Three years ago, an article appeared in the January edition of Counsel entitled ‘Being LGBT+ at the Bar’. Authored by Professor Steven Vaughan and Marc Mason, it set out the findings of their study published in September 2017, Sexuality at the Bar: An Empirical Exploration into the Experiences of the LGBT+ Barristers in England and Wales. Their paper made for hard reading, not least because it shone a belated light on the prevalence with which LGBTQ+ practitioners experience prejudice within the profession. This article seeks to take stock of the changes made across the Bar in the past few years. The conclusions are mixed, with the general trend in a happy direction notwithstanding a lack of cohesive initiatives from the central bodies.

Is the Bar LGBTQ+ diverse?

In their preface, Vaughan and Mason observed that ‘the Bar does not reflect the society it serves’. While demonstrably true in the context of gender and race, it has been unclear to what extent the Bar is representative of the general population in the context of LGBTQ+ membership. This quandary arose principally from a lack of data collection, an area much improved since 2017.

Following a consultation in April 2018, the Bar Standards Board (BSB) revoked rule C100.3s(i) of the Handbook. That rule prevented publication of chambers’ diversity data on sexual orientation where the consent of every member of chambers (regardless of orientation) was not obtained. In practice, it seems this resulted in few chambers gathering the information at all, with bizarre consequences: as of 2015, for example, official statistics indicated there were no lesbians at the Bar. Removal of rule C100.3s(i) has led to more (and more accurate) reporting, in conjunction with current efforts to collect data from practitioners at the point they renew their practice certificates online.

Since the Vaughan-Mason research, the Bar has increased from around 16,000 to 17,432 members (Diversity at the Bar 2020, BSB January 2021). The most recent estimates from the Office for National Statistics (ONS) indicate that, as of 2018, some 2.9% of the UK population identifies as LGB or ‘other’, equivalent to 506 members of the Bar. In fact, a total of 631 practitioners in 2020 identified themselves as bisexual, gay or ‘other’, an increase from 560 in 2019, equating to 3.22% of the Bar in 2019 and 3.62% in 2020. Any optimism that LGB members might be overrepresented, however, should be hesitant; such analysis does not (for example) account for regional variation, with 2.8% of Londoners identifying as LGB as against 1.8% in the North East. Nor is there clear evidence on intersectional representation.

Of total practitioners in both 2019 and 2020, around 0.2% confirmed they had a different gender to that assigned at birth (32 individuals in 2019 and 36 in 2020). In both years, no pupil identified as such. The ONS does not publish data on trans identity although Stonewall’s website suggests (tentatively) that ‘around 1 per cent of the population might identify as trans, including people who identify as non-binary’. In that context, trans and non-binary individuals would appear underrepresented at the Bar to a significant degree, although such analysis is of limited utility where the 1% figure has a large window for error and the Bar’s own data gives no breakdown beyond answering ‘no’ to the ‘different gender’ question.

Homophobia and transphobia: LGBTQ+ experiences

Representation within the profession itself cannot be considered a factor of success absent understanding of the experience of the individuals and the extent of their visibility. One facet of sexual orientation as a protected characteristic is that it is not ‘visible’ in any physiognomic sense unlike (say) gender or ethnicity. That 631 practitioners in 2020 felt sufficiently confident to identity as LGB within an anonymised setting should not be equated with their being ‘out’ at work; 40% of those who responded to Vaughan and Mason indicated they had lied about their sexuality at work while 58% reported having ‘actively concealed’ it. The BSB has identified a reticence when answering questions concerning gender identity and sexual orientation; of those providing data as of January 2021, response rates were just 39.1% and 50.3% respectively (in contrast, the response rate for gender is over 99% and ethnicity 94.2%).

The LGB experience that emerged from the Vaughan-Mason research was troubling: over half those surveyed reported some form of discrimination at work arising from their sexuality, with 26.5% having faced discrimination ‘sometimes’, ‘often’ or ‘frequently’. That is against 19% of LGB individuals in the general population (per Stonewall). None of those surveyed identified as being trans, although transphobic language was reported within interviews; one barrister recalled a colleague describing a trans judge as ‘it’.

Empirical evidence in this area was largely non-existent prior to the Vaughan-Mason study. The only work around LGBTQ+ issues included in the BSB’s Equality Strategy for 2017-2019 appears to have been an intention to ‘conduct research with the profession to develop an evidence base that informs strategies to reduce discrimination and increase positive action in the profession’; that work was never actioned due to concerns it would replicate aspects of the Bar Council’s ‘Working Lives’ project in 2017. The ‘Working Lives’ report on harassment, bullying and discrimination was published in January 2018 and identified an upward trend in reports of bullying. Of the 4,092 members who responded to the Bar Council’s survey, 6% identified as being LGB and 5% reported experiencing or witnessing harassment, bullying or discrimination as a result of sexual orientation. The data contained in that report, however, was not broken down further such that it captured a snapshot rather than sufficient empirical evidence upon which to base a targeted approach to homophobia in the profession.

The BSB’s Equality Objectives for 2020-2022 show a more focused approach, the first step of which was the commission of a YouGov qualitative study. The study itself involved just 30 barristers along with five ‘non-barristers’ (including clerks), with those interviews then used to evidence findings across the spectrum of protected characteristics. As the report itself acknowledges, its conclusions ‘cannot be generalised to the profession as a whole, given the small, targeted sample’. Despite three years having passed since the ‘Working Lives’ survey, the same themes echo with depressing familiarity: that ‘the culture of the Bar is one that is of bullying’, with members still reluctant to report it. The perception that the profession retains a toleration for bullying (raised by Vaughan and Mason) was also repeated. On sexual orientation, those interviewed gave examples of social exclusion, including a member of one chambers being told he could not bring his same-sex partner to a party. As an empirical base upon which to form a policy concerning homo- and transphobia, however, the pool seems too small; indeed, the YouGov report includes no reference to transphobia at all.

A lack of centralised initiatives appears to have left a gap to be filled ad hoc by other groups. There is presently an initiative on the Northern Circuit to survey the experiences of members (including on sexual orientation) while the Inner Temple is conducting its own internal survey. There is plainly room for increased leadership here and there remains no targeted, cohesive approach from the Bar Council and the BSB to tackle LGBTQ+ discrimination; while there has been significant work around improving wellbeing, complaints and social mobility generally, it cannot be assumed tackling discrimination in one arena addresses it another. It is noted, however, that the BSB’s report on bullying and harassment is due in March 2021 while the Bar Council is understood to be working on a statement for trans inclusivity.

Have any measurable differences taken place since 2017? Not if the YouGov study is anything to go by. Yet, perhaps some change can be glimpsed: although the number of pupils fell between 2019 and 2020 from 385 to 354, the number identifying as LGB or ‘other’ rose from 15 to 26. Such a trend may well be influenced by those groups working to increase LGBTQ+ visibility at the Bar.

Visibility: projects and initiatives

The Inns came in for particular criticism in the Vaughan-Mason research, with a widespread perception they were ‘not doing enough to signal their support for LGBT+ members’. With hindsight, that criticism now seems well-founded: it is notable that the launch of FreeBar in 2015 was held at a solicitors’ firm when (it is said) no Inn would host. Happily, all four Inns are taking steps to address the deficiencies highlighted, if to varying extents. In 2019, Gray’s Inn established their LGBT+ Society, shortly followed by the Middle Temple’s LGBTQ+ Forum. Inner and Lincoln’s Inn have brought LGBTQ+ issues under the remit of their diversity standing committees, with Lincoln’s extending the scope of its Women’s Forum to become the Diversity and Inclusivity Forum.

Since 2017, LGBTQ+ visibility within the Inns has certainly improved. Along with an over-subscribed residential weekend at Cumberland Lodge focusing on trans rights, Inner claims to be the first Inn to ever fly the rainbow flag for Pride, with the other Inns in hot pursuit. Gray’s has organised several successful events, most notably a panel discussion on LGBT+ representation in the judiciary featuring the Master of the Rolls. Middle has now held two ‘Taking Pride’ panel discussions in which members from junior to silk discuss their experiences of being LGBTQ+ at Bar; in July 2020, the event was held by Zoom with over 120 attendees. Meanwhile, Lincoln’s has dedicated one of its annual qualifying sessions to the topic of diversity; of all the Inns’ websites, however, Lincoln’s is the only one for which the search term ‘LGBT’ returns an answer of ‘no results found’.

Beyond the Inns, FreeBar launched its Charter in November 2020, an ambitious project encouraging all proposed signatories to satisfy themselves of 11 commitments in return for an annual charter mark, with a particular focus on gender-neutral policies. At the time of writing in February, three chambers are about to receive the charter mark with another six close behind.

We are all stakeholders in this profession

The work of Vaughan and Mason has had a catalytic impact, most notably for the Inns. The visibility of LGBTQ+ membership in the profession has never been higher but there is work yet to be done, not least where reports continue of homophobia and transphobia. There is also room for leadership, particularly where queer voices do not speak as one; the 2019 schism within Stonewall and the establishment of the LGB Alliance involved members of the Bar in a very public way. News that the Bar Council is developing a ‘trans inclusion’ statement, then, is very welcome though there remains no targeted project from the Bar Council or the BSB to address homophobia. While FreeBar and its Charter may have the support of those bodies, LGBT groups should not be left to do the heavy-lifting; we are all stakeholders in this profession and the issues that face the LGBTQ+ Bar require solutions from everyone, queer and Allies alike.