SUMPTION ENCAPSULATES THE LAW’S SEXISM: ONLY QUOTAS CAN CHALLENGE MALE PRIVILEGE
If the supreme court judge thinks women are opting to shun senior judicial posts, he doesn’t understand power
Institutional sexism in the legal profession is under scrutiny again following remarks about gender equality in the judiciary by one of the country’s most senior judges. Jonathan Sumption’s views exemplify perfectly what is wrong with the way women in the legal profession are viewed by those in the highest echelons of power.
Not only did the supreme court judge forecast in an interview that it would take 50 years to achieve gender equality in the judiciary, he cautioned against doing anything that might make male candidates feel “the cards are stacked against them”. Wouldn’t it be awful if men enjoying the privilege of an imbalance of power felt this privilege threatened? No, the remedy, according to Sumption, is that women lawyers should just be “patient” and wait another half a century for promotion.
Let me be clear: Sumption’s concern is not about finding “good enough” women candidates to be QCs and occupy top judicial posts. His comments encapsulate his deepest fears that power vested in the old boys’ network could come under siege.
Sumption attributed the under-representation of women in the senior ranks of the judiciary to a “lifestyle choice” by women unwilling to tolerate long hours and poor working conditions. That traditional old boys’ networks are part of the reason for lack of women’s progress to the ranks of Queen’s Counsel and the bench he could not even contemplate. “It’s rubbish,” he said. It must be pure luck that after securing pupillage (barrister traineeship) through his father, Sumption just happened to be the best candidate for the supreme court.
The empirical evidence demonstrates that the rate at which women leave the profession is staggeringly high. This leaves men holding the balance of legal power. Statistics from a recent Bar Council report – Snapshot: The Experience of Self-Employed Women at the Bar – show that while 50% of people called to the bar are women, only 12% are QCs and 24% are judges; and just one of 12 supreme court justices is a woman. But Sumption failed to identify one of the prime causal factors: institutional sexism.
Over the past fortnight lawyers from around the world have contacted me to share their experiences of sexism. One woman told me that after negotiating a multimillion-pound deal, she was told by her boss that it is unbelievable what “a good bottom” can achieve. In a similar vein, the sexism suffered by women barristers and judges was detailed in the Bar Council report. This included pushing female lawyers into “women’s work” such as family law; an absence of support for lawyers who want to balance career and caring responsibilities; and comments about their physical appearance.
One woman judge was quoted in the report as stating that a male member of the judiciary “made an inappropriate comment about my clothing and touched me a couple of times which I felt was unnecessary and over-familiar”. But instead of condemning such behaviour as sexist, the Bar Council chairman described it as “banter”. This failure to acknowledge the nature of sexism in the legal profession acts to cement and seal women’s subordinate position in the law.
Meaningful change will only occur when lawyers confront the living reality of sexism. But the truth is that female lawyers are rarely in a position to challenge it without fear of backlash and recrimination. While a few lawyers have not held back in taking Sumption to task for his comments, it’s no surprise that he has not experienced a backlash for his comments. His face isn’t plastered across the tabloids, nor is he accused of hating women, and it is doubtful he has received death threats. The irony is that only when people challenge the status quo does a backlash ensue.
Recognising and challenging institutional sexism needs to be combined with a genuine commitment to equal representation. Incrementalism has failed. We need the introduction of quotas for silks and the judiciary. Sumption, however, is worried that a rush for equal representation at the top of the profession could destroy the judiciary and have “appalling consequences for the quality of justice”. Just imagine how devastating it would be for public justice to have women fairly represented in the profession.
Despite Sumption’s claim that the bar is “meritocratic”, men who are white, upper and middle class, and heterosexual have always enjoyed a privileged status in the profession – and continue to do so. Either they possess a superior intellect and work ethic, or their tenacious grip on power is due to a system that perpetuates inequality and discrimination.
As long as women are reliant for promotion on a system infused by sexism, they will continue to wait generations to be fairly represented in the legal profession. In the meantime, the justice system is suffering because women remain disempowered and distanced from shaping laws that have a direct impact on their lives. In an effective democracy we need lawyers and judges who meaningfully reflect the public – rather than a narrow and privileged group disproportionately skewed to one gender. The current imbalance is not good for justice, for the public, or for our civil society. It has to change.