This has been another momentous year for feminism and the legal profession in the UK. The last 12 months has been a time of both progress and regression for the feminist movement. Feminists have been working for decades to challenge gender injustice and inequality that persists under the law. Has 2017 brought us any closer to achieving gender equality? Here are five highs and lows from 2017:
1. Baroness Hale appointed as the first woman supreme court president
Baroness Hale was sworn in as the first woman President of the Supreme Court of the United Kingdom on 2 October 2017. Occupying the highest legal position in the country, Baroness Hale has broken the final glass ceiling in achieving the most senior legal appointment in the country. She has shown through some of her judgments that “women are equal to everything”. This is the motto – Omnia Feminae Aequissimae – that she had engraved on a coat of arms when she was appointed to the Law Lords in 2004. Baroness Hale is no longer a lone woman in the highest court of our country, as Lady Justice Black joins her, the second woman to be appointed to the Supreme Court. They sit alongside 10 white men from largely elite backgrounds.
- Gender inequality pervasive amongst the judiciary
A homogenous group of socially privileged white men are still disproportionately represented in the most powerful judicial positions in the country. Government judicial diversity statistics in 2017 show that only 28% of all court judges, 24% of Court of Appeal judges and 22% of High Court judges were female, which is consistent with 2016. The gender imbalance between male and female judges in the UK is amongst the worst in Europe. Recognising the importance of gender balance to promote justice and fairness, I am a strong advocate of quotas for women in the judiciary. It is a system that has been tried and tested, having been introduced in the International Criminal Court, the European Court of Human Rights and the Belgium Constitutional Court, which ensures a more equal gender balance in the judiciary. Should the Labour Party attain political office, Baroness Shami Chakrabarti would become the Attorney General and gender quotas could firmly be on the agenda. In her book, Of Women: In the 21st Century Baroness Shami Chakrabarti sets out a compelling and robust argument for quotas in the judiciary, which, has the power to persuade even sceptics.
- Sexual harassment in the legal profession
Post-Harvey Weinstein, sexual harassment in the workplace has remained in the media eye. The #MeToo campaign that followed allegations of abuse from Hollywood stars, media icons and politicians, led to women sharing their stories of rape, assault and sexual harassment at the hands of men. Lawyers shared on twitter their experiences of sexism, bullying and harassment in the workplace. A group of barristers established an anonymous “Behind the Gown” twitter account to highlight the abuse of male power at the Bar that has led to the exploitation and marginalisation of women.
As sexism in the legal profession gained traction, I took part in a few media debates that garnered attention mainly due to those on the other side espousing sexist attitudes towards women. On Good Morning Britain solicitor Nick Freeman argued for the introduction of a three-year statute of limitation for sexual assault cases. It is an ill-conceived and retrograde step which will have the inevitable effect of deterring, discouraging or disqualifying women from coming forward and reporting historical cases – as the evidence from the United States makes clear.
Also in the news is Ben Emmerson QC of Matrix Chambers, a high profile human rights barrister accused of sexually assaulting a colleague. An independent review by Dame Laura Cox QC into Matrix Chambers’ handling of a serious of sexual misconduct allegation concluded that some of the actions of senior management had been “wholly inappropriate” and that there were “institutional failings”. It appears even human rights chambers may not be free of sexism and sub-optimal practices around them.
The Equality and Human Rights Commission established by statute in 2006 recently wrote to five Magic Circle law firms – Allen & Overy (A&O), Clifford Chance, Freshfields Bruckhaus Deringer, Linklaters and Slaughter and May – to warn that it could take legal action if they fail to respond to sexual harassment complaints in the workplace. The EHRC is asking firms to “delegate responsibility for ensuring a shared understanding and effective implementation of the legal guidance on sexual harassment, as defined in the Equality Act 2010.” The firms must respond by 19 January 2018.
Meanwhile, the head of the Bar Council, Andrew Landon QC, has written to all heads of Chambers advising them of the Bar Council’s zero-tolerance approach to, and guidance on, sexual harassment, and to ask Chambers to review their policies on sexual harassment and equality. The legal profession, which is responsible for upholding the rule of law, must also be held accountable for discrimination and sexual harassment against women. Achieving gender parity within the legal profession is one step towards changing the male dominated culture in the profession that creates the conditions for sexual harassment and discrimination, which can have devastating effects for women lawyers.
- Key challenges for BAME lawyers
Race diversity remains a core challenge in the legal profession. The Lammy Review, conducted by David Lammy MP, is an independent review into the treatment of, and outcomes for, BAME individuals in the criminal justice system. It exposes the racial bias in our justice system that has devastating consequences for Black and Ethnic Minority individuals.
In an article celebrating Black History Month in the UK, Chambers Diversity shared the experiences of BAME lawyers in the legal profession. Female lawyer Funke Abimbola explained that she had “experienced both racial and gender-based discrimination in my career”. Representation of BAME court judges is between 8-9% in London and the Midlands. The BAME population in the UK is around 6%. The question is: how many BAME court judges are women from socially deprived backgrounds? Social deprivation is better understood with the concept of ‘intersectionality,’ which is used to define the multiple layers of discrimination individuals can experience on the basis of gender, class, nationality, disability and religion. These different aspects of identity can impact upon people’s experiences of structural inequality and oppression.
Abimbola contends that, “Because gender diversity has been the focus of attention for several years, this has been at the cost of advancing the race agenda. This now means that race diversity is 20 years behind gender diversity.” The promotion of gender equality has the potential to impact upon 51% of the population including BAME women. Achieving diversity does not involve pitting gender against race or measuring the success of gender equality against race equality when the intersecting patterns of marginalisation are complex and inter-related. It is important that any analysis of discrimination includes gender, class, and race, in order to show people’s different experiences of marginalisation.
- Diversity can set law firms apart in a competitive market
Diversity is fast becoming a means of distinguishing between law firms and identifying those that have a male, pale and stale image. In a competitive legal market, clients are now focusing on law firms’ diversity. The diversity argument, which was originally pioneered in business, has proved successful. Catalyst research shows that companies with a higher percentage of women in executive positions have a 34% higher total return to shareholders than those with lower numbers of women. The argument is that increasing and sustaining diversity, generates new ideas and enhances productivity and efficiency that leads to growth and healthier profit margins. An article promoting the business case in law firms under the guise of achieving diversity encourages “diverse attorneys to write articles and op-eds – especially those who describe their own personal experience and journey being a diverse attorney”. The Law Society published a report titled “Diversity and inclusion in law firms: the business case” which argues that diversity is important because it is the law, the client base and profession is changing and diversity can mean achieving equality policies. A quasi-capitalistic enlightened self-interest rationale for encouraging gender equality may be effective. However, I have long been wary of applying such crude profit-maximising arguments to the law. The rule of law is underpinned by principles of justice, fairness and equality, rather than financial imperatives.
Overall then, strides have been made towards exposing gender inequality and achieving gender equality. The next 12 months will doubtlessly reveal whether the ramifications of a post-Weinstein era can translate into tangible and durable, improvement in the lives and career opportunities for women.
Charlotte Proudman is an established barrister in family law and public law. Combining legal practice with academic research Charlotte is an Affiliated Researcher at the Department of Sociology, University of Cambridge, from which she was awarded her PhD on the law and policy on female genital mutilation (FGM) in England. Charlotte was a former Visiting Researcher at Harvard Law School where she studied feminist legal theory.Recognising the potential and challenges of the law promoting gender-equality, Charlotte is often invited to speak and write about gender-based legal reforms in areas such as FGM, forced marriage, prostitution, rape and quotas for women.