Language bias at the Bar

A rose by any other name? Language matters not only when giving references but in all aspects of our work as lawyers, writes Rachel Barrett: recognising unconscious bias and the importance of gender-fair word choices

A recent study analysed descriptors used in football commentary in four European leagues over the 2019/2020 season for ‘players with lighter skin tone’ or ‘players with darker skin tone’. It found that players with a darker skin tone were far more likely to be praised for their speed and strength, whereas praise for players with a lighter skin tone tended to reference qualities such as intelligence, versatility, and leadership.

The author posits this difference taps into a pervasive underlying stereotype of black people as naturally athletic; ‘brawn versus brains’ (Danny McLoughlin, ‘Racial Bias in Football Commentary’, RunRepeat.com, 21 July 2020). PFA Equalities Executive, Jason Lee, noted that: ‘To address the real impact of structural racism, we have to acknowledge and address racial biasCommentators help shape the perception we hold of each player, deepening any racial bias already held by the viewer.’

What has that got to do with lawyers?

The nuances of language matter at least as much in law as in football. Earlier this year I wrote a piece (‘Is a pandemic the right time to be thinking about diversity issues at the Bar?’, Counsel, June 2020) which briefly touched on the use of gendered language in legal directories. A review undertaken by Allen & Overy of London Bar rankings had revealed a tendency to describe female barristers with words such as ‘pleasant’ and ‘sensible’, while male barristers are ‘heavyweight’ and ‘authoritative’. Of all the issues discussed in the article, this seemed to strike a chord. I have received rueful and exasperated feedback from colleagues and others keen to share examples.

The problem is not so much the attributes described – it is a good thing for a lawyer to be pleasant and sensible whatever their gender – but the affirmation of broader underlying stereotypes about men and women in the workplace. Just as for footballers, these commentaries shape the perception we have of individual lawyers and can deepen existing biases. Authors of an extensive literature review on language bias have found that ‘language subtly reproduces the societal asymmetries of status and power… which are attached to the corresponding social roles’ such that women tend to be ascribed ‘communal/warmth traits’ and men ‘agentic/competence traits’ (‘Gender Bias and Sexism in Language’, Michela Menegatti and Monica Rubini, Oxford Research Encyclopaedia: Communication, September 2017).

The problem was well summarised by Lady Arden when in the Court of Appeal, in the case of Hobson v London Borough of Hackney [2002] EWCA Civ 1237 at §60:

‘Stereotypical language is one facet of the exhibition of gender bias... A person who uses stereotypical language about a woman may well trivialise her achievements and talents and underestimate her ability. Many women are as effective in their posts as any male equivalent. However, their credibility is a problem if they are undermined by discriminatory behaviour against them. Thus, it is important in my judgment to treat subconscious assumptions in language seriously.’

Language bias in the Legal Directories

Gender is not the only characteristic which can affect the way lawyers are described and perceived. Dee Sekar, Diversity & Inclusion Director at Chambers and Partners, whose work encompasses their international library of directories, is alert to the use of racialised language – which can present differently in different regions – as well as stereotypical language linked to the sexuality of LGBTQ+ lawyers. She told me that following company-wide internal training, her organisation is taking a collaborative approach with firms and chambers to raise awareness of these issues. In relation to language bias, researchers are trained to ask follow-up questions where generic descriptors are used. For example, if an interviewee described a female barrister as ‘polite’ or ‘personable’ they would be asked to give more feedback on her technical competencies. Firms and chambers are also asked to provide a more diverse range of client references.

The Legal 500 has this year introduced a specific request in referee emails that referees not use gendered adjectives when describing the qualities of members of the Bar. Editor John van der Luit-Drummond championed this measure after being alerted to the issue by COMBAR. He reviewed a sample of ranking entries and found that indeed women were more often described as ‘conscientious’, ‘well organised’, ‘easy to work with’, and ‘nice’ while men were labelled a ‘phenomenal advocate’, a ‘genius cross-examiner’, with an ‘outstanding intellect’ and ‘frighteningly clever’ (see his blog, ‘Lawyers: beware unconscious bias when acting as a referee’, LinkedIn, 31 May 2018). Although he does not anticipate this will be a quick fix, he has noted that there has been a change in the nature of the responses by referees. There have been fewer references this year praising female lawyers as ‘feisty’ or comparing them to pit-bulls and terriers!

Gender-neutral or ‘gender-fair’ drafting

Language matters not only when giving references but in all aspects of our work as lawyers. The issue of gender-neutral or ‘gender-fair’ drafting has been receiving increasing attention. Gender-neutral language can be summarised as: ‘a generic term covering the use of non-sexist language, inclusive language or gender-fair language. The purpose of gender-neutral language is to avoid word choices which may be interpreted as biased, discriminatory or demeaning by implying that one sex or social gender is the norm’ (‘Gender Neutral Language’ guidelines produced by the European Parliament in 2018).

Statutory drafting has been gender neutral since 2007. The old rule that ‘the masculine includes the feminine’ was rejected on the basis that it ‘tends to reinforce historic gender stereotypes’ – despite considerable pushback (see HC Deb. vol. 750 col. 1004, 12 December 2013). (Though note the rule, contained in the Interpretation Act 1978, is still in force and used in relation to pre-2007 legislation.) The current practice is to refer neutrally to ‘a person’, ‘a child’ etc (see the OPC/GLD’s Guide to Gender Neutral Drafting, 2019). Personally, I find this approach to be clearer as well as more inclusive and accessible.

There is no reason why this approach cannot also be taken to drafting in other contexts. The NEC Contracts used in the construction industry were updated in 2017 to use gender neutral language, so that ‘the contractor’ will no longer by default be male. Addressing letters to ‘Dear [name of firm]’ rather than ‘Dear Sirs’ avoids creating an impression that the law is a business for gentlemen only, thereby excluding (and possibly annoying) female and non-binary lawyers from the very outset. An article in the Law Gazette by Melanie Newman (‘How to: use gender-neutral language’, 17 June 2019) gives a helpful update for lawyers looking for tips on this.

Similar considerations apply in advocacy as well as drafting. Addressing a mixed group of judges as ‘my lords’ (as I was taught to do in law student moots) has thankfully disappeared. As a newly qualified lawyer and judicial assistant in the Supreme Court, I occasionally saw advocates accidentally slip into this mode of address when Lady Hale was present. The obvious rudeness of the exclusionary phrase was stark enough to make me wince, in that most courteous of courts.

The words we choose to address and describe our colleagues and peers, clients, parties and witnesses, often evoke particular images and connotations. These are the colours on the palette we use to paint a picture for the judge and the jury. Sometimes we do this deliberately and sometimes unconsciously. This is not necessarily a problem; conjuring with these unspoken connotations is a skill – and for some, an art. However, we must take care to avoid using lazy stereotypes which perpetuate existing inequalities.

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Rachel Barrett

Rachel Barrett is a barrister at Cloisters specialising in employment, equality and human rights law.