- Report of the canadian Bar Association on Gender Equality in the Legal Profession: Touchstones for Change: Equality, Diversity and Accountability (canadian Bar Association, 1993).
- Sheila McIntyre and Elizabeth Sheehy, ‘Introduction’ in Sheila McIntyre and Elizabeth Sheehy (eds), Calling for Change: Women, Law and the Legal Profession (university of Ottawa Press, 2006) 1, 3. Professors McIn-tyre and Sheehy note that the work on gender equality in the legal profession that pre-dated Touchstones ‘addressed gender largely in isolation from race, class, disability, sexual identity, national origin and other axes of inequality’.
- Ibid, 3. For early commentary on Touchstones see Melina Buckley, ‘Touchstones for Change: A response’ (1993) 51 The Advocate 853; Dianne Pothier, ‘A comment on the Report of the CBA Task Force on Gender Equality in the Legal Profession’ (1993) 16 Dalhousie Law Journal 484.
- In autumn 2013, the nova Scotia Barristers' Society held an afternoon forum commemorating the 20-year anniversary of the Touchstones report. Over the last 20 years, the canadian Bar Association has taken up a number of the Touchstones recommendations, including, for example, establishing a permanent Standing committee on Equity and undertaking a comprehensive study of racism in the legal profession. See eg canadian Bar Association, Ten Years into the Future: Where are We Now after touchstones? 1993–2003 (canadian Bar Association, 2003), www.cba.org/cba/equity/pdf/Annual_report_Equality_2003_2.pdf; Working Group on racial Equality in the Legal Profession, Racial Equality in the Legal Profession (canadian Bar Association, 1999). See also Melina Buckley, ‘the Second Decade: the role of the canadian Bar Association in Implementing the Touchstones report’ in McIntyre and Sheehy (n 2) 325.
- relying on the work of natasha Bakht, Kim Brooks, Gillian calder, Jennifer Koshan, Sonia Lawrence, caris-sima Mathen and Debra Parkes, ‘counting Outsiders: A critical Exploration of Outsider course Enrollment in canadian Legal Education’ (2007) 45 Osgoode Hall Law Journal 667, 672, ‘we use the term “outsider” to describe those who are members of groups that have historically lacked power in society or have traditionally been outside the realms of fashioning, teaching, and adjudicating the law’. Bakht et al, at 671, note the origins of this use of ‘outsider’ in Mari Matsuda, ‘Public response to racist Speech: considering the Victim's Story’ (1989) 87 Michigan Law Review 2320, 2323. the term ‘women and outsiders' is not intended to imply that women do not occupy other outsider locations on the basis of race, sexual orientation, disability, ethnicity, class etc that may have signifcant impacts on their experiences in the legal profession.
- comprehensive, long-term statistics on the demographics of entering classes at canadian law schools on the basis of gender, race, sexual orientation, disability, ethnicity and class are not publicly available and the degree to which law schools themselves have internally been tracking such information is unclear. One area where more detailed data is available is with respect to gender: until the early 1970s women were a ‘rarity’ in canadian law classes, but the number of women has steadily grown such that they now enter law schools in approximately equal numbers to their male counterparts. Some information is also available with respect to students of Aboriginal ancestry. See eg christopher Guly, ‘Apprenticeship to Academe: the History of Law Schools in canada’ Lawyers Weekly, 24 September 2010, www.lawyersweekly.ca/index.php?section=article&articleid=1255.
- For example, in May 2013 sixteen canadian law firms announced that they were joining together to form the Law Firm Diversity and Inclusion network, agreeing ‘to work together to promote diversity and encourage a culture of inclusion not only inside the firms, but in the broader legal profession as well’: www.newswire.ca/en/story/1169801/sixteen-canadian-law-firms-join-forces-to-support-the-law-firm-diversity-and-inclusion-network. In Ontario, more than 55 firms have pledged support for LSuc's Justicia project, described by the Law Society as ‘the frst of its kind in canada and includes representatives from medium and large firms committed to identifiying and adopting principles and best practices that promote the retention and advancement of women’: www.lsuc.on.ca/justicia_project.
- the canadian Bar Association, for example, has established a number of dedicated groups that provide support and research on diversity in the profession, including the Equality committee, the Women Lawyers Forum, and the Sexual Orientation and Gender Identity conference. Many individual law societies also offer tailored support: LSuc, for example, has a dedicated Discrimination and Harassment counsel and the nova Scotia Barristers' Society houses an Equity Office which, among other things, is tasked with addressing sexism and racism in the legal profession in nova Scotia.
- Early conversations about the underrepresentation of women in the upper echelons of the legal profession battled arguments that this was a ‘no-problem problem’; that is, many argued that as the number of women in the legal profession grew, the number of women partners would naturally rise: see Deborah L rhode, ‘the “no-Problem” Problem: Feminist challenges and cultural change’ (1991) 100 Yale Law Journal 1731.
- See, for example, a recent canadian account in Fiona M Kay, Stacey Alarie and Jones Adjei, Leaving Law and Barriers to Re-Entry: A Study of Departures from and Re-Entries to Private Practice: A Report to the Law Society of Upper Canada (23 April 2013), www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147494539, which is part of a series of reports on a longitudinal study of nearly 1,600 Ontario lawyers surveyed over a 20-year period.
- the body of such material is copious. For a few examples, see the Law Firm Diversity and Inclusion network and the LSuc's Justicia Project (n 7); Kay, Alarie and Adjei (n 10); Law Society of British columbia, The Business Case for Retaining and Advancing Women in Private Practice (2009); Ann Macaulay, ‘How to retain top Female talent, and What Women Should Look For in a Law Firm’, canadian Bar Association, www.cba.org/cBA/PracticeLink/WWP/women.aspx; Linda K robertson, ‘... And the Women Lawyers Still Leave’, Slaw: Canada's online legal magazine (29 March 2012), www.slaw.ca/2012/03/29/and-the-women-lawyers-still-leave; Lisa Vogt, ‘Gender Diversity: Preparing for the new Legal Environment’ (2011) 44 UBC Law Review 55; Joan Brockman, ‘Leaving the Practice of Law: the Wherefores and Whys' (1994) 32 Alberta Law Review 116; Fiona M Kay, ‘Flight from Law: A competing risks Model of Departures from Law Firms' (1997) 31 Law and Society Review 301.
- In the united States, organisations such as catalyst, the national Association of Law Placement and the national Association of Women Lawyers have been at the forefront of collecting statistics and reporting on the retention and promotion of women lawyers. See eg ‘Women in Law in the uS’, www.catalyst.org/knowledge/women-law-us; national Association of Women Lawyers (nAWL), ‘Survey of retention and Promotion of Women in Law Firms', www.nawlfoundation.org/activities/research. the American Bar Association has also taken up this issue, forming a ‘commission on Women in the Profession’, www.americanbar.org/groups/women.html. A number of American legal scholars have written on this topic, including Deborah L rhode, ‘From Platitudes to Priorities: Diversity and Gender Equity in Law Firms' (2011) 24 Georgetown Journal of Legal Ethics 1041; Eli Wald, ‘Glass ceilings and Dead Ends: Professional Ideologies, Gender Stereotypes, and the Future of Women Lawyers at Large Law Firms' (2010) 78 Fordham Law Review 2245; nancy J reichman and Joyce S Sterling, ‘recasting the Brass ring: Deconstructing and reconstructing Workplace Opportunities for Women Lawyers' (2002) 29 Capital University Law Review 923; Paula A Patton, ‘Women Lawyers, their Status, Infuence and retention in the Legal Profession’ (2005) 11 William and Mary Journal of Women and the Law 173; c Fuchs Epstein et al, ‘Glass ceilings and Open Doors: Women's Advancement in the Legal Profession’(1995) 64 Fordham Law Review 291. For examples in England and Wales, see Hilary Sommerlad, ‘Women Solicitors in a Fractured Profession: Intersections of Gender and Professionalism in England and Wales' (2002) 9(3) International Journal of the Legal Profession 213; Lisa Webley and Liz Duff, ‘Women Solicitors as a Barometer for Problems within the Legal Profession: time to Put Values before Profts?’ (2007) 34 Journal of Law and Society 374.
- the term ‘queer’ has historically been used to denigrate gay, lesbian, bisexual and transgendered (GLBt) people, however ‘it has evolved to “Queer”—with a capital Q—to refect the recent renunciation of its negative uses and the reclamation of the term by sexual minorities': Laurie rose Kepros, ‘Queer theory: Weed or Seed in the Garden of Legal theory?’ (1999–2000) 9 Law & Sexuality Review 279, 279 fn 1. See also Francisco Valdes, ‘Beyond Sexual Orientation in Queer Legal theory: Majoritarianism, Multidimensionality, and responsibility in Social Justice Scholarship’ (1998) 75 Denver University Law Review 1409, 1410 fn 3.
- robert Leckey, ‘Face to Face’ (2013) 19(6) Social Identities: Journal for the Study of Race, Nation and Culture 743, 755. Leckey notes this as one of the limits of Queer theory's ‘analytic purchase’.
- For statistics, see Guly (n 6).
- 1971 statistics from Michael Ornstein, Racialization and Gender of Lawyers in Ontario: A Report for the Law Society of Upper Canada (April 2010), i; 2011 statistics from Law Societies Statistical reports, 2011, Federation of Law Societies of canada, www.fsc.ca/en/resources.
- For a list of bibliographies summarising these studies, see Joan Brockman, ‘the use of Self-regulation to curb Discrimination and Sexual Harassment in the Legal Profession’ (2002) 35(2) Osgoode Hall Law Journal 209. See also Fiona Kay, Women in the Legal Profession (LSuc, 1989) (commissioned by the LSuc's Sub-committee on Women in the Legal Profession); Law Society of British columbia, Women in the Legal Profession Subcommittee, Women in the Legal Profession: A Report of the Women in the Legal Profession Subcommittee (1991).
- See eg Fiona Kay, Transitions in the Ontario Legal Profession: A Survey of Lawyers Called to the Bar between 1975 and 1990 (LSuc, 1991). For a summary of the LSuc's work on equity issues between 1988 and 1996, see LSuc, Bicentennial Report and Recommendations on Equity Issues in the Legal Profession (1997).
- this theme is sometimes described by other titles, such as ‘retention and advancement of women’ or ‘retention of women lawyers'. For ease of reference, this article will use ‘retention of women’ throughout.
- See eg university of toronto, Faculty of Law, ‘Leaders Discuss retention, Advancement Issues Facing Women in Private Practice’ (29 January 2009), www.law.utoronto.ca/news/leaders-discuss-retention-advancement-issues-facing-women-in-private-practice.
- In 2008, the Law Society of upper canada and the Law Society of British columbia established retention of Women in Law task forces. For information about the Ontario task force, see www.lsuc.on.ca/with.aspx?id=397; for information about the British columbia task force, see www.lawsociety.bc.ca/docs/publications/reports/retention-of-womentF.pdf. Soon after, the Law Society of Alberta also initiated a retention of Women Working Group, operating as a pilot project through the Office of the Equity Ombudsperson: www.lawsociety.ab.ca/fles/bulletins/Bulletin_2010_02Feb_12.htm.
- See eg Oliver Bertin, ‘Glass ceiling Still Exists' Lawyers Weekly, 18 September 2009, www.lawyersweekly.ca/index.php?section=article&articleid=997; robert todd, ‘LSuc tackles Female Exodus' Law Times, 2 March 2008, www.lawtimesnews.com/200803021765/headline-news/lsuc-targets-female-exodus; Linda K robertson, ‘Law Firm Partnerships and the retention of Women Lawyers', www.slaw.ca/2011/12/21/law-firm-partnerships-and-the-retention-of-women-lawyers.
- the websites of many larger canadian law firms now expressly address the issue of diversity and retaining women lawyers. See eg torys LLP, http://torysdiversity.com/women; Mccarthy tétrault, www.mccarthy.ca/Fostering_Gender_Diversity.aspx; Miller thomson, www.millerthomson.com/en/our-firm/womens-leadership-initiative.
- LSuc, retention of Women in Private Practice Working Group, www.lsuc.on.ca/with.aspx?id=397. For the full mandate of the Working Group, see Executive Summary—Retention of Women in Private Practice Working Group (2008), 2.
- the Working Group's consultation included the participation of approximately 900 lawyers and law students in meetings across the province, as well as more than 55 written submissions from individuals and organisations: www.lsuc.on.ca/with.aspx?id=397.
- Final Report—Retention of Women in Private Practice Working Group (2008), www.lsuc.on.ca/media/convmay08_retention_of_women_consultation.pdf.
- Ibid, 105–14.
- Ibid, 88–94.
- See eg LSuc, Retention of Women in Private Practice: Status Report (2010), www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147484086; LSuc, Retention of Women in Private Practice: Status Report (2011), www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147485438; LSuc, Retention of Women in Private Practice: Status Report (2012), www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147489485.
- ‘Law Society Extends Justicia Project and Parental Leave Program’ (27 October 2011), www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147485925.
- ‘Justicia: Leading the Way to a More Inclusive Future’ (3 June 2014), www.lawsocietygazette.ca/treasurers-blog/justicia-future. For a list of Justicia resources, see LSuc, ‘the Justicia Project’, www.lsuc.on.ca/justicia_project.
- David Podmore and Anne Spencer, ‘Women Lawyers in England: the Experience of Inequality’ (1982) 9 Work and Occupations 337.
- Hilary Sommerlad et al, Diversity in the Legal Profession in England and Wales: A Qualitative Study of Barristers and Individual Choice (Legal Services Board, 2010), www.legalservicesboard.org.uk/what_we_do/research/Publications/pdf/lsb_diversity_in_the_legal_profession_final.pdf; Bar council, Statistics, www.barcouncil.org.uk/about-the-bar/facts-and-fgures/statistics/#AllBarStats.
- See eg Sommerlad (n 12); Webley and Duff (n 12); Hilary Sommerlad and Peter Sanderson, Gender, Choice and Commitment: Women Solicitors in England and Wales and the Struggle for Equal Status (Aldershot, 1998).
- Eleni Skordaki, ‘Glass Slippers and Glass ceilings: Women in the Legal Profession’ (1996) 3 International Journal of the Legal Profession 7, 22 and 29, citing a study conducted by the Bar council and the Law Society (Lesley Holland and Lynne Spencer, Without Prejudice? Sex Equality at the Bar and in the Judiciary (Bar council, 1992)).
- Both the English Law Society and the Bar council have taken up this topic as a matter of study. See eg Law Society, Obstacles and Barriers to the Career Development of Woman Solicitors (March 2010). the Bar council also has a retention committee that aims ‘to increase the retention of women in practice and to advise on all matters relating to retention issues at the Bar’: www.barcouncil.org.uk/about-us/constitution-and-structure/committees/equality-and-diversity-committee/retention.
- rhode (n 12) 1042.
- Ibid.
- See, for example, the reports by catalyst.org and the nAWL (n 12); American Bar Association, ‘commission on Women in the Profession’, www.americanbar.org/groups/women.html; national Association of Law Placement, ‘Minorities and Women’, www.nalp.org/minoritieswomen.
- ‘About nAWL’, www.nawl.org/p/cm/ld/fd=9.
- nAWL (n 12).
- Queer theory might well offer important insights into questions of lawyer professionalism beyond the ‘retention question’ considered here. It is our hope that this article will be part of a broader, ongoing conversation about the connections between legal professionalism and Queer theory/critical theories.
- there is widespread agreement on the definitional ambiguity of Queer theory; in fact, for many, this is part of its appeal. See eg Elaine craig, ‘converging Feminist and Queer Legal theories: Family Feuds and Family ties' (2010) 28 Windsor Yearbook of Access to Justice 209, 213, noting that Queer theory ‘can refer to a great variety of different methodological, political and theoretical approaches'; Kepros (n 13) 281, abandoning the ‘impossible task of positively defining Queer theory’ in favour of describing what Queer theory is not; and robert Leckey and Kim Brooks, ‘Introduction’ in robert Leckey and Kim Brooks (eds), Queer Theory: Law, Culture, Empire (routledge, 2010) 1, stating that ‘[t]he attraction of queer theory is its resistance to definition’.
- Queer theory speaks to the social and legal signifcance of sexual orientation and gender identity and expression, and focuses on the experiences of sexual and gender minorities qua sexual and gender minorities, though it may aspire to include others ‘who do not conform to a culturally tidy label’. Kepros (n 13) 283 notes, for example, that Queer theory includes ‘the cross-dressing straight man’ who, without Queer theory, ‘is in an identity limbo that the categories of gender and sexuality, even with the fve options refected in GLBtt identity, cannot fully describe’.
- Valdes (n 13) 1416 marks the start of sexual orientation scholarship in the legal arena in the united States with the frst ever symposium of sexual orientation and the law, held in 1979 and resulting in the publication of ‘Sexual Preference and Gender Identity: A Symposium’ (1979) 30 Hastings Law Journal 799. One of the early critiques of sexual orientation scholarship was its failure to engage dimensions of oppression beyond sexual orientation. See eg Darren Lenar Hutchinson, ‘Out yet unseen: A racial critique of Gay and Lesbian Legal theory and Political Discourse’ (1997) 29 Connecticut Law Review 561; Valdes (n 13) 1416–18.
- Leckey and Brooks (n 43) 2.
- Queer theory is described as postmodern in character, meaning that it begins from recognition that ‘social conditions and human understanding of them are complex, contingent and contextual’: Valdes (n 13) 1419. On postmodernism see generally Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End (nyu Press, 1995) 224, describing postmodernism as ‘neither a theory nor a concept; it is rather a skeptical attitude or aesthetic’.
- craig (n 43) 214.
- In his seminal work on Queer legal theory, Francisco Valdes identifies its goal as ‘nothing short of sex/gender dignity and freedom for every individual’, but is careful to emphasise that this does not mean that issues of sex and gender should predominate over other, intersecting axes of injustice: Francisco Valdes, ‘Afterword and Prologue Queer Legal theory’ (1995) 83 California Law Review 344. According to Valdes, at 363–4, the ‘ultimate goal’ of Queer legal theory is to surmount subordination in order ‘to help promote egalitarianism and equality broadly—as an overarching principle of law and as a non-negotiable fact of life’. See also Kepros (n 13) 280, noting Queer theory's ‘potential to expose social inequality’, and craig (n 43) 213–14, who notes that unlike much liberal legal theory, Queer legal theory ‘is not concerned explicitly and directly with equality’ although ‘[a]rguably there is a political commitment to equality interests underpinning the work of most queer theorists'.
- Kim Brooks and Debra Parkes, ‘Queering Legal Education: A Project of theoretical Discovery’ (2004) 27 Harvard Women's Law Journal 89, 97 confirm that Queer legal theory ‘is not simply about the use of law and legal arguments to improve the lives of people who fall within the familiar gay, lesbian, bisexual, transgender, and transsexual categories'.
- One branch of this scholarship considers the experiences of Queer law students, law faculty and lawyers. See eg Joyce tam, ‘Open Dialogue: An Experience of Gender, Sexuality, Discourse and Legal Education’ [2008] CLEAR 197; G Kristian Miccio, ‘closing My Eyes and remembering Myself: refections of a Lesbian Law Professor’ (1997) 7 Columbia Journal of Gender & the Law 167; Brooks and Parkes (n 50); Scott Ihrig, ‘Sexual Orientation in Law School: Experiences of Gay, Lesbian and Bisexual Law Students' (1996) 14 Law & Inequality 555.
- Valdes (n 13) 1416. See also Janet Halley, ‘reasoning about Sodomy: Act and Identity In and After Bowers v Hardwick’ (1993) 79 Virginia Law Review 1721; Francisco Valdes, ‘Queers, Sissies, Dykes, and tomboys: Deconstructing the confation of “Sex“, “Gender”, and “Sexual Orientation” in Euro-American Law and Society’ (1995) 83 California Law Review 3; Kenji yoshino, ‘the Epistemic contract of Bisexual Erasure’ (2000) 52 Stanford Law Review 353; Fiona Kelly, ‘(re)forming Parenthood: the Assignment of Legal Parentage within Planned Lesbian Families' (2009) 40 Ottawa Law Review 185; Isabel Grant, ‘the Boundaries of criminal Law: criminalization of HIV non-Disclosure’ (2008) 31 Dalhousie Law Journal 7; Sarah Lamble, ‘unknowable Bodies, unthinkable Sexualities: Lesbian and transgender Legal Invisibility in the toronto Women's Bathhouse raid’ (2009) 18 Social & Legal Studies 111; Brenda cossman, Sexual Citizens: The Legal and Cultural Regulation of Sex and Belonging (Stanford university Press, 2007).
- See eg Brooks and Parkes (n 50) 97, citing in part Kepros (n 13) 280, describing Queer legal theory as ‘a term of art that draws on postmodern theory, specifically deconstruction, to “critique the concept of ‘identity’ and the identity-based rights discourses that rely on definitional and categorical identity closure”’. Leckey and Brooks (n 43) conclude: ‘If it has a core, queer theory is about resisting categorization, for itself and for its subjects' (at 1).
- Margo Kaplan, ‘Sex-Positive Law’ (2014) 87 NYU Law Review (forthcoming), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=230895.
- Erin Fowler, ‘A Queer critique on the Polygamy Debate in canada: Law, culture, and Diversity’ (2012) 21 Dalhousie Journal of Legal Studies 9.
- Brooks and Parkes (n 50); see also Kepros (n 13) 280, who suggests that ‘it is time for Queer legal theory (QLt) to enter jurisprudence and the law school classroom’.
- See eg Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (South End Press, 2011). In one recent iteration of this critique, ‘queer writers have excoriated the liberal gay-and-lesbian rights movement for seeking inclusion in institutions such as marriage and the military’: Leckey (n 14) 744; see, for example, ryan conrad (ed), Against Equality: Queer Critiques of Gay Marriage (Against Equality Press, 2010).
- Martha Fineman, ‘Introduction: Feminist and Queer Legal theory’ in Martha Fineman, Jack Jackson and Adam romero (eds), Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations (Ashgate, 2009) 1, 2. See eg constance Backhouse, ‘Gender and race in the construction of “Legal Professionalism”: Historical Perspectives', paper given at the First colloquium on the Legal Profession, October 2003, www.lsuc.on.ca/media/constance_backhouse_gender_and_race.pdf; rhode (n 12); Deborah L rhode, ‘Perspectives on Professional Women’ (1988) 40 Stanford Law Review 1163; Margaret thornton, Dissonance and Distrust: Women in the Legal Profession (Oxford university Press, 1996); richard collier, ‘Masculinities, Law, and Personal Life: towards a new Framework for understanding Men, Law, and Gender’ (2010) 33 Harvard Journal of Law & Gender 431; Wald (n 12).
- there are well-documented tensions between feminist and Queer theories, including questions about the relevance of Queer theory to ostensibly gendered questions like the ‘retention of women’ in the legal profession. See, for example, the collection of essays and perspectives in Fineman, Jackson and romero (n 58).
- craig (n 43) 229–30. See also Judith Butler, ‘Against Proper Objects' in Elizabeth Weed and naomi Schor (eds), Feminism Meets Queer Theory (Indiana university Press, 1997) 1; Brenda cossman, ‘Sexuality, Queer theory, and “Feminism After”: reading and rereading the Sexual Subject’ (2004) 49 McGill Law Journal 847.
- craig (n 43) 212, contending that ‘Queer theorists would be as ill advised to “take a break from feminism” as feminists would be to ignore the potential for women's equality to be derived from some queer projects'.
- Valdes (n 49) 363–4.
- Hilary Sommerlad, ‘”Becoming” a Lawyer: Gender and the Processes of Professional Identity Formation’ in Sheehy and McIntyre (n 2) 159; Hilary Sommerlad, ‘“What Are you Doing Here? you Should Be Working in a Hair Salon or Something”: Outsider Status and Professional Socialization in the Solicitors' Profession’ [2008] Web Journal of Current Legal Issues, http://webjcli.ncl.ac.uk/2008/issue2/sommerlad2.html; Margaret thornton, Dissonance and Distrust: Women in the Legal Profession (Oxford university Press, 1996); Margaret thornton, ‘Authority and corporeality: the conundrum for Women in Law’ (1998) 6(2) Feminist Legal Studies 147, 166; richard collier, ‘“nutty Professors”, “Men in Suits” and “new Entrepreneurs”: corporeality, Subjectivity and change in the Law School and Legal Practice’ (1998) 7(1) Social and Legal Studies 27, 31.
- ramona Faith Oswald et al, ‘Queering the Family’ in Sally A Lloyd et al (eds), Handbook of Feminist Family Studies (Sage, 2009), citing S crawley and KL Broad, ‘the construction of Sex and Sexualities' in J Holstein and J Gubrium (eds), Handbook of Constructionist Research (Guilford Press, 2008) 545, citing in part rachel Hare-Mustin, ‘Discourses in the Mirrored room: A Postmodern Analysis of therapy’ (1994) 33 Family Process 19.
- the reference to ‘hypercompetitive’ ideology comes from Wald (n 12), discussing in particular the emergence of a ‘hypercompetitive professional ideology’ in large American law firms beginning in the 1980s, while the reference to ‘aggressively commercial’ is borrowed from Sommerlad, ‘”Becoming” a Lawyer’ (n 63), assessing the emergence of ‘an aggressively commercial and overtly heterosexual masculinism’.
- Alice Miller, ‘Sexual rights, conceptual Advances: tensions in Debate’, work presented at the Sexual, reproductive and Human rights Seminar organised by the comité de América Latina y el caribe para la Defensa de los Derechos de la Mujer (cLADEM), november 2001, Lima, Peru, www.choike.org/documentos/alice_miller.pdf.
- On essentialism in law and legal theory, and feminist legal thought in particular, see generally radha Jhappan, ‘Post-Modern race and Gender Essentialism or a Post-Mortem of Scholarship’ (1996) 51 Studies in Political Economy 15; Patricia Monture, ‘Standing Against canadian Law: naming Omissions of race, culture, and Gender’ in Elizabeth comack (ed), Locating Law: Race/Class/Gender/Sexuality Connections (Fernwood, 2006) 73–93.
- Brooks and Parkes (n 50) 119–20 (emphasis in original). Brooks and Parkes add two additional caveats to the centering of Queer experience, cautioning against the risks of commodification and exploitation of Queer communities and emphasising that the centring of Queer experience cannot result in an expectation that Queer ‘students, staff and faculty... perform for their classmates and professors'.
- Valdes (n 13) 1422.
- the phrase ‘neutral and open’ is borrowed from Sommerlad, ‘”Becoming” a Lawyer’ (n 63) 161, where she writes: ‘[the] “self-referential ritualization” of professional history made tradition and apparent stasis central features of a professional culture which, while clearly gendered, classed, raced, and able-bodied, sought to present itself, like the law, as neutral and open. But now sober, asexual gentlemanliness has been displaced by an aggressively commercial and overtly heterosexual masculinism.’
- Law Society of Alberta, Final Report on Equity and Diversity in Alberta's Legal Profession (January 2004), www.lawsociety.ab.ca/fles/equity/Equity_and_Diversity_in_Albertas_Legal_Profession_2004.pdf. See also Final Report (n 26).
- See eg Staci Zaretsky, ‘Women Lawyers and Gender Bias: the Mommy track can Kill your Salary’, Lawyerist. com, 25 March 2011, http://lawyerist.com/women-lawyers-and-gender-bias-the-mommy-track-can-kill-your-salary; Debra cassens Weiss, ‘“Maternal Wall”, Sex Bias Block Advancement for Women Lawyers, utah Study Finds' ABA Journal, 2 november 2011, www.abajournal.com/news/article/maternal_wall_sex_bias_block_advancement_for_women_lawyers_utah_study_finds; Law Society of British columbia, The Business Case for Retaining and Advancing Women Lawyers in Private Practice (2009), www.lawsociety.bc.ca/docs/publications/reports/retaining-women-business-case.pdf at 15, discussing ‘the maternal wall gender bias pattern’; Barreau du Québec, Lawyers in Private Practice in 2021: Report of the Committee on Current Issues in Private Practice and the Future of the Profession (June 2011), 50, www.barreau.qc.ca/pdf/publications/avocat-2021-en.pdf. the term ‘mommy track’ can be traced back to tamar Levin, ‘“Mommy career track” Sets Off Furor’ New York Times, 8 March 1989, discussing Felice Schwartz, ‘Management Women and the new Facts of Life’ (1989) 4(5) Harvard Business Review 65
- Albert Gilbert, ‘Providing child-care could Alleviate Gender Inequity in Law Firms', www.lexisnexis.com/legalnewsroom/lexis-hub/b/diversity/archive/2011/06/16/providing-day-care-for-new-attorneys.aspx, citing in part John Hagan and Fiona Kay, Gender in Practice: A Study of Lawyers' Lives (Oxford university Press, 1995).
- Martha Albertson Fineman, ‘the Sexual Family’ in Fineman, Jackson and romero (n 58) 45, 46.
- craig (n 43) 223, 222–3.
- Family and Medical Leave Act [FMLA] of 1993, 29 uSc (2006).
- Ariel Ayanna v Dechert LLP, complaint, http://pdfserver.amlaw.com/nlj/AyannavDechertsuit.pdf at 2.
- Ibid, para 11.
- Ibid, para 28.
- Ayanna v Dechert, LLP, civil case no 10-12155-nMG, www.abajournal.com/fles/Ayanna.pdf. In dismissing the sex discrimination claim, the court noted, among other things, that ‘[Ayanna's] broad claims about the “macho” culture at Dechert, without any facts specifically showing instances of discrimination against him, are inadequate to support a finding that he was fred due to his gender. In fact, the record refects that female attorneys who took on caregiving roles also experienced negative outcomes at Dechert.’ Shortly before trial, Ayanna's second claim, that the firm had retaliated against him for taking leave under the FMLA (to which he was legally entitled), was settled on undisclosed terms: http://blogs.fndlaw.com/greedy_associates/2013/02/dechert-settles-fred-associates-paternity-leave-fmla-claims.html.
- Ann c McGinley, ‘Masculine Law Firms' (2013) 8 FIU Law Review 423, 438.
- Ibid, 441.
- See also Pamela Levinson v Wilmer Cutler Pickering Hale and Dorr LLP, complaint, www.abajournal.com/fles/wilmerhale_complaint.pdf. the Levinson complaint was ultimately dropped: Debra cassens Weiss, ‘Former Wilmer Lawyer Drops Suit claiming She was Fired for taking Adoption Leave’, ABA Journal (11 June 2014), www.abajournal.com/news/article/former_wilmer_lawyer_drops_suit_claiming_she_was_fred_for_taking_adoption_.
- See generally McGinley (n 81).
- See eg AA v BB, 2007 OncA 2, 83 Or (3d) 561 (Ont cA).
- See eg Frank Browning, The Culture of Desire: Paradox and Perversity in Gay Lives Today (Vintage, 1994) 156. See also Stephen Hicks, Lesbian, Gay and Queer Parenting: Families, Intimacies, Genealogies (Palgrave Macmillan, 2011); Kath Weston, Families We Choose: Lesbians, Gays, Kinship (columbia university Press, 1991) 109; craig W christensen, ‘Legal Ordering of Family Values: the case of Gay and Lesbian Families' (1997) 18 Cardozo Law Review 1299.
- Law Society of England and Wales, Law Society Survey of LGB Solicitors 2009, www.lawsociety.org.uk/representation/research-trends/research-publications/the-career-experience-of-lgb-solicitors.
- Kay, Alarie and Adej (n 10) 2, www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147494539.
- Ibid, 76 (citations omitted). See also christine Percheski, ‘Opting Out? cohort Differences in Professional Women's Employment rates from 1960 to 2005’ (2008) 73 American Sociological Review 497.
- Report of the Activities of the Discrimination and Harassment Counsel January 1–June 30, 2013 and Ten Year Report (January 1, 2003 to December 2012), tab 3.3 to September 25, 2013 Report of Equity and Aboriginal Issues Committee to Convocation at 175–6, www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/convocation_Decisions/2013/convsep2013_equity.pdf.
- Final Report (n 71).
- See ibid. Similar conclusions have been draw in the American context: see Judicial council of california, Sexual Orientation Fairness in the California Courts.
- Aaron Charney v Sullivan & Cromwell LLP, complaint, news.fndlaw.com/hdocs/docs/glrts/charneysc11607 cmp.pdf. the charney case received plenty of media attention, including a feature in the New York Times Magazine: robert Koker, ‘the Gay Flannel Suit’, 24 October 2007, http://nymag.com/news/features/28515.
- Charney complaint (n 93) para 1.
- Peter Lattman, ‘report: Sullivan & cromwell Settles with Aaron charney’ Wall Street Journal Law Blog, http://blogs.wsj.com/law/2007/10/26/report-sullivan-cromwell-settles-with-aaron-charney.
- Law Society survey of LGB solicitors 2009 (n 87) 4.
- Ibid, 16, where a respondent explains that ‘the strain of living a lie is very heavy at times, although I try not to let it affect my work’.
- Ibid, 17, noting, among other things, that ‘[o]thers suggested that covering up their sexuality had in itself caused themselves to exhibit traits which had adversely impacted their careers'.
- Kenji yoshino, Covering: The Hidden Assault on American Civil Rights (random House, 2007) 79 (emphasis in original).
- Law Society Survey of LGB Solicitors 2009 (n 87) 17.
- Staci Zaretsky, ‘Biglaw Memo From top Firm Advises that Women “Don't Giggle“, Don't “Show cleavage”’ Above the Law, 24 October 2013, http://abovethelaw.com/2013/10/biglaw-memo-from-top-firm-advises-that-women-dont-giggle-dont-show-cleavage/2.
- See eg Maggie Lange, ‘163-Point Memo Explains How to Be a Lawyer While Female’ The Cut, NY Magazine (25 October 2013), http://nymag.com/thecut/2013/10/163-point-sexist-lawyer-memo.html.
- Ibid.
- thornton (n 58) 226–7.
- clifford chance memo (n 102).
- the clifford chance directives on appearance and presentation also surface assumptions related to class that are inseparable from the gendered overtones of the memo: given that suits, heels and jewellery are generally expensive, the memo suggests that those without the means to conform will be unable to achieve success in the practice of law. See generally Deborah L rhode, The Beauty Bias: The Injustice of Appearance in Life and Law (Oxford university Press, 2010). On the class implications of this kind of sartorial surveillance, see also Beverly Skeggs, Formations of Class & Gender: Becoming Respectable (Sage, 1997) 1, where Skeggs observes that ‘[r]respectability is one of the most ubiquitous signifers of class'.
- See eg Andrea Mazza Follett, Guide to Dressing for Interviews with Legal Employers, university of Missouri-columbia School of Law, law.missouri.edu/careers/pdf/interviewdressguide.pdf, advising women students on issues including the importance of pantyhose, makeup application, avoiding ‘cheerleader ponytails' and weighing in on the ‘pantsuit v skirtsuit’ debate: ‘A skirt suit remains the most conservative choice for interviews with legal employers. Many professional women appreciate the comfort, warmth, and style of a pantsuit. However, some attorneys (men and women) do not consider pantsuits to be dressy enough for court appearances, client contact, or job interviews. you will not know if your interviewer is “pro pantsuit” or “anti pantsuit”. Accordingly, the safest bet is to wear a skirt suit to the interview.’
- Collier (n 58) 32, citing thornton (n 58) 224–5, concludes: ‘feminist scholarship has explored at some length the disciplinary controls exerted over women's dress in legal practice and law school and the multifarious ways in which women are regulated within parameters which constitute “being feminine” as, per se, a sexualized state.’ See also Devon W carbado and Mitu Gulati, ‘the Law and Economics of critical race theory’ (2003) 112 Yale Law Journal 1757, 1762, who explain how race is ‘managed’ in the modern workplace through the ‘homogeneity incentive’: ‘ to make a long story short: In order to increase effciency, employers have incentives to screen prospective employees for homogeneity, and, in order to counter racial stereotypes, nonwhite employees have incentives to demonstrate a willingness and capacity to assimilate.’
- cited in Karin Galldin and Leslie robertson, ‘Law Students challenge Problematic calls for “Professionalism”’, 7 november 2012, www.slaw.ca/2012/11/07/law-students-challenge-problematic-calls-for-professionalism.
- Queer theory acknowledges that the concepts of intersectionality and multiplicity were developed by critical race and Feminist scholars: see eg Fransisco Valdes, ‘coming Out and Stepping up: Queer Legal theory and connectivity’ (1993) 1 National Journal of Sexual Orientation Law 1, 3. For example, the origins of intersec-tionality can be traced to the work of racialised feminists in the early 1990s, including Patricia Hill collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (routledge, 1990); and Kimberlé W crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of color’ (1991) 43 Stanford Law Review 1241. craig (n 43) 215 identifies the call for multi-dimensional and intersectional analysis as a moment of convergence for feminist and Queer projects.
- Valdes (n 13) 1420. See also Angela Harris, ‘race, Essentialism, and Feminist Legal theory’ (1990) 42 Stanford Law Review 582, 608.
- Valdes (n 13) 1415 (emphasis in original).
- Ibid, 1414–15.
- Francisco Valdes, ‘Queering Sexual Orientation: A call for theory as Praxis' in Fineman, Jackson and romero (n 58) 108.
- Mari Matsuda, ‘Beside My Sister, Facing the Enemy: Legal theory out of coalition’ (1991) 43 Stanford Law Review 1183, 1189. See also Mari Matsuda, ‘When the First Quail calls: Multiple consciousness as Jurispru-dential Method’ (1992) 14 Women's Rights Law Report 297, 298–300, where Matsuda advises race and gender outsiders in legal domains to bring ‘multiple consciousness' to bear on ‘the fundamental inquiries of jurisprudence: what is justice and what does law have to do with it?’ (298). ‘Multiple consciousness' allows outsiders ‘to operate both within the abstractions of standard jurisprudential discourse, and within the details of our own special knowledge’ (299).
- yamri taddese, ‘LSuc revamps Guidance on LGBt Inclusion at Law Firms' Law Times, 4 november 2013, www.lawtimesnews.com/201311043569/headline-news/lsuc-revamps-guidance-on-lgbt-inclusion-at-law-firms. the former model policy was a decade old: LSuc, Sexual Orientation and Gender Identity: Creating an Inclusive Work Environment. A Model Policy for Law Firms and other Organizations (2004), http://rc.lsuc.on.ca/pdf/equity/sexualOrientationPolicy.pdf.
- cited in yamri taddese, ‘Discrimination in Legal Profession “not Going Away”’ Law Times, 14 October 2013, www.lawtimesnews.com/201310143526/headline-news/discrimination-in-legal-profession-not-going-away.
- Valdes (n 49) 363.
- McIntyre and Sheehy (n 2) 4.
- Final Report (n 26) paras 13(e) and 12(e).
- Law Society of British columbia (n 11).
- Ibid, 15. It is noteworthy that this was the only signifcant reference to race in the report, except for a brief explanation at note 1: ‘the task force also recognizes that Aboriginal women lawyers and women lawyers from diverse communities have specific additional concerns that need to be addressed. While the task force did not examine these concerns in detail, law firms are urged to consider the research that has shown the negative and combined effect of hidden biases regarding gender and race as it impacts lawyer retention.’
- Sherene razack, ‘Beyond universal Woman: refections on theorizing Differences among Women’ (1996) 45 University of New Brunswick Law Journal 209, 209.
- Matsuda, ‘When the First Quail calls' (n 115) 299.
- Valdes (n 110) 11.
- Oswald et al (n 64) 1.
- Ibid, 1 citing Dorothy Smith, ‘the Standard north American Family: SnAF as Ideological code’ (1993) 14 Journal of Family Issues 50.
- As noted earlier, the phrase ‘view askant’ is borrowed from Leckey and Brooks (n 43) 2.
- See eg Michelle Silverthorn, ‘Is there a non-Business case for Diversity?’ Pro Say Blog, 10 October 2013, http://blog.ilsccp.org/is-there-a-non-business-case-for-diversity.
- the term ‘business case’ is common in the ‘retention of women’ discourse: see eg Law Society of British columbia (n 11). the conventional use of the term tends to focus solely or predominantly on the negative financial consequences for firms of women leaving the practice of law. Much of the rhetoric around the ‘business case’ for retaining women in the legal profession is consistent with broader initiatives making the business case for increasing diversity in the legal profession across a number of differentials beyond gender, including race. See rhode (n 12) 1060–5, discussing how, starting in the late 1980s, ‘minority bar leaders began a series of initiatives to increase diversity in corporate law firms'. See also the Business case for Diversity research Project, spearheaded by the American Institute for Inclusion in the Legal Profession, www.theiilp.com/caseforDiversity; Heather Greenwood Davis, ‘the Business case for Diversity’ Lexpert, April 2007, www.weirfoulds.com/fles/1733_Lexpert_Diversity_FEW-rA_Apr07.pdf.
- Final Report (n 26) 5.
- See eg William r Keech, Michael c Munger and carl Simon, ‘Market Failure and Government Failure’, paper submitted for presentation at the Public choice World congress, 2012, Miami, http://michaelmunger.com/papers/keechmungersimon.pdf, noting that ‘market failure has been defined with respect to a very particular Archimedean Point: the equilibrium that would exist if somehow the assumptions of perfect competition were met’.
- references to a ‘leaking pipeline’ of female talent are commonplace in the ‘retention of women’ discourse. See Law Society of British columbia (n 11) 4, stating: ‘Despite the hopeful perception that this disparity will resolve itself over time as more women progress through the legal pipeline, in reality the pipeline is leaking lawyers—women lawyers in particular.’ See also timothy O'Brien, ‘Why Do So Few Women reach the top of Big Law Firms?’ New York Times, 19 March 2006, www.nytimes.com/2006/03/19/business/yourmoney/19law.html?pagewanted=all&_r=0, concluding: ‘... the pipeline has been gushing for about two decades and partnership disparity remains'. See further ‘A Leak in the Pipeline: retaining Women in the Legal Workplace’, panel discussion, university of Denver, uSA, 5 April 2011, http://alumni.du.edu/s/1150/interior2013/index.aspx?sid=1150&pgid=1640&gid=1&cid=2683&ecid=2683.
- catalyst, Beyond a Reasonable Doubt: Building the Business Case for Flexibility (2005), 9, www.catalyst.org/knowledge/beyond-reasonable-doubt-building-business-case-fexibility.
- Ibid, 10–12.
- For materials citing the $315,000 fgure see Oliver Bertin, ‘Firms Prepare to Meet Associates' Work-Life Demands in Light of Survey’ Lawyers Weekly, 1 April 2005, www.lawyersweekly.ca/index.php?section=article&articleid=63; Janice Mucalov, ‘Family Values' The National, June 2005, www.cba.org/cBA/national/jun05/cover.aspx; Equity and Aboriginal Issues committee, LSuc, ‘report to convocation’ (23 March 2006), 16, www.lsuc.on.ca/media/convmar06_equity_report.pdf; retention of Women in Law task Force, The Business Case for Retaining and Advancing Women Lawyers in Private Practice (n 11) 6; rt Hon Beverley McLachlin, Pc, chief Justice of canada, ‘How Do We Support Women who choose a Law career?’, remarks delivered at the Panel Discussion for the canadian Bar Association's national Women Lawyers Forum and Standing committee on Equity, calgary, 14 August 2007 (unpublished).
- Law Society of England and Wales, Obstacles and Barriers to the Career Development of Woman Solicitors (March 2010), www.lawsociety.org.uk/advice/articles/diversity-survey-results.
- Linda Bray chanow, ‘the Business case for reduced Hours', Project for Attorney retention, center for WorkLife Law, university of california Hastings college of the Law.
- Law Society of British columbia (n 11) 4.
- Ibid, 5.
- Final Report (n 26) 31–32. For other canadian examples, see eg Joint committee on Equality, Equity, and Diversity of the Law Society of Alberta, Final Report on Equity and Diversity in Alberta's Legal Profession by Merrill cooper, Joan Brockman and Irene Hoffart (calgary, 2004) at 3. For a discussion of how the business case for diversity plays out in the American context, see rhode (n 12) 1060–4.
- See rhode (n 12), observing that advocates for the ‘business case’ rely on a variety of evidence, including ‘social science research suggest[ing] that diverse viewpoints encourage critical thinking and creative problem-solving; studies finding ‘a correlation between diversity and proftability in law firms as well as in Fortune 500 companies'; research drawing ‘on signaling theory to argue that diversity conveys a credible commitment to equal opportunity and responsiveness to diverse stakeholders'; and ‘increasing numbers of corporate clients... making diversity a priority in allocating work’. See also Law Society of British columbia (n 11) 5, citing ‘increased pressure from clients to have greater representation of women’ and stating that ‘[w]omen are good for business and increase the corporate bottom line... [and] are a signifcant portion of top talent’.
- Final Report (n 26) Executive Summary.
- Law Society of British columbia (n 11) 6–7.
- reichman and Sterling (n 12) 924–5. See also Webley and Duff (n 12) 3, discussing ‘human capital theory... [as] the dominant theory that seeks to explain how women are responsible for their own lack of progression and promotion’.
- rhode (n 12) 1048–9. the frst panel, rhode notes, resulted in ‘a threatened boycott’, which in turn ‘prompted a change in the composition and focus of participants'.
- Ibid.
- Diana Majury, ‘Women are themselves to Blame: choice as a Justifcation for unequal treatment’ in Fay Faraday, Margaret Denike and M Kate Stephenson (eds), Making Equality Rights Real: Securing Substantive Equality Rights under the Charter (Irwin Law, 2006) 209.
- Final Report (n 26) Executive Summary.
- Law Society of British columbia (n 11) 11.
- LSuc, Retention of Women in Private Practice: Status Report (2012), www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=2147489485.
- this quote and the one that follows are extracted from an article by Brenda cossman in which she analyses the discussions about the ‘opt out revolution’ that emerged following the 2003 publication of Lisa Belkin's article ‘the Opt-Out revolution’ in the New York Times (Brenda cossman, ‘the “Opt Out revolution” and the changing narratives of Motherhood: Self Governing the Work/Family confict’ (2009) 2 Utah Law Review 455, 473). While acknowledging ‘this obfuscating effect’ of the discourse of opt out revolution, cossman also argues that the rhetoric of choice should be taken seriously and that the discourse ‘can be usefully understood in the register of self-governance’ (at 408). An analysis of how this prescription could play out in the context of contemporary discussions of the retention of women in the legal profession is beyond the scope of this article but would be interesting to explore.
- cossman, ibid, 474.
- Valdes, ‘Sissies' (n 52) 366.
- craig (n 43) 214.
- carrie Menkel-Meadow and Shari Diamond, ‘the content, Method and Epistemology of Gender in Sociolegal Studies' (1991) 25 Law & Society Review 221, cited in Skordaki (n 35) 7.
- Wald (n 12).
- Ibid, 2246.
- Webley and Duff (n 12) 6.
- Jordan Furlong, ‘the Decline of the Associate and the rise of the Law Firm Employee’ Law21.ca, www.law21.ca/2013/10/decline-associate-rise-employee.
- Ibid.
- Karen Selick, ‘Bamboozling canada's top Legal Minds' (2007), www.karenselick.com/nP070913.html. the catalyst report from which the $315,000 price-tag arises notes that the average firm's break-even point on an associate is 1.8 years, although this number can vary widely from firm to firm: catalyst, Beyond a Reasonable Doubt (n 134) 15.
- Leckey (n 14) 744, drawing on Eve Kosofsky Sedgwick, Epistemology of the Closet (university of california Press, 2008) 27.
- Janet Halley, ‘The construction of Heterosexuality’ in Michael Warner (ed), Fear of a Queer Planet: Queer Politics and Social Theory (university of Minnesota Press, 1993) 82, 83. See also Leckey (n 14) 744–5, noting the importance of Queer theory in illuminating the ways ‘in which the majority constitutes its position of privilege and its identity through its definition of a minority’.
Legal Ethics
Volume 17, 2014 - Issue 2