Challenging gender bias

On social media recently a barrister revealed that she’d lost several cases to a male colleague because the lay client wanted to be represented by a man. The solicitor was very sorry.

In the comments beneath, some called out the discrimination. Others sympathised but seemed unsurprised.

Then it occurred, what if the client had asked to be represented by a white barrister as opposed to a non-white barrister: would the responses have differed? Arguably at least, a solicitor would have found it difficult to simply apologise - not least because of global anger aimed toward racial inequality sparked by the death of George Floyd.

So why should discrimination on gender grounds not be the same?

Under the Equality Act 2010 it is unlawful for anyone including solicitors, clients and clerks to select counsel on the grounds of sex. Guidance from the Bar Council says: “when the solicitor insists on a discriminatory allocation of work then instructions should be refused”.

So chambers should refuse the instructions from the client. Did that happen?

If the machinery in the system doesn’t work against discrimination, how can we expect lay clients not to discriminate?

And perhaps that’s at least partly the issue - that the decision to discriminate is borne out of discrimination elsewhere.

To illustrate, one comment defended the client’s right to choose. Referring to a judge whose treatment towards her barrister made the barrister so angry that she was unable to talk to her lay client outside perhaps meant that the client was hedging his bets in choosing to be represented by a man.

In court, defendants remain silent but see everything from the dock: the judge’s interactions with counsel, counsel with each other. This is worth remembering. Before we express frustration at ostensible discrimination by a lay client, it’s necessary to look behind their choice. And it’s only by doing this that we might find a few answers:

Perhaps some female barristers are on occasion treated less favourably in court; perhaps male barristers are viewed as having more gravitas; perhaps stereotypes do carry weight. It’s still only a century that women have been able to practise at the Bar - a profession in which men have dominated for 700 years.

Ultimately, combating gender discrimination demands a collective effort: from counsel and clerks to judges and solicitors. It requires challenging gender bias and consequences for those who practise it.