Gender Balance Across the Legal Profession

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August of this year saw the publication of a study commissioned by the JURI committee regarding the gender proportions of the European legal sector.

The outcome of the European Parliament’s study reinforces that gender bias and gender stereotypes persist in the legal profession – a concern in a sector that is implicitly aware of the rules that have been created regarding equality.

The progress that women have made in the legal sector to date

Whilst women were late in entering the legal sector, recent figures show that 60% of European law students and graduates are now female. However, 2015 figures also showed that in Europe only 43% of lawyers were female which suggests a significant disconnect between female law graduates and those progressing to access the profession as lawyers.

In the UK, women have overcome numerous barriers to enter the legal profession – the Parliament’s study highlights that the first female to be able to graduate in law was only 100 years ago in 1917, yet that the first female lawyer wasn’t admitted in Scotland until 1919 or in Ireland, England and Wales until the early 1920s. Moreover the first female judge wasn’t appointed in England and Wales until 1945 as a metropolitan stipendiary magistrate, as a recorder until 1956, as a County Court judge until 1962 and as a High Court judge until 1965. Comparatively Northern Ireland did not appoint a female county court judge until 1998 or female high court judge until 2015. In this context, it is even more shocking to consider that Baroness Hale was the first female appeal court judge appointed in 2004 and that Lady Black and Baroness Hale are the only two women to have ever been appointed to the Supreme Court judge in England and Wales (Lady Black was appointed in 2010).

What are the key findings of the study in regards to women in the legal sector?

The study reports a trend in judicial professions that shows that the proportion of females decreases as the seniority of the role increases. In European supreme courts the average split is two thirds male to one third female. In private practice the study found that more men than women could gain a training place of their choosing and their first choice as a newly qualified lawyer.

Findings also show that female European lawyers are working in areas of law that have lower strata clients, are less prestigious and lower paid than those of their male counterparts, with indications that often female lawyers choose not to specialise into a particular area of law. There are also increasing numbers of female legal graduates choosing not to work in private practice, instead preferring to work in industry, non-profit sectors and the public services.

One reasoning given to these findings is that women are still prejudiced by the outdated perception that as a gender they are more emotional, easily influenced and biased, and unable to see the bigger picture.

Another reasoning the study gave is that women do not have the connections and networks available to them that male lawyers have. Coupled with assertions that promotion and appointment procedures lack transparency and that there is a dearth in commitment to diversity in firms and the culture of the profession as a whole, women can find themselves at a considerable disadvantage.

An overarching theme appears in the study that women are finding it hard to be accommodated in playing the dual role of mother and professional, with frustration in hitting what is being nicknamed as ‘the maternal wall’. It is reported that women are still facing difficulties reconciling professional and family life due to a lack of flexibility and support in work practices.

Are there any salient solutions?

The concept of using quotas has been raised as a potential solution to the imbalance of gender in the legal profession and there are examples of where the usage of quotas has been successful. For instance, there are quota systems in place for selection to the ICC (50% women in 2016) and ECHR (36% women in 2016). Both courts have strict procedural requirements, with the ICC numbers being set out in Article 36(8)(a) of the Rome Statute and Resolution ICC-A8P/3/Res.6. As a result of the ICC regulations, the proportion of women at the ICC has never fallen below 39%, and it is reported that 47% of all judicial slots have gone to women since the court was set up.

At a national level, the Belgian Constitutional Court and High Council of Justice appointment systems were amended to be on a quota basis, and the French and Dutch systems have implemented similar measures.

The CJEU looks to allow the use of quotas, albeit only on a narrowly-justifiable basis, for example, where women are underrepresented in a particular field or are otherwise disadvantaged, and the measure is proportionate. It would not be possible for there to be a system of automatic appointment; consideration would have to be given to the respective merits of all candidates before taking a positive action measure to appoint a member of the underrepresented group.

This begs the question whether a quota basis really is the fairest system or whether it is a patronising means of addressing a more deeply-ingrained issue? Would it not be fairer to enforce a strictly merit-based system that is irrespective of gender?

Indeed, the House of Lords Constitution Committee dismissed the idea of using a quota system, describing it as a ‘nuclear option’ and instead setting non-mandatory targets to be achieved within 5 years. Given that this discussion took place in 2012 it will be interesting to see whether this notion is on the table to be revisited in the near future.

Turning to private practice, the study states that there appear to be primarily two measures put in place to encourage women to progress in their careers: the ‘lean in’ approach i.e. suggesting that women change their behaviour to assimilate into the working culture; and the alternative measure that workplaces should change to accommodate women i.e. changing working practices to enable more flexibility. Unfortunately the study indicates the former perspective tends to prevail, with reports of special training being laid on for women to help them adapt to a male-dominated culture.

What steps can be taken going forward?

The European Union has introduced legislation to promote equality in the workplace and this has been ratified by all member states, with many member states putting in place additional measures to ensure that women and other underrepresented members of society are elevated from a disadvantaged position. For instance equal opportunities programmes have been put in place in England, parity policies in France and quota systems in the civil service in Germany.

However the report recommends that further measures be taken to ensure the gender balance is addressed in the legal profession going forwards. The measures take the following form:

-       impartial and transparent recruitment processes, including the establishment of independent nominating bodies with clear mandates and sufficient powers;

-       enhancement of analysis and development action plans;

-       establishment, enhancement and promotion of female legal professional networking and mentoring, including enhancing the capacity and infrastructure of networks;

-       judicial education on gender equality and engagement, particularly engaging with academic facilities; and

-       the introduction of more flexible working conditions.

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