Working Out Gender

Discrimination Against Women Lawyers in England and Wales: An Overview

by Alexandrine Guyard-Nedelec, University Paris Diderot, France

I want women to have their rights. In the courts women have no right, no voice; nobody speaks for them. I wish woman to have her voice there among the pettifoggers. If it is not a fit place for women, it is unfit for men to be there. (Sojourner Truth, 1867)

1      A lawyer once made this humorous remark about my research topic: "discrimination against women in the legal profession? — there is none: there are no women!" Such a witty remark could be an appropriate starting point to introduce the issue of discrimination against women lawyers in England and Wales. One would expect the institutions defending people's rights to be "naturally" willing to promote equality, fairness and justice, as it seems to be what lawyers and judges are supposed to fight for, all their career long. One can thus wonder why they would be reluctant to enforce anti-discrimination measures and laws. Unfortunately, the reality is a long way to this idealistic view of the justice system. Traditionally, the legal profession has been a white male profession, and women and ethnic minorities' entry is quite recent. Despite the opening up of the profession, white males still account for the vast majority of senior positions, even though women have been present long enough to be part of the selection pools when vacancies for senior positions arise. One may infer from this observation that discrimination does take place in the legal profession in spite of the legislation which has been implemented since the 1970s to fight against this attitude. Women make up half the population and should play a part in public life and in key sectors such as justice. Indeed, they can hardly trust a system that is predominantly male, and expect such a system to advise, treat and judge them fairly. Even at the early stages of my research, I understood from my readings and interviews that the discrimination women encounter is quite subtle and subjective in the sense that the formal barriers have been abolished and that protective legislation has been enacted. What is at stake, and more difficult to tackle, is a cultural legacy, the permanence of a "philosophy" which disregards women and creates a glass ceiling preventing them from reaching the upper rungs of the ladder. In order to give an overview of discrimination against women lawyers in England and Wales, I first present the legislative and historical background, and then focus on various manifestations of sex discrimination in the legal profession, i.e., the pay gap, the glass ceiling and maternity leave. Lastly, I illustrate these issues with a case study.

Legislative and historical background

Legislation

2      Discrimination mainly started to be fought against in the United Kingdom in the 1970s, with the enforcement of two key acts: the Sex Discrimination Act 1975 (SDA) and the Race Relations Act 1976 (RRA, amended in 2000), which had been preceded by the Equal Pay Act 1970. Anti-discrimination law only applies to education, employment, and the provision of services; therefore discrimination outside those specific areas is not outlawed by the statutes (Fredman 83). The expansion of the legislation was largely influenced by European developments, like the Treaty of Rome (Article 119), which in 1973 had introduced into UK law the concept of unfair sex discrimination. Indeed, since the introduction of the European Communities Act 1972, European legislation has prevailed over British legislation, and the impact has been significant in terms of labour law and Human Rights, all the more since the constitution of the UK is uncodified. The Human Rights Act 1998 (HRA), directly inspired by the European Convention on Human Rights, has provided a greater visibility to the issues of Human Rights and discrimination, and has contributed to the creation of a kind of "Human Rights culture". Article 14 of the European Convention on Human Rights (ECHR) on the prohibition of discrimination reads "the enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground such as sex, race, colour, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status." However, the protection provided by this Article is not complete because discrimination does not necessarily involve breech of one (or more) of the rights protected by the convention. Even though the protection of the HRA is only vertical (it only applies to the relations between the State and the individuals, not to the relations between individuals), and therefore has a limited impact, the fact that judges have to comply with the HRA widens the horizontal scope of the legislation and helps protecting Human Rights. The Equality Act 2006 further encouraged the "Human Rights culture" and the fight against discrimination as it involves the creation of an umbrella body, the Commission for Equality and Human Rights (CEHR). In terms of sex discrimination, Part 4 of the Equality Act goes further than the SDA and states, "it is unlawful for a public authority exercising a function to do any act which constitutes discrimination or harassment." This provision applies to judges, whose function is of a public nature, but not directly to lawyers, whose function is of a private nature. In the legal field, the Constitutional Reform Act 2005 played a major role in the fight against discrimination thanks to the introduction of an in-depth reform of the appointment process of judges in order to increase equality and diversity in the judiciary. Though it was not part of the legislation, a similar reform was proposed simultaneously for the appointment of Queen's Counsels (QCs, senior lawyers), in order to increase equality and diversity among lawyers.

3      Indeed, women lawyers can be the victims of either direct or indirect discrimination, which can translate into a variety of results, among them restricted access to chambers and law firms, sexual harassment, glass ceiling, pay gap, or confinement to certain areas of law. Direct discrimination is defined as "less favourable treatment on grounds of sex, race, religion, etc." Less favourable treatment is regarded as being on grounds of sex, race, etc., if but for that person's race or sex he or she would not have been subjected to the less favourable treatment (Equality and Diversity Code for the Bar 51). The problem is that the victim of discrimination has to find a comparator: "a comparison of the cases of different persons of different sex or marital status [. . .] must be such that the relevant circumstances in the one case are the same, or not materially different, in the other" (SDA, I, 5; emphasis added). This causes trouble both on a theoretical and a pragmatic level, since you have to compare yourself to the norm, while the norm, be it for sex or race discrimination, is the white male. Practically speaking, the problem arises from the difficulty of finding a comparator, since you need strictly equal circumstances, even though you can construct a hypothetical comparator, whose circumstances are the same but not materially different. Indirect discrimination differs from direct discrimination as it is defined as a neutral attitude in appearance, but which in effect disadvantages a certain group. This is a particularly important area as far as sex discrimination is concerned. The EC Directives 2000/43/EC ("the Race Directive") and 2002/73/EC ("the Revised Equal Treatment Directive") have initiated a more liberal approach to indirect discrimination and define it as follows: "where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary." In spite of the protection offered by the legislation and by codes of conduct which are established both by the Bar Council and the Law Society (the two main regulatory bodies of the legal profession), women lawyers often abandon starting a law suit, notably for fear of victimisation, which happens when the victim of discrimination is disadvantaged because he/she has brought a claim to defend his/her rights. The Equality Code of the Bar mentions that "it is unlawful to victimise persons by treating them less favourably because they have brought proceedings under the Race Relations, Sex Discrimination or Disability Discrimination Acts, have given evidence or information relating to proceedings or have alleged that discrimination has occurred," but it is still extremely difficult for a lawyer to bring a claim for discrimination.

Women's entry to the legal profession

4      Having described the legislation and the kinds of discrimination women lawyers frequently have to face, I now retrace their entry into the profession. The legal profession in England and Wales is divided into two branches. Barristers are specialist legal advisers and courtroom advocates, whereas solicitors provide a wide range of legal services, from general legal advice, through preparing cases for court, to appearing as advocates (DCA). Solicitors work in law firms or in companies as legal advisers, and barristers work in sets of chambers which are not partnerships operating like a law firm. A set of chambers consists of individual barristers in independent practice, which acts as a unit for certain purposes only, like recruitment (COMBAR 4). All solicitors can appear as advocates in the lower courts and, since 1993, they have been able to seek to appear in the higher courts as well. Advocates are the lawyers who appear in court to argue a case before a judge or tribunal; barrister advocates are divided into junior and QC. The status of QC corresponds to a senior position and is crucial both in terms of prestige and income. Until 1996, only barristers were eligible for appointment, but the right was then extended to solicitors with rights to appear in the higher courts, and the appointment process was finally deeply modified in 2005 in order to increase diversity.

5      The first application by a woman to be admitted as a solicitor in the UK was in 1876 (McGlynn 141): before this date there is no record of a woman attempting to enter the legal profession. Her application was rejected and women had to wait until 1912 for a bill to be introduced in Parliament, which unfortunately did not get any support. Around the same time, Gwyneth Bebb's application to be registered as a solicitor was rejected by the Law Society and her appeal was rejected similarly on the grounds that she was not a "person" within the terms of the Solicitors Act 1843. For Lord Justice Swinfen Eady, the very fact that women had never been solicitors meant that the law was that women could not be solicitors (Bebb v Law Society 1914). The fight continued thanks to the Committee for the Admission of Women to the Solicitors Profession. By 1919, the passing of the Sex Discrimination (Removal) Act achieved success, stating that women were persons and that they could hold public office. However, the persistence and resistance of traditions and customs remained very strong and this act did not mean that women were accepted into the legal profession. The first woman solicitor, Madge Easton Anderson, was admitted in Scotland in 1920; England and Wales followed with three women admitted in December 1922. They were only allowed to practise in restricted areas such as family law, matrimonial and probate work. Even today, women are often still confined to restricted areas of law, like family law. The number of women solicitors then hardly increased until the 1960s and 1970s: the numbers only tripled in 1973 with 222 women being admitted, which corresponded to 13% of the profession, thanks to a combination of factors. In 2006, 104,543 solicitors held practising certificates, and 44,393 of these were women, which amounts to 42.5%. Whereas since 1996 the total number of solicitors holding practising certificates has grown by 53.7%, the number of women holding practising certificates has more than doubled, having increased by 107.9% (Law Society statistics).

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