This opinion was originally published in the Herald Sun Briefed: The Law Blog on 8 May 2012.
“We stand at the beginning of a new epoch in the history of humankind’s thought, as we recognise that sex is irrelevant to thought, that gender is a social construct and that woman, like man, makes and defines history.” Gerda Lerner, The Creation of Feminist Consciousness
Despite the inspirational quote above, the reality is that covert forms of discrimination still exist in the legal profession. In the twenty first century, so much has been achieved for the status of women in the world, yet some inequalities still linger.
The Australian legal profession is reflective of the need to achieve better parity between male and female legal practitioners. The statistics for Australia are indicative of the lack of equality in some areas.
A Gender Appearance Survey (hosted by the Law Council of Australia) conducted in 2009 signalled a marked disparity of gender appearance in Australia’s superior courts. The barristers in the survey reflected the same gender proportion as they existed in the Bar population 81 per cent male, 19 per cent female.
One of the key findings of the survey revealed that when appearing in matters resulting from briefings by private law firms, appearances by male barristers were significantly higher. Conversely, the appearance of female barristers were lower than expected based on the proportions that they exist in the Bar population, 86 per cent male, 14 per cent female. Further, the appearance time for male barristers was markedly longer than their female counterparts on average, males 3.8 hrs, females 2.8 hrs.
In the upper echelons of the legal profession there is a noticeable absence of women. Since 1993 more than 50 per cent of Australian law graduates have been female, however, females account for less than 20 per cent of partners in law firms. The disparity does not end there.
Women are under-represented at the Bar, the bench and in senior legal positions. Females account for only 6 per cent of silks at the Australian Bar.
The Law Council of Australia Model Policy found that female barristers do not progress in the same lineal manner in which their male counterparts do. The main reason provided for this outcome is discriminatory briefing practices by firms, which has an adverse effect on retention and progression of female barristers.
The under-representation of women in the senior legal positions, at the Bar and as partners in law firms may also be due to the fact that many women take a break from their legal careers, ranging from a few months to several years.
The grounds for leave often include the desire to start a family. During time away from the profession many changes occur, including developments in the law, technology and losing contact with professional networks.
Re-entering the profession may become a daunting prospect. Although there are efforts by professional legal bodies such as the Law Institute of Victoria to support women returning to work, it is imperative that employers support such efforts.
Policies providing flexible work arrangements for women could enable employers to retain valuable staff with a view to returning to work at a later date.
In turn, women are likely to remain loyal to employers who support them to pursue their personal goals. For large scale employers, other practices such as providing child care services should be considered for the benefit of retaining female lawyers.
There is also a need for bodies that represent the legal profession to collate data on various aspects of gender disparity, including differences in salary rates between men and women, and the reasons for lack of female lawyer retention particularly after 5 years of professional experience.
Lawyers are generally aware of the disparities and initiatives have been taken to rectify them. For instance, the Law Council of Australia created a Model Equal Opportunity Briefing Policy for Female Barristers and Advocates, however, unless widespread adoption by private law firms occurs, the success of such measures will be limited.
There is also a role for professional organisations to promote programs, including provision of female mentors and role models.
There must be a joint commitment by all to realise change and improve the situation of female lawyers in the legal profession worldwide.
A gender diverse legal profession will strengthen our standards of social justice and equal opportunity and serve as a benchmark for other professions.
Ozlem Susler graduated from the University of Melbourne and continued with post graduate studies at La Trobe University. She lectures in law at La Trobe University and is completing her doctoral dissertation in International Commercial Arbitration. Her research interests include commercial arbitration law, constitutional law and public law.