Sexism in the law: Notes to my younger self

I am given to understand that I am a stroppy individual. I have been told this most of my adult life and, although as a self-employed barrister there are perhaps now fewer opportunities for others to voice that categorisation regularly, I anticipate that there are those who would say that it holds true.

I am, I know, a capable and confident legal professional with many years’ litigation experience across multiple jurisdictions. I have worked in legal organisations ranging from global mega-firms to minnows. I have readily held my own in all of them, and I set aside any personal angst associated with the invidious “imposter syndrome” some years ago. That has not prevented me, however, from pondering on more than one occasion the enigmatic and ever-present intertwining of those two descriptions: confident = stroppy. Similarly, I am “abrasive” rather than “authoritative.” I use these terms advisedly because the more positive “assertive” and “forceful” have largely been, in my experience, reserved for male colleagues who adopt similar levels of self-assurance. I am not, however, the main focus of this commentary.

What I wish to express is the sentiment that I am experiencing, specifically as a senior woman still practising in the New Zealand legal profession, of mortification. I am appalled but unsurprised that young women working in the law continue to suffer significant levels of misogyny, unwelcome and inappropriate sexual attention and flagrant sexism in relation to opportunity, promotion and pay equality.¹ I am ashamed that it is young female lawyers (or ex-lawyers as the case may be) who have effectively been made to speak up and initiate a public protest as to what is or is not acceptable in our professional working environment.

In advance of writing this article, I spoke to a number of personal and professional mentors. Predominantly the advice was to stay quiet and “do your best to effect change from within.” I am, of course, as flawed as the next person and cannot claim to have avoided all ill-advised decisions or poor behaviour choices. But if faultlessness were a prerequisite to the right to express an opinion, the world would be a very silent place. Legal mentors, in particular, sought to reassure themselves that I was under no illusion as to the potential impact that a critical public statement could have on my ability to practice in a market where the power base for all practical purposes continues to be dominated by men. Risk management; lawyers cannot help but urge caution.

However, I have been “in the system” for nearly 25 years. For most of that time, I have been a frightfully good sport about the sexism that I experienced or observed, either ignoring it or learning to work around or with the obstacles that regularly came across my path. From client entertainment budgets for strippers to firm-wide down-tools for Sky Sports events (but no other interest); from corporate MCs who were rapturously received when they described New Zealand women as “champion shaggers” to a legal speaker who reduced the recent and disturbing sexual harassment of a junior to a cheap punchline; from young women who had to ask human resources to stop male partners from deliberately keeping them late in an empty office to having fellow counsel in a court list enquire about my oral sex life; from male employers who can only relate to men to standing jokes about partner management of the hierarchy of their mistresses; from networking conversations which die a brutal death at the mere arrival of a woman to judges who accord priority to the files of senior men but do not extend the same courtesy to senior women, the list of what I have experienced, seen and heard goes on and on and it gets much darker. There has been leering, groping, propositioning, and lambasting for “being a spoilsport.” I have lost count of the number of times I have seen male partners or senior staff pursue dalliances with young female employees (both professional and support staff) with the result that – in my guesstimate – around 80% of cases the woman departs the workplace or is made to relocate internally.

As women, we are conditioned from as young as 13 or 14 years of age to rapidly assess the tone and content of sexually-laden conversation to determine if it can be diplomatically shut down or there is a risk of the scene turning nasty and becoming castigatory or unsafe. In case it is unclear, we are called upon to employ this skill with ludicrous regularity. You might sensibly conclude that I have reached a stage in life where such conduct rarely comes my way. However, when the recently issued NZLS Legal Workplace survey queried whether I had suffered sexual harassment from a fellow legal professional within the previous two weeks, I could check the box. Another ongoing joy is that of condescension. In the past couple of years, on two separate occasions, senior male lawyers have instructed me to “calm down” when I dared respond in kind to their raised voices and repeated interruptions during telephone conversations (one a QC whom I am supposed to respect as a role model of the profession).

Enough. Playing the game did not break the social constructs that continue to foster irrational gender discrimination in the legal sector, patience did little to advance my legal career in comparison to less-talented male peers, and hard-working persistence certainly did not gain me equal pay. Most importantly, it has done nothing to protect or promote the interests of the young women who follow after me.

So, fortunately, or unfortunately depending on your perspective, I am now too angry to stay silent, notwithstanding that there may be adverse consequences of speaking out. I am not “‘disappointed,” I am justifiably furious. Specifically, if I hear the phrase “we are completely committed to change but it is complicated, and it takes time” ² spoken or written once more in relation to achieving equality in the New Zealand legal profession, my head may explode. To any young female lawyer reading this, I understand that it is not my place to provide you with unsolicited career advice. Instead, I make this observation: this is exactly what they said to us as we exited law school 20 plus years ago. That “cultural change was slow,” but it was “definitely coming” and ”by the time we got there” – meaning of an age and stage to hold senior positions in the legal profession – it would all look very different and, well, equal.

It is not equal. Nothing about the profession is equal. Progress is glacial and, although discrete examples are thrust at us as legal organisations strive to out-market each other with virtue-signalling, it is not equality. I urge women lawyers to think long and hard about any suggestion to the contrary. When major firms – self-described leaders of the New Zealand legal fraternity – can tout aspirational goals such as possibly achieving female partner representation somewhere around 30% by 2025, or invite us to applaud a policy which asks only for “reasonable endeavours” to increase briefings with women as lead counsel to 30%, we must stop and recognise that there is a material disconnect between placatory rhetoric and practical action. I can put it another, possibly more relatable, way: if those running legal organisations in this country solved client problems at the rate at which they have assessed and addressed gender inequality, they would be out-of-work indigents. I am not aware that there are too many of those in the rare air at the top of legal hierarchies.

I can almost hear the apoplectic rage of readers as I type; I am over-simplifying the problem, I do not appreciate its many, many complexities, I do not understand what it is like to manage the thorny retention issues that rear their heads doggedly, I fail to understand just how much resource has been poured into programs to try to do better, and, given that it is a society-wide problem, why do I imagine that lawyers should be able to find the answers?

Let me be clear: I estimate that I could trawl 70% of legal websites in this country and find reference to each organisation’s or individual’s “specialist ability” to deal with complex matters. As lawyers, we pride ourselves on our ability to process information quickly, to analyse all facets of difficult and byzantine challenges, to strategise change while managing exposure, and to devise innovative and effective solutions. Seemingly, however, these skills are unable to be harnessed to drive real change for the cultural, economic and ethical well-being of our profession and the society we serve.

Or is it a question of unwillingness? Had I been asked that at 25 years of age, I would have confidently rejected such a premise. As I edge toward my half-century, faced with manifest and ongoing ineffectuality, I do not feel nearly so certain. Power is a singular beast and seemingly tremendously difficult to share. The readiness of the legal profession to advance mediocre men while simultaneously telling women that they need to be Utterly Extraordinary to begin to warrant consideration for a position of power is overtly offensive. The entrenched reluctance to truly change the status quo brings with it invisible, but ubiquitous, myths and biases which strangle the aspirations of even the most robust women.

It is not as complicated as it is made out to be. It is about respect for people who are equal. Respect not just women’s bodies but their minds, their work, and their views. For those men who whimper about the perils of not knowing how to conduct themselves in the Me Too age, and fear the potential impact of the wrong word or action on their careers, I say welcome to the chronic vulnerability of a woman’s world (although at least your physical safety is unlikely to be compromised).³ Rather than engaging in cogent attitudinal change, current ingenious solutions include measures such as a puerile ban on alcohol at work functions and/or male and female partner chaperones until the very end of social events. Welcome to the 2018 Legal Blue Light Disco. Alternatively, here is a brief but startlingly comprehensive tip: if you would not want your mother, your wife, your girlfriend, your sister or your daughter to suffer such treatment (be it objectification, harassment or discrimination), DO NOT DO IT.

Lawyers spend their entire careers selling judgment to clients as their particular and superior skill set. If men are so woefully inept at judging boundaries on how to behave appropriately in the workplace or quasi-social settings, or determining how to eradicate bad or discriminatory behaviour promptly, how can it be that they remain so firmly in command of a profession which serves society by exercising excellent judgment?

I am, at last, calling it out. I would not wish the talented young legal women that I have the privilege to know to find themselves in the same place twenty years from now. We have been here before. From the groundswell of education about sexual harassment in the 1980s, to the fallout from the Anita Hill/Clarence Thomas US Senate Judiciary Committee testimonies in the mid-1990s, and up to the current Me Too movement; promises that it will be different are just words. Monumental, seismic, permeating change is needed right now. My note to my younger self is simple: transformative change is action-based – have faith in results, not declarations of intent; notice the inequalities, do not accept them or ignore them; demand better – find your voice and speak out, loudly. In the words of Millicent Fawcett, “Courage calls to courage everywhere.”

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1 If you have any difficulty believing the extent of the problem, please take a look at https://www.zoelawton.com/metoo-blog.html. The blog was open for only one month for comments. Another informative site is the https://everydaysexism.com/ project.

2 This sentiment is expressed at length in Dame Margaret Bazley’s 93-page report as commissioned by Russell McVeagh in 2018 although I do not mean to suggest in any way that that firm or the report writer have a monopoly on the phrase. It is far too endemic for that.

3 If you want to learn something about the vulnerability of difference, I strongly encourage you to spend an hour watching Hannah Gadsby’s “Nanette,” available on Netflix.

Cathy Murphy is a commercial litigation barrister. She obtained her LLM from the University of Cambridge and has practised in London, Sydney and New Zealand.