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25 September 2015

Institutional sexism in the legal profession will only end when lawyers confront its existence

Our justice system suffers because women are invisible in shaping laws that impact women’s lives.

By Charlotte Rachael Proudman

Sexism in the legal profession is structural and institutional. This became apparent to me when I experienced sexism as an undergraduate law student. After applying for work experience, I was told by a solicitor to send in a bikini shot as opposed to my CV. During a work placement with a set of Chambers, a barrister rubbed his hand up and down my thigh while in a taxi on the way to Court. He then proceeded to tell me that women have sex with senior barristers in exchange for pupillages (barrister traineeships). Years on and I still encounter, and challenge sexism.

Lawyers from around the world contacted me to share their experiences of sexism. A woman told me that following the conclusion of an agreement between multinationals a colleague said to her that he agreed because of her sexy and distracting legs. Another women informed me that a colleague dissuaded her from reporting sexual harassment by a senior lawyer arguing it would be career suicide. She went ahead and reported it, only to find it was indeed career suicide. After returning to work from maternity leave, a woman found that her office was in the hallway. A woman contacted me to say that after 6 months as a trainee lawyer she attempted to challenge sexism, only to be told, she was naïve to believe that men will not “flirt” with her, because everyone in the City “flirts” with trainees.

Given the insidious nature of sexism in the legal profession, is it any wonder that women lawyers are moving out of the profession in staggering numbers? Statistics from a recent Bar Council report published this year, “Snapshot: The Experience of Self-Employed Women at the Bar”, show that while 50 per cent of people called to the Bar are women, only 12 per cent are Queen’s Counsel, 24 per cent are judges, and only one of 12 Supreme Court Justices is a woman. This has implications for recruitment of the judiciary, and the number of women Silks.

The Bar Council report contends that women are leaving law because they are pushed into “women’s areas of law”, such as family law, and they have to balance a career, and caring responsibilities. The rationale for women lawyers leaving the law is, in my view, inherently sexist. Women are pushed into women’s work because of their gender, while men are allowed to excel in the areas of law that they choose. Meanwhile, progressing to Queen’s Counsel or the judiciary is often irreconcilable with balancing a career and caring responsibilities. Yet, caring commitments is an inevitable part of many women’s lives. The failure of the Bar to value women’s familial responsibilities reflect the male world of the legal profession: work and networking comes before family life. As long as women are expected to conform to male standards in choosing between work and family, women will continue to be excluded from the legal profession.

But there is another reason for the high attrition rate that is not sufficiently explained by the Bar Council: institutional sexism. Baroness Hale, the only woman Justice in the Supreme Court, criticised “unconscious” sexism among judges, saying that talented women are overlooked for senior jobs. She argued that appointing judges from diverse backgrounds would improve the “democratic legitimacy” of the legal system. Indeed, many women explained in the Bar Council report that they are prone to sexist comments from men whose attitudes worsen as they progress from junior barristers to judges. One woman barrister recounted her experience as a pupil (trainee barrister). She said: “My second six pupil supervisor came in one Monday morning (my having had a haircut over the weekend) and said you look quite f*ck-able with your hair like that… He also once said, put your jacket on, I am only human… and… remind me are you a stocking or tights girl…” The Bar Council report describes inappropriate behaviour and comments about appearance as “banter” (see page 5). Lawyers in the highest echelons of power continue to deny the existence of sexism in the legal profession. Failing to take sexism seriously means women’s subordinate position in the legal realm is solidified.  

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Institutional sexism will only change when lawyers confront the existence of sexism. The Bar Council report noted that some women lawyers felt that senior female lawyers did not promote gender solidarity. One woman said: “If you’re young and a pupil and you’ve got a senior female member of chambers, they’re not always nice to you. It’s a bit like they have a Margaret Thatcher attitude of: ‘I’m going to be the only one here, the only female one here.’” The response of senior women lawyers is an example of self-protection. The powerless minority is wary of supporting the powerless minority. Instead, some women lawyers align themselves with men who hold the balance of power. In truth, when women are confronted with sexism, they are rarely in a position to challenge inappropriate comments without fear of jeopardising the small gains that they have made.

Any attempt to support progressive social change is perceived as a threat to the imbalance of vested power, and could result in a backlash. Recognising and challenging institutional sexism needs to be combined with a genuine commitment to equal representation of women in the legal profession through the introduction of quotas for Queen’s Counsel and the Judiciary. Norway, one of the four countries with the highest ratings for gender equality worldwide, has a long history of quotas in politics, the public sector, and the corporate realm, which has increased women’s representation to over 40 per cent in these areas.

However, Supreme Court Justice Lord Sumption cautioned earlier this week that a rush for equal representation of women at the top of the legal profession could destroy the judiciary as it could “have appalling consequences for justice”. How would people respond if Sumption said a rush for equal representation of ethnic minorities or LGBT people at the top of the legal professional could have appalling consequences for justice? Just imagine how appalling it would be for justice to have women equally represented in the profession. Underneath Sumption’s arrogant presumption is a belief that the subordination of women to men in the legal profession is not an egregious wrong. He maintains this position even when evidence shows the systematic oppression of women lawyers. And he shows contempt for quota initiatives that would improve the position of women when there is no ethical justification for doing anything less than stopping the inequality of women in the legal profession.

With depressing inevitability, Sumption claims that the Bar is “meritocratic”. Women simply need to work harder and they will be rewarded. Yet the Supreme Court Justice’s career is not an example of meritocracy. Sumption benefited from positive discrimination after he was awarded a pupillage (barrister traineeship) through his father’s connections. In reality, white, upper and middle class, heterosexual men have always enjoyed a privileged status in the profession – and continue to do so. Men do not hold the balance of power because they possess a superior work ethnic. They maintain positions of power because they support a system that produces and reproduces inequality and discriminatory outcomes. Wherever the devaluation of women is passively accepted, an anti-woman stance is taken.

As long as women are reliant on men to promote them in an environment underpinned by sexism, they will wait for half a century, according to Sumption, until they are equally represented in the legal profession. In the meantime, our justice system is suffering because women are invisible in shaping laws that impact on women’s lives. The law continues to exercise power over women by regulating women’s bodies through abortion, rape, prostitution and pornography laws and so on. While at the same time, the law silences women from participating in the construction of law because they are not equally represented at Queen’s Counsel or judicial level. We need lawyers that represent the public, rather than lawyers that represent vested interests.

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