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The LGBT Community in the Judiciary: Barriers and Issues

By Cleo Thompson, founder of The Gender Blog

Since the mid-1990s lifting of the unspoken ban on the appointment of homosexuals to the court system in England and Wales, there has been considerable change for the better. Nevertheless, the judiciary is often still perceived by the LGBT community as an unwelcoming environment and it continues to face considerable obstacles in achieving the greater diversity in its ranks to which it has publicly committed.

Earlier this month, the Law Society in London hosted the launch of a survey prepared by the Interlaw Diversity Forum (ILDF), a group established in 2008 to encourage LGBT diversity, equality and inclusion in the UK legal sector. The report, authored by Prof. Leslie J Moran of Birkbeck College and Daniel Winterfeldt, a securities lawyer at CMS Cameron McKenna, is entitled Barriers to Application for Judicial Appointment: Lesbian, Gay, Bisexual and Transgender Research and examines the key barriers to greater LGBT participation in judicial roles such as judges and court staff, as well as making recommendations in relation to the appointments process, awareness raising and judicial culture.

Recent findings

Polling undertaken by lesbian, gay and bisexual charity Stonewall found that:

  • One in four gay people think that they would be treated worse than others if they appeared before a judge for a major offence and;
  • Two in five lesbian and gay parents expect to be treated worse than heterosexuals if they appear before a family court judge.

Additionally, LGBT lawyers polled by the ILDF cited the judicial culture as being “unappealing” – suggesting that the judiciary is challenged when it comes to maintaining the confidence of the diverse society that it serves.

What can we learn from the IDLF survey?

The report’s central objective was to generate data about the experiences of a population of gay legal professionals previously not included by researchers and policy makers. The IDLF polled its members (who come from the British legal sector and represent 70 law firms and 40 corporates and institutions) and received 188 responses.

73% of the respondents identify as gay men, 22% as lesbians and the remaining as bisexual. Whilst the report’s authors acknowledge that more work needs to be done amongst a wider LGBT group, it remains the case that the data is unique and offers an invaluable insight into the perceptions and expectations of the judiciary and judicial careers.

Key findings include:

  • Overall, LGBT perceptions of judicial office are positive – 85% feel that the work would be enjoyable;
  • Lesbians are more likely than gay men to identify salary, pension provision and work/life balance as appealing aspects of judicial office;
  • Current workplace commitment to equality and diversity, salary and work/life balance are perceived as unappealing aspects of a judicial career to both women and men;
  • 70% of LGBT lawyers think that there is prejudice within the judicial selection process;
  • 50% of LGBT lawyers do not apply for judicial office because they do not think they would be appointed;
  • 70% of LGBT lawyers indicated that more openly gay lawyers would be more likely to make them apply for judicial office; and
  • More than 50% of LGBT lawyers say judges are not “selected on the basis of merit only.”

Recommendations for change

The report makes over twenty recommendations for changes and improvements to the judicial appraisal and selection process and these include:

  • Anonymous monitoring and publishing of sexual orientation data for all judicial applications for employment and appointment;
  • Collecting demographic data on the sexual orientation of “the composition of current members of the judicial family;
  • Incorporating diversity criteria, including orientation, into the selection process for all key judicial appointments;
  • Appointing “sexual diversity stakeholders”;
  • Reviewing the composition of the appointments panel in order to widen stakeholder participation;
  • The Judicial Appointments Commission engaging with LGBT groups to ensure all unfair barriers to progress are removed and;
  • The judiciary participating in the annual Stonewall workplace equality index exercise.

Conclusions

The report’s launch event concluded with an acknowledgement that much progress has been made over the last thirty years with respect to the LGBT community’s collaboration with the judiciary, but that:

“There remains much work to be done until we can say that we have a judiciary which fully reflects the society it represents. The promotion and advancement of diverse judges at the senior levels of the judiciary is one of the greatest challenges before us.”

And the last word went to the Right Honourable Lord Justice Etherton, judge of the Court of Appeal of England and Wales, who described himself as “the first openly gay judge to be appointed” – which occurred as recently as 2001 – and who spoke with passion and honesty about the progress he has seen since the “openly hostile 1980s.”

Congratulated by Ben Summerskill, CEO of Stonewall, as being a great role model within the judiciary, Sir Terence Etherton commended the report’s authors on writing a report which “reflects the changes in attitudes to the LGBT community in the legal profession” and called upon those present to apply for roles for which they were amply qualified, as:

“I’m tired of being almost the only gay judge in the village!”

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