5 Common Obstacles that Women in Law are Still Facing

Written by Charlene Ko

UQLS Diversity & Wellbeing Subcommittee Member

The most recent 2020 National Profile of Solicitors report conducted by Urbis concluded that female law practitioners make up 53% of the entire legal profession in Australia, yet several studies still suggested that they face obstacles while practising law.

The report demonstrated an overview of the legal profession in Australia and examined different factors such as gender, age, and geographic distribution (Urbis, 2021). There are 44,581 women and 39,052 men in the Australian legal profession as of October 2020. The number of female lawyers upsurged from 46% in 2011 to 53% in 2020 (Urbis, 2021). This is certainly a significant increase that could potentially encourage even more women to join the legal profession in the future.

However, an increase in the number of female lawyers does not mean that gender issues have been resolved. Women in law are still facing several obstacles, such as gender inequalities, sexual harassment, discrimination, underrepresentation, and the gender wage gap.

Gender Inequalities

The Australian Bureau of Statistics (ABS) (2020) has proven that overall, women are more likely to provide primary care during their employment. Arguably, female lawyers might still be subjected to expectations to occupy gendered roles as carers for family members. A recent study has indicated that harassment, bullying and unfairness against women who adopt alternative working arrangements due to family commitments is one of the major reasons why female lawyers left the legal profession (JB Solicitors, 2017). When they are temporarily away from work for family commitments, there might be amendments in the law or advanced developments in technology, and it might also cause them to fall out of contact with their professional network. These factors place them in a disadvantageous position and cause further discrimination to continue working in the profession (JB Solicitors, 2017).

Ms Francesca Bartlett, an Associate Professor at the TC Beirne School of Law, indicated that there are strong cultures of working long, excessive hours in the office in the legal industry. Clients, or even courts, presume lawyers to be available 24/7. The COVID-19 pandemic has even changed the working environment. Firms have adopted flexible working arrangements which imply there are expectations that lawyers can be reached and be able to work at any time. This has brought up general concerns about unhealthy work, which leads to further gendered implications. Although large companies are required to report their policies and outcomes to the Workplace Gender Equality Agency, and various Fair Work Agencies have monitored and evaluated excessive work practices, Ms Bartlett pointed out that some may argue that corporatized environment still creates cultures that favour the ‘benchmark male’ worker who can work any time for a sustained career to produce the highest profits.

Sexual Harassment

Women in the legal profession are also struggling with discrimination and sexual harassment. The International Bar Association (2019) conducted a final report and concluded that 47% of female lawyers have been sexually harassed, as compared with 37% globally, and 13% of male lawyers, as compared to 7% globally. The Women Lawyers Association NSW (2019) surveyed that 71% of practitioners have experienced sexual harassment, however, only 17% made a formal complaint, as a majority of the respondents (64%) were in fear of negative consequences. 38% responded that their complaint was disregarded, and a further 29% answered that they were being treated unfairly after filing the complaint. The National Attrition and Re-engagement Study (NARS) Report conducted by the Urbis (2013) established that 1 in 4 women reported experiencing sexual harassment. Lastly, the Victorian Equal Opportunity and Human Rights Commission (2012) found that 24% of respondents had experienced sexual harassment and a further 11.6% reported that they were conscious that sexual harassment has happened to other female lawyers in their workplace in the last 12 months.

Discrimination

Ms Bartlett suggested that women in law might also experience unconscious bias where they are given stereotypical assumptions about their strengths and weaknesses. For instance, they are thought to be better in certain areas of law and have poorer performance at advocacy and negotiation than male lawyers. Also, affinity bias might be present in the law industry where it might be that men hire men because they feel more comfortable working with the same gender. These kinds of discrimination not only determine who gets hired, promoted, or briefed, but also potentially shake the confidence of women who are subject to these criticisms about their abilities or the possibility of promotion. However, Ms Bartlett also noted that often discrimination is done unconsciously, based on their inherent feelings or beliefs.

Underrepresentation

Thus, it is often argued that if more women are getting into senior positions, it could support other women in law and potentially create a cultural shift in the legal profession for gender equality (Shams, 2021). However, they would not be able to retain a senior position if they do not receive equal opportunities to demonstrate their abilities. Thus, there is still a lack of women in senior roles due to under-representation. This is a loophole that leads to other obstacles faced by women lawyers.

Ms Bartlett stated that despite the increasing number of women in leading positions, such as the Chief Justice of the High Court and our Chief Justice of the Queensland Supreme Court, the trend is not consistent within the legal profession in terms of senior ranks. For instance, only 11 out of 131 senior barristers are women, which merely takes up 8% of the total number of senior barristers. The situation is better in the solicitors’ branch where there are approximately 30% of female partners in most large firms. However, it is still not considered gender parity. Women barristers are less likely to receive briefs in civil or commercial areas from solicitors, despite various initiatives such as the equal opportunity briefing policies which encourage legal practitioners to select and evaluate barristers based on their abilities and skills rather than their gender (Bartlett, 2008). The efficiency of these kinds of affirmative action to resolve the discrimination issue in Australia by assisting women barristers in receiving briefs remains questionable.

Gender-wage Gap

Lastly, with regards to the gender wage gap, Australia’s gender pay gap statistics concluded that the full-time gender wage gap in the legal profession is 23.8%. This indicates that women lawyers earn less income compared to their male colleagues (Workplace Gender Equality Agency [WEGA], 2022). In fact, numerous studies have shown that pay secrecy will intensify discrimination and unconscious bias, as male counterparts could have a greater opportunity to seek wage rises (Pender, 2021).

Although there is still a lot more left to work on improving the situation of women lawyers in the legal profession, it is clear that the situation is improving. Thus, women lawyers should not be discouraged, as all the hard work that women in law have achieved is being recognised.

“Women lawyers work as hard, are as smart, technically good, ethical and as brave and innovative as male lawyers. Don’t let anyone imply that isn’t true. It is up to you then to be a good lawyer. However, you may face obstacles in your career where assumptions are made about you because you are a woman. It is reasonable to find these experiences dispiriting, upsetting and infuriating. That is simply a normal reaction to an unfair reality. Find wonderful and supportive mentors and peers who will show you that it is not true, and work out a way to deal with and speak out about this,” ­– Associate Professor Francesca Bartlett

I would like to extend my sincere thanks to Associate Professor Francesca Bartlett and Ms Jodie Wooldridge QC who contributed a great amount of invaluable insight into the common obstacles that women in law are facing.

Secondary sources

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Bartlett, F. (2008). Model advocates or a model for change? The model equal opportunity briefing policy as affirmative action. Melbourne University Law Review, 32(2), Article 351. http://www.austlii.edu.au/au/journals/MelbULawRw/2008/12.html

Bowie, C. (2021, July 15). Too soon to celebrate a win for female lawyers in Australia. LawyersWeekly. https://www.lawyersweekly.com.au/sme-law/31942-too-soon-to-celebrate-a-win-for-female-lawyers-in-australia

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Shams, H. (2021, July 21). Female lawyers outnumber males, but advocates say more women are needed in senior roles. ABC News. https://www.abc.net.au/news/2021-07-21/women-lawyers-australia-gender-equality-newlaw-law-society-/100309294

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