Gender Myths And The Legal Profession

• Author: Susan Glazebrook
• Position: Judge of the Supreme Court of New Zealand
• Pages: 171-205

171

GENDER MYTHS A ND THE LEGAL PROFESSION

S G*

is article explores the myths that continue to inhibit progress towards

gender equality in the legal profession. Having exposed myths such a s “it’s

only a matter of time”, “women choose dierent career paths” and “law is

neutral”, the article discusse s what can be done to address the disparity. e

article acknowledges t he initiatives that are taking place bot h in New Zealand

and overseas but concludes that law rms in New Zea land still have work to

do in order to harness the benets of gender diversity.

I. I –  G G

As at the latest “snapshot” of the legal profession in 2016, women make up

60 per cent of the employees in multi-lawyer rms, but only 24 per cent of the

partner s.1 Of the 113 practising Queen’s Counsel as at the latest appointment

round in June 2016, only 21 were women (23.73 per cent).2 Women in the

1 Geo Adlam “ Snapshot of the Profession 2016” (2016) [Snapshot of the Profession

2016] 883 Lawtalk at 2 3. By comparison, a censu s by the Human Rig hts Commission

in 2012 reported that 19.3 per cent of par tners in large law  rms (ten or more partners)

were women, and in smal l law rms (bet ween two to ve pa rtners) 23.7 per cent of

partners were wome n: Human Right s Commission New Zea land Census of Women’s

Participation 2012 (Wellington, November 2012) [Women’s Participation Census 2 012]

at 7475. e 2012 Snapshot of the Profession said that 42 .4 per cent of those workin g in

law rms were women: “A Snapshot of the Ne w Zealand Legal Profe ssion” [Snapshot of the

Profession 2012] (2013) 815 Lawtalk 4 at 5.

2 ere has been an i mprovement. In 2008, only 11 of the 89 prac tising Queen’s or Senior

Counsel were women, wh ich amounted to 12 perc ent: Human Rig hts Commission New

Zealand Cens us of Women’s Participation 20 08 (Wellington, 2 008) [Women’s Participation

Census 2008] at 67. A manual c alculation of the gures in 2 013 put the number of women

Queen’s Counsel at 16 out of 109, or 14.67 per cent: Susan Glazebro ok “It is just a matter of

time and other my ths” (paper presented at Get up a nd Speak 2013, Wellington, 15 August 2013).

* Judge of the Supreme Cour t of New Zealand . is paper elabora tes on a speech prepare d

for a panel discu ssion for the “Gender and the Law” cour se at the University of Canterbury

on 6 October 2016. e panel was convene d by John Caldwell a nd Annick Mas selot. It is

an update of a paper entit led “It is just a matter of time and other my ths” given at the event,

Get up and Speak 2 013, held in Wellington on 15August 2 013. A similar spee ch was given

to the New Zea land Bar Association a nd Canterbury Women’s Legal Asso ciation conference

“Obstacles and O pportunities” held in Chri stchurch on 22 November 2013. ese issues ar e

also discu ssed in three other pap ers I have written on simila r subjects: “Looking  rough the

Glass: Gender Ine quality at the Senior Level s of NewZealand’s Lega l Profession”; “Gender

Inequality i n the Workforce: A Work in Progress”; and “Women in the Public S ector – a

question of equal ity”. All of these pape rs are available at < www.court sofnz.govt .nz>. I am

grateful to my c lerk, JosieBeverwijk, for her inva luable assistance with t his paper.

172 Ca nterbury Law Review [Vol 22, 2016]

judiciary fare somewhat better, with the percentage of fema le judges in 2016

falling close to 32 per cent.3

Whichever way you look at them, these gures are depressing. ey are,

however, marginally better than t he percentage of female directors of the

companies listed on the New Zealand Stock Exchange. e latest annual

statistics put this g ure at 17 per cent.4 e 2012 Human Rights Comm ission

report (the “Women’s Participation Census”) said that, at the rate of progress

over the previous ten years, it would be another 35 years before boardroom

equality was achieved.5

ere are a number of organisations working on gender issues in relation

to board representation of commercial rms.6 e eorts of New Zea land

organisations may account, to a degree, for the number of women on

boards passing 10 per cent for the rst time by 2012, although the Women’s

Participation Census attributed this mostly to eorts across the Tasman.7

e Australian Stock E xchange, since 31 December 2011, has required

companies to have a gender and diversity policy and to set measurable

objectives and report on them, or to explain to shareholders why they have not

set such a policy.8 A report released in 2015 showed that 87 per cent of listed

3 is c alculation is ba sed on gures t aken from the Cou rts of New Zeal and website:

tsofnz.gov t.nz> (as of 14 September 2016). ere is even less d iversity in the

judiciary i n England and Wales, w here the number of female jud ges sits at 25.2 per cent:

2015 Judiciary Diversit y Statistics (London, 30 July 2015) .gov.uk>. As of 14

September 2016, there was only one wom an on the United King dom Supreme Court (out

of 12) and eight women in the Cou rt of Appeal of Eng land and Wales (out of 43) .

jud icia ry.g ov.uk >.

4 NZX Gender Diver sity 4th Quarte r 2015 and Annual Statistics ww.nzx.c om>. By

comparison, in 2012 the perc entage of female directors in t he top 100 companies liste d on

the NewZe aland Stock Exchange wa s 14.75 per cent – up from 9.32 per cent in 2010 and

8.65 per cent in 2008: Women’s Participation Ce nsus 2012, above n 1, at 46.

5 Women’s Participation Cen sus 2012, above n 1, at 2.

6 ese include G lobal Women ; e New Z ealand group of the

United Nations Women’s Empowerment Principles ; e 25 Percent

Group w.25percentgroup.co.nz>; and Women on Boards NZ < www.wob.org.nz>. See

Women’s Participation Census 2012, above n 1, at 4. See a lso the United Kingdom review

of female represent ation on boards: Depa rtment for Business , Innovation & Skil ls Women

on Boards (United K ingdom, 24 Februar y 2011); Department for Business, Innova tion &

Skills Women On Boards 2013: Sec ond Annual Review ( United Kingdom, 20 May 2013);

Department for Bu siness, Innovation & Ski lls Women on Boards: Five Year Summ ary (United

Kingdom, 29 Octobe r 2015); Jayne-Anne Ga dhia Empowerin g Productivity: ha rnessing the

talents of women in  nancial services (H M Treasury and Virgin Mone y, 2016). For a discussion

of female represent ation in Australi a see: Committee for Ec onomic Development of Austral ia

Women in Leadership: Understanding the Gender Gap (Melbourne, June 2013) [CEDA report];

MeredithE dwards and others Not Yet 50/50: Barrie rs to the Progress of S enior Women in the

Australian Public Service (ANZOG In stitute for Governance, A ustralian Nat ional University,

Canberra, 2 013); and Blackrock Investment Ma nagement Achievin g Gender Diversit y in

Australia: e Ugl y, the Bad and the Goo d (Blackrock Inve stment Manageme nt, Australi a,

2016).

7 Women’s Participation Cen sus 2012, above n 1, at 2 and 9.

8 ASX C orporate Governance Council Corporate Governance Principles and Recommendations

(3rded, Sydney, March 2014) at 11–13.

Gender myths and the l egal profession 173

companies had established a diversity polic y.9 In the United Kingdom, all

listed companies are required under the Listing Rules either to comply with

the provisions of the UK Corporate Governance Code or explain to investors

in their next annual report why t hey have not done so. Under the Code, listed

companies are required to include a diversity policy in their a nnual report and

to consider diversity in all appointments.10 e NewZealand Stock Exchange

has released a guida nce note on diversity and encourages issuers to adopt a

di vers ity pol icy.11

Given the initiatives with regard to commercial boa rds both in New

Zealand and oshore, the legal profession cannot aord to be complacent.

Eorts are being made. For example, the New Zealand Law Society has set

up a Women’s Advisory Panel12 aimed at considering issues and initiatives

with regard to unconscious bias training, males cha mpioning for change,

reducing the attrition of young female lawyers, gender audits and equitable

brieng policies.13

It is not just the lack of women in senior positions that is the issue. It is

clear that there are na ncial disadvantages in being female. New Zeala nd

has had legislation requiring equa l pay for the same work in the public sector

si nc e 1960 .14 In 1972 this was extended to the private sector15 and grievance s

can currently be investigated by the Employment Relations Authority.16 In

2013 a case was brought making a pay equity (equal pay for equal work)

9 ASX Education and R esearch Progr am ASX Corpor ate Governance P rinciples and

Recommendat ions on Diversity: Anal ysis of disclosures for n ancial years ended be tween 1 January

2015 and 31 December 2015 (KMPG, Australia, 2016).

10 Financial Reporti ng Council e UK Corpor ate Governance Code (L ondon, April 2016).

11 NZX Mar ket Supervision G uidance Note – Diver sity Policies and Di sclosure ( Well in gto n,

25Februa ry 2015) . If the y do adopt a diversity polic y, r 10.4.5(k) of the

NZX Main Boa rd Listing Rules re quires a statement from the Bo ard providing its evalu ation

of the company’s performa nce. In addition, r 10.4.5(j) requires a brea kdown of the gender

composition of a company’s Direc tors and Ocers and the inclusion of compa rative gures

from the previous  nancial yea r. ese gures a re collated and relea sed quarterly a nd

an nual ly.

12 Replacing the Women’s Consultative Group.

13 See also Auck land Women Lawyers’ A ssociation Women’s Care er progression in Au ckland

law rms: Views f rom the top, views fr om below (Gender & Diversity Research Gr oup, AUT

University, Auckla nd, 2014) [Views from the Top] and NewZe aland Law Society: Wo rking

towards gende r diversity in New Zealan d law rms (NZLS CE Ltd , Wellington, 2016). Eorts

are also bei ng made in law rms. For e xample, MinterEl lisonRuddWatts wa s recently

awarded a High ly Commended award in the Empowerment c ategory in the 2016 Diversity

NZ Awards for its Lea ding by Example init iative. is program me proles strong role models

for sta, law stude nts and women in the legal industr y. e initiative also aims to hi ghlight

gender-related issues i n the legal indus try and to encour age sta to spe ak at conferences ,

seminars a nd in the media.

14 Government Service E qual Pay Act 1960.

15 Equal Pay Act 1972.

16 Employment Relations Act 200 0, pt 10.