Feminist lawyers: the fight for gender equality in the legal profession
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Although junior lawyers are split roughly equally between male and female, the senior positions at law firms, barristers’ chambers and in the judiciary are still overwhelmingly dominated by one demographic – white, upper-class men, predominantly public school and Oxbridge educated. This article looks at the ongoing fight to achieve gender equality in the legal profession.
Gender inequality is still rife in the legal profession. Although over 50% of new entrants to law since 1993 have been women, almost 25 years on, the Law Society’s annual statistics report in 2014 showed that women currently make up around 57% of all trainee solicitors and associates, but still only 24% of partners (dropping to 19% in the magic circle). (A detailed gender breakdown in the most recent 2015 report has not been made publicly available.)The most senior positions at law firms, barristers’ chambers and in the judiciary are still overwhelmingly dominated by one group – white, privileged men. Although there has been widespread acknowledgement that this is a problem, calls for real change have been met with intransigence from those at the top. Lord Justice Sumption, who as one of 12 Supreme Court judges (only one of whom is a woman) is one of the most senior lawyers in the country, infamously said that women should be patient and that it will take another 50 years to achieve gender equality in the senior judiciary, arguing that moving “quickly” to address the imbalance would put off talented male lawyers and lower the quality of the UK justice system – remarks which infuriated equality advocates and have been criticised elsewhere as the “last gasp of the old white male in his ivory tower”.
Ill-advised as those comments may have been, Sumption did highlight one important point – the quality of our laws and our justice system affects all of us. But it is here that the gender inequality in the legal profession becomes not only an issue affecting women professionals, but a disaster for all of society. One narrow demographic – white, well-off men – still dominates the jobs where the big decisions affecting all of us get made: in parliament, the judiciary and company boardrooms, which have a long history of successfully lobbying governments to implement their favoured policies. The debating, making, interpreting and enforcing of laws and policies by people from just one demographic has meant that those very laws which structure how society is run are in many cases fundamentally misogynist, creating huge barriers and disadvantages for all women.
However, the fight for equality is on. The rest of this article will look at the extent of the problems facing women in law and explore what can be (and is being) done about it.
The concept of meritocracy is – rightly – hugely valued in the legal profession. There is a prevailing view among many that no action should be taken to combat gender discrimination which also risks undermining the principle that employers should hire the best person for the job, regardless of gender or any other factor. Married to this is the belief that there is no ingrained ‘glass ceiling’ in law and that determined women with the right qualities can and do rise to the top. And there are indeed many successful women in senior roles in the legal profession, from partners in law firms to QCs and judges. However, a glance at the statistics shows that these women are exceptions to the general rule, leaving the question: is structural inequality the reason that women are not making it into senior positions in anywhere near the same numbers as men? If so, this is not meritocracy. The alternative – that the current gender imbalance at the top of the profession is meritocratic and not due to any barriers facing women – implicitly means that gender inequality is a result of most women not being good enough for (or wanting) top jobs. Jo Shaw, barrister at One Essex Court and founder of the Feminist Lawyers Society says, “I was at an event where one of the speakers said that there is no glass ceiling at either the Bar or the judiciary. I am a barrister of 18 years’ call and have seen men overwhelmingly occupy the senior positions throughout that time, so that didn’t tally with my experience at all; but I was also looking around the room and there were some young women barristers and lawyers there, many of whom were from BAME backgrounds, and I wondered if the speaker was saying that it was their fault – or the fault of women like them – that women aren’t represented in the judiciary and the senior Bar in equal numbers to men. That is the logical extension of the argument; if there is no glass ceiling, this must mean that it is women lawyers who are not up to scratch – which is patently nonsense. Those who deny the glass ceiling seem to be suggesting that it’s the people applying who need to change, but they are not being open minded enough to see that there is structural inequality, and that it is this that we need to address.”
This is still a profession in which many would rather a junior barrister, Charlotte Proudman, remain “professional” (ie, silent) when faced with a senior colleague’s sexist behaviour than challenge it. Indeed, the attitudes of those in senior positions are falling well behind those of more recent entrants to the profession. “Women have contacted me to thank me for speaking out and some have said they now feel more confident in speaking out themselves, as the incident drew international media attention,” Proudman explains. “This included a lot of negativity and backlash from the likes of the Daily Mail, but there was also a lot of encouragement and positivity, and recognition that sexism is not acceptable in the workplace. If the incident has had an impact, I hope it is has encouraged women to speak out against these kinds of comments, but the problem is that only a minority of women in senior positions in the legal profession are really in a position to engender change. Sadly, there is a lack of collective power and action – often a woman who is subject to sexism has to deal with it on her own. There are some people in the legal profession – women and men – who are incredibly supportive and realise that this is a huge issue, but many of them have supported me in private while being reluctant to speak out in public.”
This culture of complacence – summed up when Sumption dismissed the view that the legal profession is too influenced by an “old boys’ network” as “nonsense” – is compounding the problem. The profession’s regulators all have extensive rules and guidance on promoting equality, as well as professional and ethical behaviour, but these are seemingly not being taken seriously, and are not implemented. “A minority of barristers actually read the [Bar Standards Board] equality rules – I think that most barristers don’t actually know what the rules state,” says Proudman. “The rules may set out that sexual harassment is unacceptable and the various disciplinary processes that you can use if you feel discriminated against, but it’s a rather bureaucratic exercise. What we really need is direct action. We need tangible change, but before we can achieve that we must first recognise that there is a significant problem at the Bar: lack of diversity. I don’t think that the legal profession and politicians who are entrusted with making our laws accept and understand how the misogynistic design and enforcement of laws relate to how those who are tasked with creating and enforcing law are disproportionately skewed toward one gender, one class and one ethnicity – this is the real uphill battle.”
The fact that the legal profession, like parliament, is dominated by one group of people of the same gender, class and ethnicity has far-reaching consequences for the rest of society. With the opinions and backgrounds of one socioeconomic group disproportionately informing what laws are passed and how they are constructed, many of those laws inherently favour men to the detriment of all others. “Legal constructed discrimination dominates statute and case law,” says Proudman. “We need to look at the laws which affect women’s lives – around rape, for example. It is incredibly difficult – in fact almost impossible – to launch a prosecution and secure a conviction for rape, and part of the problem is the construction of the law, which appears to define rape as a gender neutral crime, as if women have gender neutral bodies, when in fact rape is highly gendered. This is also apparent in how rape is considered by the law as a form of violence similar to battery or GBH, which are also viewed as gender neutral crimes, but actually sexual violence is not the comparable to other such crimes and is overwhelmingly committed against women by men. It is a gendered crime. Another example is abortion – women still do not have a free, unrestricted choice to terminate a foetus in 2016. While in Canada, women are legally permitted to make decisions over their own bodies. A further example is child prostitution. There is only strict liability for men who pay for sex with children if those children are below the age of 13. Between the ages of 13-17, as long as the man paying for sex has a ‘reasonable belief’ that the child is over 18, there is unlikely to be a prosecution – less still a conviction. Domestic violence cases are yet another example, where women victims of domestic violence have their cases heard predominantly by male judges, while domestic violence itself is rarely seen as a hindrance to child contact, even where a child has witnessed violence that has put the mother’s life at risk.”
Inequality across society is reflected and perpetuated by the unequal laws which affect women. It is sad that many of our laws still promote a backwards, UKIP-style value system that, while perhaps right and proper to those of the country’s decision makers whose childhoods were spent in boarding school common rooms and who now patronise exclusive social clubs, don’t reflect the interests or values of most of society. As Proudman points out, “Inequality is continually reinforced; some of the comments I hear from judges and barristers in court or read in judgments are shocking – there are almost endless examples of judges telling victims of assault that they were ‘silly’ to get drunk. It’s basically saying, what did they expect? They were ‘asking for it’. I remember one criminal barrister writing in his blog last year that in his view consent is consent, regardless of how intoxicated the woman might be. These people are trusted with enforcing the law and there could be an argument that their personal beliefs will impact on their professional opinions. The onus is constantly falling on the victim rather than the perpetrator, while the character assassination of a woman by questioning her about who she has had sex with and how many times in order to construct an image of her as a ‘harlot’ is commonplace. It’s bad for society, not just women in the legal profession. The legal system discriminates in favour of men to the extent that women are imprisoned for prostitution, while men who pay to sexually exploit women walk free.”
The feminist movement has achieved so much for women’s rights throughout its history and it is undoubtedly in the middle of a much-needed resurgence today, aware that the fight for gender equality is far from won. With unequal laws being made and interpreted to the detriment of so many women, the legal profession is as important a battleground as any for the movement.
The quotas debate
The debate about whether to introduce mandatory quotas to ensure that women are appointed to senior positions in equal numbers to men has unsurprisingly divided many women in the legal profession. It has been argued that the numbers of men and women at the top will even out incrementally over time, while for some, the idea that women might need quotas to achieve equality is deeply offensive. The latter opinion has been expressed by Dame Janet Gaymer, who as one of the legal profession’s most senior and respected lawyers, and former commissioner for public appointments in England and Wales, knows a thing or two about how career advancement works. “At the end of the day, it’s a competitive process and you want the very best person for the job whether they’re male, female, ethnic minority or disabled,” Gaymer said at a discussion on quotas last year – sentiments with which most people probably agree.
However, this arguably misunderstands the purpose of quotas and how they could be used. The argument against quotas presupposes that women are competing for jobs in a fair and meritocratic playing field. In reality, evidence overwhelmingly shows that this is not the case. “I would love for there to be a solution other than quotas, but I don’t see that there is one,” explains Shaw. “We have constantly been told that quotas are not necessary and it is just more time that is needed, but this has been happening for years. I believe that quotas should be introduced and when equality has been achieved, hopefully we would not need them anymore. It is essential, for example, that we have a judiciary which reflects the population that it serves, in the same way that it is important to have representative boards of companies and representative legislative assemblies – these people are in extraordinarily powerful and privileged positions in which they make decisions which affect everyone, so there is absolutely no justification for them to come from only one demographic.”
Proudman agrees: “The reason women are not progressing is not because they don’t have the same intellectual capacity as men; just look at the schools achieving the highest GCSE marks and see how many of those are girls’ schools. We have to therefore question why women aren’t progressing. Institutional sexism is one of the main reasons, but there is such reluctance to speak about it in the legal profession. I believe that quotas are the only way to break this barrier, because at the moment women are looked down on when it comes to being promoted to senior positions and it is senior men who are often in charge of that process. We have been waiting for centuries for greater equality, but incrementalism has failed – senior men tend to favour other men for promotion because they come from the same background and schools, and have the same hobbies and views. Sumption’s comments about how a rush for gender equality would have terrible consequences for justice are a perfect example. His comments translate to: women are simply not as up to the job in equal numbers to men. It is a ridiculous comment to make, but he is a man who through his own admission gained pupillage through his father’s connections and now sits in the Supreme Court, a position of great seniority and influence. It’s almost astonishing that women didn’t revolt after such comments, to be frank – how are women even supposed to have the confidence to apply for senior roles when it is clear that senior figures in the profession think so little of them? Women are undermined like this from the moment they set foot in chambers, let alone court. Sumption’s view that women should wait another 50 years for equality is exactly what was said to women 50 and 100 years ago – equality still hasn’t ensued, and it won’t while senior white men continue to control who is appointed to senior positions, and perpetuate gender and race discrimination – either consciously or unconsciously – while doing so. The male Supreme Court justices are not going to voluntarily relinquish their positions to women, so mandating them to do so with quotas for women is the only way of achieving gender equality.”
In the debate surrounding quotas, it is important to understand what is actually being proposed. It is not women who are lacking, but the fundamentally unfair system which is preventing women from rising to the top – women who, on a level playing field, should be reaching the top jobs on their own merit. Equality cannot be achieved without definitively diversifying the culture and makeup of those who have power over these appointments, as there is little appetite for change among the old guard for whom the system seems to be working nicely.
Time for change: advice for aspiring feminist lawyers
Women have achieved fantastic progress in the century since they were admitted to the law – achievements that you can appreciate and celebrate yourself through the First 100 Years project, which has documented the stories of the pioneering women who blazed a trail into the profession. However, the fight is far from over and has even precipitated the establishment of the relatively new Feminist Lawyers’ Society, a welcome new forum for like-minded people to discuss ideas, take action and support each other. “It is surprising that a Feminist Lawyers’ Society is necessary in 2016 because there is legislation in place which makes discrimination unlawful, so although there is formal equality under the law, equality has not been delivered in practice,” explains Shaw, the society’s founder. “For decades feminists have been campaigning for women’s rights and equality, and have been given various assurances over the years that it is just a matter of time until this is achieved, but we are still nowhere near equality. I started the Feminist Lawyers’ Society because I realised that if Sumption is right, the colleagues with whom I was recently studying for a master’s – most in their early 20s – will be retired by the time that we have achieved equality in the legal profession. How is it acceptable that people with huge contributions to make in their careers are going to be shut out because of some pre-existing state of affairs that everyone acknowledges is unfair and irrational? I was surprised that there wasn’t a Feminist Lawyers’ Society already, given that there has been a wealth of fantastic feminist legal scholarship and that there are lots of passionate feminists in the legal profession. I thought that if no one else was going to, then I had better do something about it!”
And although it focuses on feminist issues, the society is open to all. “Anyone can join the Feminist Lawyers’ Society, including men,” Shaw continues. “The point of feminism is not that women are better or should have more rights than men; it is that we have an analysis which shows that the way society is structured doesn’t work for women, who consistently lose out. It doesn’t work for men either in many cases, who are also constrained by societal ideas of what is acceptable, except that it is overwhelmingly men who are in charge at the top and making all the decisions, whereas women are often ignored and patronised. In the end, it is all of society that loses out because we are not benefiting from the contributions that everyone can make. We are open to people in all areas of the legal profession – barristers, solicitors, chartered legal executives, apprentices, academics and the judiciary, and to those of all or no gender.”
Shaw also stood as a Women’s Equality Party candidate at the 2015 London Assembly elections. The party fielded candidates at assembly elections across the country, making it a directly political way for feminists to consider showing their support. It is now standing in this week’s general election, where Women’s Equality Party leader Sophie Walker is standing in Shipley. It is a pointed move to challenge the constituency’s incumbent Conservative MP, Philip Davies, a vocal anti-feminist whose views many feel make him also a misogynist. “The Women’s Equality Party was founded in order to address some of the things that I have been talking about, because we have seen how those in power are good at sounding positive and saying the right things, but not so good at actually doing anything unless there is pressure on them,” explains Shaw. “We are campaigning on issues such as equal pay, equal parenting, equal education, ending violence against women and girls, and equal representation in organisations, the media and elsewhere. Our organised movement is already helping to shift the debate and that in itself is powerful – this is all about getting involved and effecting change ourselves. My passions are equality and human rights, and these are what the Women’s Equality Party is about – I’m delighted to be contributing to it and we have experienced a lot of enthusiasm for what we are trying to do from both women and men, as so many of these issues – parental leave, for example – affect men too.”
With a groundswell of popular support and feminist issues starting to take their rightful place in mainstream debate, there is plenty of cause for optimism and hope, not least among women considering careers in law in the future. “We want to work in an environment where sexism is not acceptable and where it doesn’t exist, and the only way that we are going to reach that goal is by challenging sexism directly,” says Proudman. “My case hasn’t set feminism back – I received hundreds of messages of support from women. I’m invited to speak at events to share feminist values. The drive for equality is about engendering a discourse, which will lead to legal change – people are finally talking about quotas for women. No longer is the issue seen as taboo. My advice to women reading this and considering entering the legal profession is to be mindful of structural sexism, and remember that if you have a bad experience with promotion or feel uncomfortable with comments that have been made about you, this is not necessarily because of you as an individual, but because of how the environment is structured against women. My only other advice is to urge women to support quotas for women. I think quotas as an initiative is becoming increasingly more popular among younger women. If we want to be agents of social change, we really have got to be strident!”
Shaw is also conscious that awareness and solidarity are crucial. “I would say speak up, talk to colleagues and friends, and be aware and informed about the existence of inequality,” she advises. “I’m afraid to say that when I started at the Bar – and the same was true when I began getting involved in politics – I wrongly believed that working extremely hard and doing the right thing would be enough for myself and my female colleagues to not be held back by structural inequality. I was wrong and it was a sad thing to realise because I thought that merit and hard work are always ultimately rewarded, but what I have seen during my time in the profession is simply not the case – and that is true across the board. The profession has changed a little since I started, but not much. Statistics still show the same trend; that those dropping out of the profession at the very junior end are split roughly equally between women and men, while at the senior end, women make up the vast majority of those dropping out while men progress on to the higher echelons. People starting out in the legal profession should begin with a reality check about what is happening to their senior colleagues, and be aware that the likelihood is that this will stay the same unless it is made to change. It is incumbent on everyone, from Lord Sumption to the most junior pupil in a set of chambers, to do something about it.”