• Law & Order

Gender in the Legal Profession: Can Regulation Break Through the Glass Ceiling?

Written by Christy O'Neil

Third Year, Lancaster University, United Kingdom

Source: Richey Law Firm

Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order


Introduction


The year 2019 marked the centenary of the Sex Disqualification (Removal) Act 1919, passed by the Parliament of the United Kingdom, which allowed women to enter the legal profession for the first time.[1] Yet gender inequality persists in the legal profession in today’s times. The robust debate in this area covers economic, political, and biological matters.[2] However, these matters are only by-products of deeply rooted gender stereotypes: a societal divide which leading academic Cynthia Epstein calls “the most persistent and deepest divide in the world today”.[3] This issue is not isolated to the United Kingdom (UK), particularly when considering how much the English and Welsh legal position on equality mirrors that of the United States.[4] It is in this respect that this article justifiably considers American and British academics, alongside scholars from other common law jurisdictions.


The scope of this article will consequently be narrowed to how gender inequality, defined as the state of individuals not being treated fairly due to their sex, persists in the legal professions due to social forces.[5] This will be demonstrated in three ways. Firstly, it will be shown how gender inequality continues in the legal profession due to issues of progression, rather than access. Secondly, this prevalence will be aligned with social stereotypes which are obstructing progress from being made. Lastly, it will be demonstrated that progress has failed due to a lack of social impetus for female progression in the legal professions; a trending continuum since the Sex Disqualification (Removal) Act 1919. This article will, therefore, conclude that whilst there is momentum to challenge gender inequality in the legal profession, it will remain fruitless unless the underlying social stereotypes are challenged. The only way this can be achieved is not through legal reform, but via society’s own declaration for female seniority.

I. The Issue of Progression


Firstly, gender inequality persists in the legal profession due to obstructions to the progression of females to superior positions in the professional hierarchy. Data initially suggests that progress has been made, as women are present in all areas of law.[6] On this basis, Lopez asserts that women “have arrived” in the sector.[7] There is a comparative weight behind this argument. For example, compared to the 428 women called to the Bar between 1919 and 1939[8]15,716 were called in 2014.[9] In the judiciary, more than half of magistrates are female[10], and in law firms, females make up 48% of all lawyers.[11] From this foundation launches two key arguments; the feminization of the legal profession approach[12], and the trickle-up theory.[13]

The former contends that the influx of females into the legal profession has initiated a process in which the industry is becoming increasingly feminised.[14] The latter states that just as over time more women have graduated and qualified as lawyers, time will enable more women to progress up the professional hierarchy.[15]

Both are credible when, for example, noting Raday’s case study of the Israeli legal profession in which he contends that female legal progression can only improve at the same pace as their economic status in society.[16]

However, these approaches are simplistic. In the first instance and generally speaking, religion plays a more significant role in economic and professional hostility to female equality in Israeli society than in Britain.[17] Linked to this is the fact that the aforementioned arguments rest on misleading statistics.[18] A closer analysis highlights how inequality increases in more senior positions. A report last year revealed that women comprised 29% of judges overall.[19] Women comprise 33% of firm partners, and even less in the largest firms.[20] This trend continues at the Bar[21]; where whilst 33.5% of self-employed barristers are women, data generally shows that this figure falls as seniors by Year of Call increases.[22] Equality in the legal profession is consequently of a complexity which cannot be explained by numerical data alone, a view Rackley convincingly upholds through in-depth data analysis.[23]

While access to the legal profession for women has generally increased, an invisible factor that statistics cannot account for, is blocking female progression and entrenching gender inequality in the industry.

The difficulty of female progression in the legal profession and consequent persistence of gender inequality is attributable to prevailing gender stereotypes in society. It will first be shown that gender is a social construction, and secondly, that in asserting these constructions, both women and men uphold gender inequality in the legal industry.[24] There are two somewhat polarised gender constructions that exist in both the western and eastern traditions; women are caregivers in the private sphere, whereas men are the bread-winners in public society.[25] Naturally, each sex works to “continuously construct their identities from gendered expectations”.[26] These identities translate into the workplace, an arena that the female stereotype is incompatible with. This incompatibility can be attributed to motherhood, which as a private sphere function, as Thornton compellingly describes, cannot operate in the public workplace.[27] One can see this manifest today through the overwhelming presence of women in caregiving areas of law; family, for example, being the only practice area where more women than men exist at the Bar.[28] This shows how these stereotypes remain largely unchanged.

II. A Societal Problem


Secondly, adhering to these stereotypes means that even when women access the public sphere, such as the legal profession, there is a reluctance to progress to positions of seniority. This is because to do so, would be to further distance oneself from one’s socially indoctrinated gender construction. This is demonstrated by considering how women who do progress tend to distance themselves from their domestic role. An insight into this is provided through one lawyer’s reflection: “My husband is a primary carer for our children and I came back to work very quickly, it was my own choice.”[29] These ‘choices’ themselves are “highly gendered”; the speaker here, for example, recognized that to go back to work, she had to sacrifice her role as the primary caregiver.[30] It is as a result that despite legislation such as Section 39 of the Equality Act 2010, which seeks to limit discrimination in the hiring process, progression rarely occurs unless women neglect part or all of their assigned identity.[31] In obstructing progression, it is these social stereotypes that enable gender inequality to persist in the legal profession.


There is a strong case to be made that inequality is an institutional problem characteristic of the legal profession, rather than society. Peptione identifies how the Inns of Courts, as “societies of masculine culture” and sites of “gender interrogation”, have historically deterred women from a career at the Bar.[32] Epstein herself conceded that gender inequality is not just a case of social inequality, but that institutions play a role in maintaining the “boundaries”.[33]

This notion is creditable when considering workplace sexual harassment.

Brenner attributes the low levels of women in senior legal positions to their greater intention to quit due to harassment from male superiors.[34] Noting that Peptione fails to explain why the Courts uphold a masculine culture, however, this can only be attributed to the social sphere; particularly as sexual harassment penetrates most areas of society.[35]


A more convincing argument is advocated by Kirsteva, whose theory of abjection attributes issues such as harassment not to the legal institution but to male discomfort with the “non-erotic materiality of the female body in the public sphere”.[36] This returns to the conflict between the private and the public spheres, and how the female association with the former, due to her physical child-bearing form, makes her ill-suited to the latter. This abjection also manifests more subtly; exemplified recently, for example, by Lord Sumption, who stated that if the drive for gender equality occurred too quickly, male judicial candidates may feel that “the cards are stacked against them”.[37] Male hesitancy towards the idea of female progression in the legal profession serves as a subconscious yet probable attempt to protect their stereotypical realm of dominance.[38] As a result, whilst the legal industry nurtures gender inequality, the behavioral ramifications are rooted in the gender stereotypes assigned by society. It is these stereotypes that are obstructing female progression in the legal profession.

III. The Inadequacy of Reform


Lastly, reform since 1919 has inadequately improved gender equality in the legal profession as gender stereotypes have stifled social activism. To demonstrate this, it will first be shown that legislation is an inappropriate vehicle for change. Secondly, it will be demonstrated that progress can only be made through radical social advocacy. Firstly, legislation cannot improve inequality in the legal sector as it cannot change society’s views. The Sex Disqualification (Removal) Act 1919 aimed to “amend the law with respect to disqualification on account of sex”; enabling women to access to careers at the Bar, as solicitors, in the judiciary and other civil roles.[39] No substantial legislative Act has served to promote gender equality in the legal profession since. Yet the 1919 Act merely removed disqualification; a passive concession that then Lord Chancellor Frederick Smith stated to neither “enable nor compel women to serve” in the legal sector.[40]

This Act shows how whilst the law can grant access, it does little to assist progression.[41]

Logan has noted how new female judges were confined to juvenile justice[42], for example, and in juries, women were generally excluded from cases where it was felt their emotions may interfere.[43] In Poongavanam v The Queen, the Privy Council upheld a law that excluded women from serving on juries.[44] It is clear, as indicated by these examples, that all the Act has done is maintained the social status quo.[45]

However, Thornton provides the inverse stance that progress has been made through law due to social pressures.[46] Helena Normanton became the first female barrister in 1922[47], and by 1926, 1,526 women had been appointed as magistrates.[48] In Nagle v Fielden, the court held that refusing a horse training license to a woman due to her gender would be “entirely out of touch” with society in the mid-20th century.[49] Although this must be contextualized. Danckwerts LJ in Nagle gives an important insight into social attitudes at the time by contending that females should only be allowed to work in professions that they “can do as well as men”.[50]

The delay of female access to the legal profession is also notable; that only eight-four years after the 1919 Act was the first female president of the highest court appointed.[51] Legalisation, therefore, is clearly a limited route to pursue.

A more suitable route is the breaking down of the gender stereotypes which are shown to persist in Nagle. This can be achieved in two ways. Firstly, active denial of the existing gender stereotypes is required; as evident during the First World War where the need for women to enter the male spheres to work disrupted the existing gender dynamics in society.[52] The Law Times frequently reported of the progress suffragist campaigners made with regards to entrance into the legal profession during this period.[53] Secondly, this active movement needs to occur collectively.[54] This idea, propounded by Gertner, is required to break down the “maternal wall” that both men and women have built against female legal progression.[55] Until these stereotypes are denied and broken down in this way, gender inequality will remain an inherent and static issue in the legal profession.

Conclusion


In conclusion, gender inequality within the legal profession persists due to prevailing social attitudes which have remained significantly unchallenged since 1919. In considering gender inequality in this industry in the context of a broader social equality crisis, with reference to ethnicity, sexuality, and disability, a social context becomes the most suitable arena in which to explain the issues in the legal profession.[56] This article has shown this by establishing firstly how inequality is not access but a progression issue. Secondly, how progression is restricted by deeply embedded gender stereotypes in society. Lastly, it has been demonstrated that legislative reform is an inappropriate means of challenging this issue and that it is due to the lack of radical collective action to break down gender stereotypes that inequality persists. It is, therefore, assumptive to suggest that the law has the capacity to incite social change. This is a misconception that has been made since 1919, and if gender inequality in the legal profession is to be challenged, it is a mindset that must be abandoned.


[1] Sex Disqualification (Removal) Act 1919.

[2] Sarah Irwin, Lay Perceptions of Inequality and Social Structure, 52 Sociology 211, 212 (2018). [3] Cynthia Fuchs Epstein, Great Divides: The Cultural, Cognitive, and Social Bases of the Global Subordination of Women, 72 American Soc. Rev. 1, 2 (2007). [4] Philip N Sooben, The Origins of the Race Relations Act 1976 (University of Warwick 1990) 36. [5] Helena Afonso, Marcelo LaFleur and Diana Alarcón, Development Issues No. 1: Concepts of Inequality (Development Strategy and Policy Analysis Division of UN/DESA 2015). [6] Maria Pabon Lopez, The Future of Women in the Legal Profession: Recognizing the Challenges Ahead by Reviewing Current Trends, 19 Hastings Women’s L.J. 53, 53 (2006). [7] Id. at 53. [8] Ren Pepitone, Gender, Space and Ritual: Barristers, the Inns of Court, and the Interwar Press, 28 Women’s History 60, 77 (2016). [9] Bar Council, Snapshot: The Experience of Self-Employed Women at the Bar, Bar Council (Jun. 1, 2015) https://www.barcouncil.org.uk/media/379529/snapshot_-_the_experience_of_self_employed_women_at_the_bar.pdf. [10] Ministry of Justice, Judicial Diversity Statistics 2018, Ministry of Justice (Jul. 12, 2018) https://www.gov.uk/government/statistics/judicial-diversity-statistics-2018. [11] Solicitors Regulation Authority, How Diverse are Law Firms? Solicitors Regulation Authority (2017) https://www.sra.org.uk/sra/equality-diversity/archive/law-firms-2017/. [12] David Weisbrot, Australian Lawyers (Longman Cheshire 1990) 86. [13] Georgina Murray, New Zealand Women Lawyers at the End of the Twentieth Century in Ulrike Schultz and Gisela Shaw (eds), Women in the World’s Legal Professions (Bloomsbury 2003) 123, 135. [14] Weisbrot, supra note 11, at 86. [15] Hilary Sommerlad, The Myth of Feminisation: Women and Cultural Change in the Legal Profession, 1 Int. J. Legal Profession 31, 34 (1994). [16] Frances Raday, Women in Law in Israel: A Study of the Relationship between Professional Integration and Feminism, 12 GSU L.R. 525, 549 (1996). [17] Id. at 549. [18] Id. at 526. [19] Ministry of Justice, supra note 9. [20] SRA, supra note 10.

[21] Hilary Sommerlad, The “Social Magic” of Merit: Diversity, Equity, and Inclusion in the English and Welsh Legal Profession, 83 Ford. L.R. 2325, 2329 (2015). [22] Bar Standards Board, Women at the Bar, Bar Standards Board Research Department (Jul. 2016) https://www.barstandardsboard.org.uk/uploads/assets/14d46f77-a7cb-4880-8230f7a763649d2c/womenatthebar-fullreport-final120716.pdf. [23] Erika Rackley, Women, Judging and the Judiciary: From Difference to Diversity (1st edn., Routledge-Cavendish 2012) 36. [24] Leslie Bender, Sex Discrimination or Gender Inequality? 57 Ford. L.R. 941, 947 (1989). [25] Id. at 947. [26] Id. at 947. [27] Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (Oxford University Press 1996) 230-1. [28] Bar Council, supra note 8, at 27. [29] Id. at 27. [30] Rackley, supra note 22, at 61. [31] Equality Act 2010 s 39. [32] Pepitone, supra note 7, at 60. [33] Epstein, supra note 2, at 4. [34] Hannah Brenner, Expanding the Pathways to Gender Equality in the Legal Profession, 17 Legal Ethics 261, 265 (2014). [35] Pepitone, supra note 7, at 60. [36] Thornton, supra note 26, at 230. [37] Peter Walker, Don’t Rush Gender Equality in the UK Judiciary, The Guardian (Sept. 22, 2015, 11:32 AM) https://www.theguardian.com/law/2015/sep/22/gender-equality-warning-uk-legal-profession-supreme-court-judge-jonathan-sumption. [38] Law Society, Influencing for Impact: The Need for Gender Equality in the Legal Profession, Law Society (Mar. 8, 2019) https://www.lawsociety.org.uk/topics/research/women-in-leadership-in-law-report-need-for-gender-equality. [39] Sex Disqualification (Removal) Act 1919 s 1. [40] HL Deb 22 July 1919, vol 35, cols 891-911, 892. [41] Martin Pugh, Women and the Women’s Movement in Britain 1914-1959 (1st U.S. edn, Marlowe & Co. 1992) 90. [42] Anne Logan, A Suitable Person for Suitable Cases: The Gendering of Juvenile Courts in England c1910–1939, 16 Twent. Cent. British Hist. 129, 129 (2005). [43] Kevin Crosby, Keeping Women Off the Jury in 1920s England and Wales, 37 Legal Studies 695, 695 (2007). [44] Id. at 695; Poongavanam v The Queen Co (Mauritius) [1992] UKPC 13. [45] Margaret Thornton, Technocentrism in the Law School: Why Gender and Colour of Law Remain the Same, 36 Os. Hall L.J. 369, 370 (1998). [46] Id. at 370. [47] Pepitone, supra note 7, at 60. [48] HC Deb 22 November 1926, vol 200, cols 567-8W. [49] Nagle v. Fielden [1966] 2 Q.B. 633, 651 (Lord Danckwerts). [50] Id. at 647. [51] Lady Hale, Making a Difference? Why we need a more Diverse Judiciary, 56 N.I.L.Q. 281, 281 (2005). [52] Mary Jane Mossman, The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Profession (Hart Publishing 2006) 65. [53] Id. at 65. [54] Nancy Gertner, Feminism, Stalled: Thoughts on the Leaky Pipeline, 2012 Mich. L.R. 1473, 1476 (2014). [55] Id. at 1476. [56] Irwin, supra note 1, at 212. BIBLIOGRAPHY

Statutes

1. Sex Disqualification (Removal) Act 1919.

2. Equality Act 2010.

Case Law

1. Nagle v. Fielden [1966] 2 Q.B. 633.

2. Poongavanam v. The Queen Co. (Mauritius) [1992] U.K.P.C. 13 6 Apr. 1992.

Secondary Sources

1. Helena Afonso, Marcelo LaFleur and Diana Alarcón, Development Issues No. 1: Concepts of Inequality (Development Strategy and Policy Analysis Division of UN/DESA 2015).

2. Bar Council, Snapshot: The Experience of Self-Employed Women at the Bar, Bar Council (Jun. 1, 2015) https://www.barcouncil.org.uk/media/379529/snapshot_-_the_experience_of_self_employed_women_at_the_bar.pdf.

3. Standards Board, Women at the Bar, Bar Standards Board Research Department (Jul. 2016) https://www.barstandardsboard.org.uk/uploads/assets/14d46f77-a7cb-4880-8230f7a763649d2c/womenatthebar-fullreport-final120716.pdf.

4. Leslie Bender, Sex Discrimination or Gender Inequality? 57 Ford. L.R. 941 (1989).

5. Hannah Brenner, Expanding the Pathways to Gender Equality in the Legal Profession, 17 Legal Ethics 261 (2014).

6. Kevin Crosby, Keeping Women Off the Jury in 1920s England and Wales, 37 Legal Studies 695 (2007).

7. Cynthia Fuchs Epstein, Great Divides: The Cultural, Cognitive, and Social Bases of the Global Subordination of Women, 72 American Soc. Rev. 1 (2007).

8. Nancy Gertner, Feminism, Stalled: Thoughts on the Leaky Pipeline, 2012 Mich. L.R. 1473 (2014).

9. Lady Hale, Making a Difference? Why we need a more Diverse Judiciary, 56 N.I.L.Q. 281 (2005).

10. HL Deb 22 July 1919, vol 35, cols 891-911.

11. HC Deb 22 November 1926, vol 200, cols 567-8W.

12. Sarah Irwin, Lay Perceptions of Inequality and Social Structure, 52 Sociology 211 (2018).

13. Law Society, Influencing for Impact: The Need for Gender Equality in the Legal Profession, Law Society (Mar. 8, 2019) https://www.lawsociety.org.uk/topics/research/women-in-leadership-in-law-report-need-for-gender-equality.

14. Maria Pabon Lopez, The Future of Women in the Legal Profession: Recognizing the Challenges Ahead by Reviewing Current Trends, 19 Hastings Women’s L.J. 53 (2006).

15. Anne Logan, A Suitable Person for Suitable Cases: The Gendering of Juvenile Courts in England c1910–1939, 16 Twent. Cent. British Hist. 129 (2005).

16. Ministry of Justice, Judicial Diversity Statistics 2018, Ministry of Justice (Jul. 12, 2018) https://www.gov.uk/government/statistics/judicial-diversity-statistics-2018.

17. Mary Jane Mossman, The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Profession (Hart Publishing 2006).

18. Georgina Murray, New Zealand Women Lawyers at the End of the Twentieth Century in Ulrike Schultz and Gisela Shaw (eds), Women in the World’s Legal Professions (Bloomsbury 2003).

19. Ren Pepitone, Gender, Space and Ritual: Barristers, the Inns of Court, and the Interwar Press, 28 Women’s History 60 (2016).

20. Martin Pugh, Women and the Women’s Movement in Britain 1914-1959 (1st U.S. edn, Marlowe & Co. 1992).

21. Erika Rackley, Women, Judging and the Judiciary: From Difference to Diversity (1st edn., Routledge-Cavendish 2012).

22. Frances Raday, Women in Law in Israel: A Study of the Relationship between Professional Integration and Feminism, 12 GSU L.R. 525 (1996).

23. Solicitors Regulation Authority, How Diverse are Law Firms? Solicitors Regulation Authority (2017) https://www.sra.org.uk/sra/equality-diversity/archive/law-firms-2017/.

24. Hilary Sommerlad, The Myth of Feminisation: Women and Cultural Change in the Legal Profession, 1 Int. J. Legal Profession 31 (1994).

25. Hilary Sommerlad, The “Social Magic” of Merit: Diversity, Equity, and Inclusion in the English and Welsh Legal Profession, 83 Ford. L.R. 2325 (2015).

26. Philip N Sooben, The Origins of the Race Relations Act 1976 (University of Warwick 1990).

27. Margaret Thornton, Dissonance and Distrust: Women in the Legal Profession (Oxford University Press 1996).

28. Margaret Thornton, Technocentrism in the Law School: Why Gender and Colour of Law Remain the Same, 36 Os. Hall L.J. 369 (1998).

29. Peter Walker, Don’t Rush Gender Equality in the UK Judiciary, The Guardian (Sept. 22, 2015, 11:32 AM) https://www.theguardian.com/law/2015/sep/22/gender-equality-warning-uk-legal-profession-supreme-court-judge-jonathan-sumption.

30. David Weisbrot, Australian Lawyers (Longman Cheshire 1990).

Quick Links

Contact Us

Follow Us

  • LinkedIn
  • Instagram

Law & Order 2020

All rights reserved ©️