and cricketers.
Maybe the time has come to rewrite our expatriates into the Australian past. Roma Mitchell has given her name to a high school, a scholarship, and both a statue and building on Adelaide’s North Terrace. This is all to the good, as Mitchell was a trailblazer who well merits our remembrance. But perhaps Lahey — arguably our first woman judge — also deserves some commemoration as well.