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LGBT and the law: where do we go from here?

Written by: Becky Waller-Davies
Published on: 27 Feb 2015

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    It is tempting to believe that the prejudice and problems experienced by gay people have now largely been consigned to the history books: an ugly issue which no modern professional would ever have to deal with. That’s wishful thinking however, and the reasons for it are more complex than straightforward homophobia.

    Anyone looking for proof that gay men and women still encounter problems because of their sexuality need not look any further back than eight years, when BP chief executive Lord Browne was outed in a Daily Mail kiss-and-tell story and sought to cover up his private life by committing perjury. He subsequently resigned, his ordeal stemming from a lifetime lived in the closet, fearful that to come out would spell the end for him.

    Despite the high profile resignation, no such doom awaited him. In a letter to the Financial Times four days afterwards, scores of high-powered City colleagues added their signatures to a statement which read: “Sir, We wish to place on public record our support now and in the future for our friend John Browne and to thank him for his immense and unique contribution to business, the economy and to art, culture and the environment. We wish him well, stand by him and look forward to working with him in the years ahead.”

    Still, in a 2014 interview with The Guardian, Browne admitted that although the majority of people he comes into contact with take no issue with his sexuality, he has encountered, ‘“tight smiles from businesspeople who clearly “want to avoid me”.’

    The City is often portrayed as more traditional than many sectors of society - do its views on sexuality conform to that model too?

    Visibility and role models
    Sexuality, unlike race or gender, can remain undetected. It’s the invisible minority, which, unless somebody elects to share it, can remain so. This means that there is often a chilling effect around the issue, with many workers in all industries uncomfortable about ‘disclosing’ their sexuality at work.

    Senior LGBT lawyers believe that that’s the wrong approach. “You don’t need to be shouting from a soapbox about gay rights these days,” says The Guardian’s legal director Gill Philips. “What you need to be is quietly visible. You just have to be there. Across the board, whether it’s barristers, solicitors or the judiciary - people are still very quiet about it. And I think that’s a shame.”

    But the tension between wanting to be open about an incredibly important facet of life and being unsure how to broach the subject as a professional still exists, in almost every profession.

    Philips says that although she respects people’s private lives and is “not for a moment suggesting people walk around their offices in rainbow-coloured shirts”, it is the small gestures that count.

    “If people go to law firms’ dinners, are they bringing their partners or not?’, she asks. “Because they should be doing so. Otherwise things remain in the closet. For younger people, visibility and availability are key.

    “The more commonplace it becomes, the more acceptable it becomes, the less curious it becomes, the less different it becomes. I think we have moved on from the shout-y phase and we need to be more focused on role models.”

    Being a role model means taking on a certain amount of responsibility, whether it’s welcome or not. After all, as Pinsent Masons’ legal director Bridget Fleetwood points out, “If you are gay and senior you just become a role model, you don’t choose to be one.”

    Junior vs senior
    Of course, being a role model is all very well when you’ve reached a senior position, but the picture at the more junior end of the profession is very different. Law firms, even those who boast of a non-hierarchical culture, are still stratified, in a way that other companies are not. This makes it easier to see how diverse - or uniform - a partnership is.

    Cleary Gottlieb Steen & Hamilton associate Sui-Jim Ho trained at Clifford Chance. While he never hid his sexuality at work he was never quite sure how to broach the topic.

    “As a young lawyer I did not really know how to behave, but now that I’m more senior I realise that it is important to be out and visible and be a role model for other people,” he says. “I have been on some of the highest-profile cases the firm has had. I was one of the lead associates on the Greek debt refinancing, for example.

    “I am not a partner yet but it sends a message that you can be successful and that your sexuality isn’t an issue. I feel very supported. When I had my civil partnership the firm treated me as it would anyone else who got married; they gave me a bottle of champagne.”

    Ho acknowledges that he is lucky. “I am conscious that it is not the case for a lot of people elsewhere,” he says. “I want to be visible so that people can talk to me if they have problems. I know friends working in the City who are fearful of coming out and other friends who have come out and have had bad experiences.”

    Fleetwood, for one, has experienced negative attitudes around homosexuality.

    “I have first hand experience of clients making homophobic comments,” she says. “I don’t know whether they knew I was gay or not but I had not told them and I felt it would be difficult to challenge it without damaging the client relationship.

    “But I wouldn’t want to emphasise it too much,” she adds. ”It’s only happened once or twice and I’ve been a lawyer for around 18 years. People are usually more accepting than we anticipate they will be - or they are gay themselves.”

    Parliament’s 2013 approval of the divisive gay marriage bill shows how far the law has progressed in protecting gay citizens’ rights. Although plenty opposed the bill, a Conservative-led government stood firm.

    Just ten years before that, same-sex parents did not even have the same right to parental leave as straight couples. When Fleetwood became a mother she had to take annual leave to be able to be at home during the first few weeks of her firstborn child’s life.

    “It sounds small but it is a bit of a statement,” she says. “It feels like you’re not a real parent, that your relationship is not real.”

    Lesbians arguably have it harder than gay men when it comes to the workplace. Female partners at top firms are already hard to come by (they make up an average 15 per cent at most firms) and so there are simply fewer lesbians than gay men at firms.

    Gay legal network InterLaw commissioned a study in 2012 which found that “the more an individual diverges from the elite-educated, white, male norm the less well-paid and the less satisfied they will be with their career progress.”

    As Philips says, “Heaven help you if you’re a black lesbian. You have to be really brave.”

    I couldn’t find a black lesbian partner at a major firm when writing this article. In fact, I found very few lesbian partners in general, even when looking through speaker lists at LGBT events. Although Fieldfisher managing partner Michael Chissick is openly gay, it’s hard to imagine a lesbian managing a major firm in the next decade.

    “Private practice firms are a rather dated monoculture,” comments Fleetwood. “They don’t reflect the outside world yet, for lots of reasons. That is a complex issue and a lot would need to change. Until we start seeing women, let alone gay women, at the top then you start to doubt that it can change.”

    “The challenge now is on senior leadership,” confirms CMS Cameron McKenna head of capital markets and InterLaw founder Daniel Winterfeldt. “Having more openly gay law firm leaders. The two big next things are really about senior leadership, and helping LGBT people to progress to that level.

    Senior leadership engagement is one part of the equation, but everybody with a stake in a firm needs to engage with LGBT initiatives to ensure they are effective.

    That’s where straight allies come in. Many firms now invite their heterosexual members of staff to become straight allies, making the LGBT issue an equality issue that matters across the firm and lessening the chance of minority groups turning into isolated silos.

    “InterLaw had a lot of straight allies from the very beginning,” says Winterfeldt. “We are only a certain proportion of the population - 10 per cent. You are by definition a minority group and you have to engage other people. It is an issue for everyone.

    “Engaging everyone around equality is important but it is also important to be realistic - who are the people in power right now?”

    “They are white, straight, elite-educated men,” he continues. “And you know what? Most of them are pro-equality and want to help. They are the ones who can bring about change. You need to be working with everyone. It can be much more powerful when somebody who does not have a vested interest stands up and says it’s important.”

    Changes in equality law, straight allies and senior gay role models will all play important parts in what Ho terms “a paradigm shift”. “That comes with time,” he says. “You cannot force a revolution.”

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