Readers will be familiar with terms like dyslexia, ADHD, and autism. Each is an example of neurodivergence, but neurodiversity is much broader. This article is not intended to be a glossary, nor merely to sit as an appendix to the Bench Book as a reference point to minimise the risks of inadvertent offence. Engaging with the issues outlined below is far more important than ensuring that one has mastered the subtler aspects of the terminology. But, equally, this article might be somewhat opaque without first defining the following terms:

  • Neurodiversity: The variance of ways in which brains function. Proponents of neurodiversity seek to treat said variance as a normal and desirable feature of the diversity within humanity, rather than simply pathologising it.
  • Neurodivergent: A neurodivergent person’s brain functions/operates differently to one that is considered to be typical. For example, a difficulty interpreting symbols on a page, or how expressions link to emotion. This difference may be described as a person’s ‘neurodivergence’.
  • Neurotypical: A neurotypical person is not neurodivergent. Together with neurodivergent, the pair are mutually exclusive and collectively exhaustive.

Neurodivergent conditions are, in reality,names given to a groupof traits that are often seen together. Diagnoses are made by educational psychologists or psychiatrists following in-person assessments, often in conjunction with aptitude test scores. Very few diagnoses will be determined using brain imaging. An individual’s traits may not fit neatly into one condition, and many neurodivergent people are consequently diagnosed with more than one condition. This explains to some extent why many people identify themselves as ‘neurodivergent’ alongside their specific condition, and in some cases rather than by their specific condition.

Neurodivergence may constitute a disability under the Equality Act 2010, but not necessarily. Neurodiversity and disability are overlapping issues, but neither fits wholly within the other.

As an example, I am neurodivergent and I am dyslexic – the former before the latter. My neurodivergence constitutes a disability. I have long suspected that I experience and understand things differently to those around me. In my mid-twenties I was presented with something resembling an explanation – a diagnosis of dyslexia. My neurodivergence makes me remarkably good at spotting ambiguity in a sentence, but I have woeful instincts for identifying which of the potential meanings is intended. I think in tangents and by analogy, which makes coming up with ideas (for an article, for example) a breeze, but sitting down and turning those ideas into a linear train of thought can be painstaking.

Stigma at the Bar...

In general, the barriers that neurodivergent people face echo those experienced by other people who deviate from the prototypical mean: exclusion, disadvantage, and mistrust. This is not a coincidence. These problems are rooted in stigma and misunderstanding about people who are, or are considered to be, different.

The stigma often associated with neurodivergent people relates to their intellect, or their ability to manage themselves. This is not helped by the fact that many neurodivergences are framed as ‘learning disabilities’. The Bar prides itself on being an elite, academic profession. Due to this, I fear that we at the Bar are particularly susceptible to being influenced by this stigma, whether consciously or unconsciously.

For example, while I was studying the Bar Professional Training Course someone in a senior position within our profession said to me: ‘A dyslexic person wanting to be a barrister is like a blind person wanting to be a bus driver.’ For clarity, this was not a targeted criticism and they did not know about my dyslexia. Because of this comment I did what I know many still do now: I hid my neurodivergence when applying for pupillage.

It is a mistake to conclude that high standards preclude neurodivergent people from becoming outstanding barristers. Every barrister has a different amalgamation of various traits, both strengths and weaknesses. For the neurodivergent among us, some of our strengths are more heightened, and our weaknesses more pronounced. The Bar should not conflate the typical example of a barrister with the only valid mould.

In contrast to the bus driver metaphor above: to assume that a neurodivergent person cannot be a barrister because of how their brain functions is like assuming that a short person cannot be a barrister because they are unable to see over a lectern. Of those who are short, not many are so short that they would be concealed behind a lectern. Even for those that are, a reasonable adjustment would entirely resolve the issue.

... and why it persists

In part, the widespread unfamiliarity with neurodiversity exists because it is a relatively new concept. The word was only coined in 1998 by sociologist Judy Singer, meaning that it is likely younger than every barrister in the country – for another year or so at least. Medical understanding of neurodiversity has developed considerably since then, and with that the ability to identify it has increased.

As with any equality and diversity issue at the Bar, there are broadly three categories of person that enable the stigma to persist:

  1. the forgivably ignorant, who are simply unaware;
  2. the apathetic, who have heard of the matter but do not engage with it; and
  3. the overtly bigoted, who propagate the stigma.

Because the subject is relatively new, neurodiversity has a comparatively large population in category (1).

It is important that our understanding of neurodiversity is not bound by stereotypes. Neurodivergence often affects how people learn to socialise and express themselves. These are inherently shaped by societal expectations, and so are influenced by, inter alia, gender and race. Neurodivergent stereotypes are often built upon the depiction of neurodiversity in popular culture, which can be reductive and based on the most generic form of any given neurodivergence. Consequently, even where stereotypes purport to be ‘positive’, they are insulting at worst and erroneous at best.

As many as one third of the population are estimated to be neurodivergent, and the profession as a whole is almost certainly not representative. The novelty of neurodiversity means that the disparity is likely to be most acute at the top of the profession. Indeed, because the accessibility and understanding of neurodiversity postdates their entry into the profession, it is probable that there are senior barristers who are neurodivergent and are themselves unaware of it. This means that there is little prominent neurodivergent success at the senior end of the profession. This, in turn, lends credence to the stigma, and combines with it to discourage younger barristers from being openly neurodivergent. The problem is circular and self-perpetuating.

The case for inclusivity

The moral case is a simple one. A person should not be excluded from our profession, or disadvantaged or mistrusted within it, on the basis of a quality about which that person has no control, where said quality is not relevant to that person’s ability.

There is a business case for neurodiversity, too. Neurodiversity is ever more visible. Other industries are making progress faster than the legal sector. And other legal professions are making progress faster than the Bar. There is a real and significant risk that the Bar will be seen as sluggishly lagging behind. For the profession as a whole, the danger is that neurodivergent barristers may simply leave the profession, and talented neurodivergent would-be barristers will pursue other careers. For chambers that do not proactively engage, there is a risk that talented neurodivergent barristers, and their allies, will leave for sets where they will feel valued.

What can be done

Primarily: engage with neurodiversity.

We must move away from the fallacy that the Bar is a meritocracy, and acknowledge that the playing field is not level. Chambers with the best environment for neurodivergent barristers are those that are the most proactive about making reasonable adjustments for their members. These adjustments should also be offered for chambers staff, pupils, and for candidates in the pupillage recruitment process. Whether or not chambers are obliged to make reasonable adjustments in all cases rather misses the point. We are a profession that prides itself on its exceptionally high standards, and we should aim higher than scraping just above the legal bare minimum.

Allyship is essential to the success of bringing neurodiversity to the Bar. Neurotypical barristers can lend their support by being vocal advocates for neurodiversity and offering support to organisations that are seeking to make progress, including but not limited to Neurodiversity in Law.

Neurodivergent barristers are in a position to choose whether or not to be open. Visibility has markedly improved since I first looked into joining this profession, and there has been a step change since the launch of Neurodiversity in Law in October 2020. Visible neurodivergent success at the Bar, in particular at the senior end, would go a long way.

Both individuals and chambers can contact Neurodiversity in Law (see box below) should they wish to discuss any of the above. I will always make time for any barristers who wish to speak to me confidentially about whether or not to be openly neurodivergent. 

At Neurodiversity in Law, our purpose is to promote and support neurodiversity within the legal professions and eliminate the stigma often associated with people who think differently. The Law Society, for example, emphasises that the profession ‘benefits greatly from neurodivergent minds. Neurodivergent individuals are often highly skilled in problem-solving, communications, strategy creation, trouble-shooting, improving processes, and lateral and creative thinking – all qualities essential to the legal profession’.
We envisage engaging widely with the legal sector to encourage an open discourse about neurodivergent lawyers. We emphasise an intersectional approach to neurodiversity, which is why we’ve teamed up with several different diversity and inclusion organisations already.
Neurodiversity in Law is not just for neurodivergent individuals. It is for everyone. Whether you have already decided to be an ally or whether you just want to find out more, you are welcome to join any of our open events or get in touch. Find out more here: neurodiversityinlaw.co.uk