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Examining masculinity – the new frontier for diversity and inclusion in law?

Diversity and inclusion in the law is always a current topic – the industry is still dominated by viewpoints which are generally white, male and cisgender. But this is the one form of identity which is rarely discussed in a diversity and inclusion context. The challenge with many of the changes we are seeking to make as a profession is that the very structures we are seeking to change are themselves built upon a system which assumes masculinity to be the normal state of affairs. Patriarchy as a system is created by all of us and this is something which we need to explore. In my article, I consider the ways in which tropes of masculinity are reinforced in the profession by discussing with three male general counsel their own relationships with their gender identity in a professional context. We also discuss how they have used their own experiences to act as more inclusive leaders. We hear a lot about diversity and inclusion in the law and the way that the practice of law has to change to accommodate certain groups, but one form of identity, which is rarely discussed in this context, is masculinity. The challenge with many of the changes we are seeking to make as a profession is that the very structures we are seeking to change are themselves built upon a system which assumes masculinity to be the normal state of affairs. And not just masculinity but straight white middle-class masculinity – to quote from my coffee mug, which itself paraphrases Jay-Z: “I got 99 problems and white heteronormative patriarchy is basically all of them!” But while the coffee mug certainly starts a discussion, it also makes this an ‘us and them’ problem, which is not a helpful way of looking at things. Patriarchy as a system is created by all of us and this is something which we need to explore and has been becoming a more focused area of exploration. But this raises the spectre of men’s rights and the notion of straight white men as a persecuted group in a new #MeToo reality. Frankly, that’s a threat which has been cited numerous times and has never come to pass. But I believe there can be a true value to all of us in understanding the structure which surrounds all of us and conditions many of our behaviours and responses – this is really the best way to be able to change those responses. In the light of the Covid-19 crisis it will also be interesting to see if some of the norms around the workplace and working practices which are rooted in the privileging of a certain identity still prevail as we return. Gender versus sex at work The challenge with assumptions around masculinity that most of our social systems are based on is that masculinity is often being coded in a very specific way. This way of understanding what it means to be a man and therefore the presumed subject of discourse sometimes leads to iterations of this identity which are quite toxic. Indeed, the elephant in the room for many of the recent discussions around wellbeing and mental health at work in law is the presumed model of masculinity which is still being played out in the legal profession. Judith Butler’s 1990 book Gender Trouble looks at the notion of gender as a social performance. In this book she differentiates between biological sex and the social codes of being masculine and being feminine. Ultimately, Butler’s argument was that we may be born a certain sex, but we continually perform our gender. Unfortunately, for much of history we have been confined to a framework which seemed to be only binary-male and female. (Although careful exploration sees many examples throughout history where this norm is questioned, it is not as stable in meaning as we might think.) Today, many of the traditional performances of gender in society are being questioned, and Judith Butler’s notion of performativity of gender is being embraced by younger generations as ‘normal’. But it seems that our understanding of gender being played out in workplaces is in many ways lagging behind. And it’s still trapped within the binary matrix of male and female – a binary relationship in which the male is still privileged. While many aspects of Butler’s thesis have been questioned and challenged over the years, there is a certain logic to her ideas. Personally, I don’t often feel like a woman, although I am cis gender. Mostly I just feel like me – whatever that means. Sometimes I can feel myself amping up my femininity and at other times downplaying it. Where then does my true gender lie? It’s interesting that moving from the more bohemian environs of academia, theatre and the art world into the world of law led to a reconsideration of my performance as a woman. In times when I have felt discriminated against, I cannot help but recall Simone De Beauvoir’s ideas in The Second Sex of women having femininity thrust upon them. And I’m sure for many women the challenge of dressing the ‘right’ way in the morning for work can often involve a number of subtle subconscious debates about which version of femininity we are performing today. For me that always calls to mind RuPaul’s pronouncement: “We’re born naked and the rest is drag.” But the obvious association with drag is male-to- female drag but there are now female-to-male drag artists and female-to-female drag artists. The latter reflecting the performativity of the gender which is at the heart of the construct of being a ‘woman’. But what about the performance of being a man? Isn’t our own profession of law and many of the other key corporate professions built upon a performance of masculinity which is enacted by both men and women? Butler’s work in Gender Trouble became very influential in establishing queer theory as an academic discourse. Queer theory emerged in the 1980s and 1990s. As the name suggests, much of the thinking came from LGBTQ+ scholars looking to interrogate the way in which queer subjects were negated from most mainstream discourse or negatively portrayed. Queer theory is used as a lens or tool to deconstruct the existing social norms and taxonomies centred around one dominant viewpoint, as well as how these norms came into being and why. Essentially, by examining say white masculinity as an identity group it also shows how it was constructed, the power structures behind this construction and that it’s an identity like any other. This is a man’s world? When I used to teach drama, for a couple of years I ran a course on theatre and gender. This was wide ranging covering modern feminist play texts, Elizabethan boy actors and queer performance art. What was interesting was that, as an elective, it was mostly female students who took it. There were one or two exceptions. The reason cited by most male students who didn’t was that “it looks interesting but isn’t it all about women?”. But there are, even in a conventional understanding, at least two genders. Interestingly, some of the most exciting weeks of teaching were the weeks when we looked at the performance of masculinity. I think the reason for this was that once you begin to deconstruct masculinity it starts to reveal the weaknesses in many of the assumptions built into how we have been conditioned to think the way things should be. In my current life, where one of my areas of focus is diversity and inclusion, it has always amazed me how many practices around promoting greater inclusivity and diversity do not try and question the systems which are producing the inequalities but focus primarily on the groups which are underrepresented. I think what can be hard to realise is how many practices which we think are unbiased are actually coded with an understanding of the world which privileges certain viewpoints. It’s certainly much harder to see that if you are in one of the groups that is privileged. I decided to research how masculinity is coded in the law by asking three men in the profession about it. I know all three well and they identify as straight white men but I also knew they are very aware of many of the social constructs which shape our personal and professional lives. I had a discussion with each of them about the way they and their professional lives had been shaped by codes of behaviour deemed ‘masculinity’.

Starting young: boys don’t cry Too many boys are trapped in the same suffocating, outdated model of masculinity, where manhood is measured in strength, where there is no way to be vulnerable without being emasculated, where manliness is about having power over others. They are trapped, and they don’t even have the language to talk about how they feel about being trapped, because the language that exists to discuss the full range of human emotion is still viewed as sensitive and feminine. (Michael Ian Black, “The Boys Are Not All Right”, New York Times.)

For most of us, the constructs around gender start young. They are passed on to us by our parents, our caregivers and our surroundings – particularly our toys. Arguably, toys have become more and more gendered over the last 20 years. It’s also crucially through turns of phrase, phrases which we may be unthinkingly repeating even now. A few months ago, when

my son, who is seven, fell over and started to cry, I almost found the words, “Boys don’t cry”, coming out of my mouth. Where had that phrase come from? It seemed to almost bubble up out of my subconscious. But it was certainly a phrase I heard a lot growing up in the 1970s and 1980s, reinforced so much by this casual occurrence to seem like a universal truth. It’s these subconscious utterances that can have lots of power in shaping our belief systems. For Kenny Robertson, general counsel for outsourcing, technology and IP at RBS, the phrase ‘man up’ has become a bête noire. He shares that over the last few years he has become very aware of all the associations for men of using such words and how this normalises a certain view of masculinity. It’s certainly one that growing up in the west of Scotland he has had many opportunities to study. For Robertson, the biggest issue in the notion of masculinity for many young men is that it doesn’t allow you to share, be emotional and be vulnerable: I grew up in the West of Scotland in the 1980s, where the culture was very much men are men: you suck it up; you don’t share vulnerability and you don’t share emotions. As a result, suicide rates among men are horrendous. Don’t share and don’t show emotions is an incredibly corrosive lesson, particularly when it is reinforced casually by phrases uttered without thinking. Bjarne Tellmann is now general counsel at Glaxo Smith Kline Consumer Healthcare; when we spoke for this article he was still chief legal officer at Pearson so his comments pertain to Pearson. Bjarne has a slightly different relationship with such childhood phrases, partly as a result of being brought up in different cultures and then spending a lot of his formative years learning martial arts: In Norway the notion of ‘man up,’ never resonated. The phrase I identified with was more about being a warrior; as a young person I did lots of martial arts and there were lots of strong women on my teams. What was also interesting about this notion of the warrior was that in Scandinavian cultures it could be men or women; a recent Viking find that they assumed was a male warrior turned out to be a woman. Tellman admitted that as he grew older and moved into professional life, being a man was associated with lots of the same qualities as being a warrior, such as forging ahead, displaying courage and making tough decisions. Where it became more problematic was some of the cultural and professional behaviours that also became associated with being a man. For Barry Matthews SVP General Counsel (UK and EMEA) at Meggitt plc and founder of the charity the Social Mobility Business Partnership, it starts with the role models for masculinity you are seeing growing up as a man. If that’s someone who is conforming to a particular view of masculinity or is largely absent, that can lead to men having problematic relationships with their own masculinity. Matthews feels lucky that his father was truly a role model and not fixated on one version of masculinity: He never told me to man up but told me to look after people. Latterly he has been a great person to model myself on in terms of being a dad and a husband. He is a lovely and understated man and complete antithesis of me. Whilst struggling with redundancy and unfair treatment at work he never once snapped and sought out low paid work to keep food on the table. But the notion of being the provider puts a certain amount of pressure on men within that role. It can also get caught up in some negative assumptions in workplaces – mainly that men would need their jobs more than women; women would stop working after having children; men wouldn’t take paternity leave or be more present with their children. These assumptions are beginning to change in some ways but in many ways the status quo is still present. Despite the availability of shared paternity leave in the United Kingdom, uptake has been as little as 2%; while some of this is due to the complexity of the system, a large part is also attributed to the fact it is seen as strange or unmanly to do so. There’s also the fear of professional repercussions. Anecdotally, I have heard of associates at law firms being told it may be not be a good idea for their career prospects to be a more present father. All of the men I interviewed for this article shared that, from their perspective, there were a number of negative behaviours associated with professional success and often personified by successful male lawyers that can lead to some very toxic masculine behaviours.

The machismo of corporate law Much of the way that we code success in the workplace is still codified as masculine in its determining concepts and language. For example, in law the cult of presenteeism is still alive and well. The machismo of being able to work long hours and late nights culminating in the ultimate challenge of the ‘all-nighter’ is what separates the ‘men from the boys’ or the men from the girls. This challenge presumes no family ties or responsibilities or if these are there, they are being maintained by someone else. In many ways in corporate areas of law the worship of long hours and cult of presenteeism has been very much driven by clients. Bjarne Tellmann started his career at two big US law firms. He feels that in the 1990s there was definitely a very macho culture in law and that this was driven by the ascendency of the investment banks as major clients: In the early years of my career 23 years ago it was very much an environment that worshipped that macho culture. It was all about trying to emulate the investment banking world. It was a culture that worshipped staying up all night and drinking hard but showing up fresh faced at 9am the next day. It was a culture that didn’t loose conflicts and worshipped people who were all no holds barred. The downside of such a view of the workplace is that it doesn’t take into account anything or anyone outside of the workplace, explains Bjarne: “There was no conception of family raising or work-life balance”. This machismo was also not just something that had to be emulated by actual men but became the blueprint for success at work. “Women had to emulate that same machismo, in some cases women were more manly than the men and there was almost a reverse pride in behaving like a man.” This last point shows that unless we deconstruct the constructs and assumptions which have created a certain work culture, which for the most part are based on the assumption of a certain type of masculinity, we are telling other identity groups that you have to emulate these characteristics to be successful. Some of that may also be linked inextricably to the transactional nature of the work. Success in law firms is billing the most and making the most profit for the firm. The rankings of profit per equity (PEP), slavishly followed by most large law firms, are predicated on a certain phallic desire to be the biggest and the best. For some clients, the very structures on which law firms base themselves – equity partnerships driven by billable hours – make a rethinking of many of the masculine codifiers of success nearly impossible. Kenny Robertson at RBS feels that this focus produces a notion of being successful which can then mitigate against really working with clients for longer-term value: I think a lot of it rests in the way that firms pay themselves: the billable hour is king and the number of hours billed per year. I am bored of saying this to firms, but what I try to get across, is that in the race to monetise everything immediately, the link between doing something and getting a return for it precludes collaboration. I want someone who is decent, who gets us and is allied to our values, I don’t want someone testosterone fuelled telling us about how good they are. Robertson admits that while there are some glaring examples of transactional behaviour, there are lawyers who demonstrate more emotional intelligence and he will be drawn to those. But part of the problem is that the system in which particularly law firm lawyers work was created at a particular point in time with particular values about success. This means that lawyers who may want to work in a different way, even law firm leaders who want to shape a different culture, may be literally battling against the system. That’s certainly what Bjarne Tellman sees as a fundamental problem: As a client I sense that many law firms are structured in a way that makes it hard to change these intrinsically masculine values, such as staying up at night to get a deal done: they talk a good game but there is not the ability because of the pressure of the billable hour. I think it’s more about structural inhibitions than lack of willingness. Big, high vale, politically powerful practice areas mean it’s out of your control even as a client, when you have a business model that rests in abusive working practices. But do we even need those working practices as much as many law firms and their lawyers might think we do? One result of the current (at time of writing) Covid-19 crisis and its lockdowns is that, despite the unthinkable, things are still getting done. How much are some of the machismo working practices and markers of success actually necessary? Barry Matthews who started his career in a corporate practice in a law firm witnessed posturing around who can work the longest and the hardest: In my early career in private practice there was definitely regular expressions of bravado centred on ‘getting the deal done even if it takes all night’. It inhibited those with caring responsibilities being part of the team getting the deal done. I can think of certain instances where time was wasted during the day and then got the deal through at 4am. It could have done it done quicker with good project management, but the senior team wanted to push it to the wire to look good.

Toxic masculinity “Doesn’t money make you horny?”, asks Jennifer Lopez as Ramona Vega in Lorene Scafaria’s 2019 film Hustlers. Scafaria’s film expertly dissects the link between displays of masculine success and sexual behaviour. In the strip club setting there’s a sense that the biggest performance is of the men to each other, exemplified by the practice of raining money on a dancer while on stage – that’s as much about saying to the rest of the male audience that I am the most successful as it is to showing appreciation to the dancer. Being successful means working hard but working hard can mean blowing off steam to lessen the stress. If you are looking to celebrate but feel you are privileged, this can lead to a toxic cocktail of behaviours. Scafaria’s film focuses more on investment bankers as the personification of this but, as Bjarne Tellmann explained earlier, the masculine behaviours of investment bankers were then mirrored by many of their service providers: There was an element back in those days of some of these masculine behaviours being unsavoury. There was a period that it was expected that you went to strip bars to lap dancing clubs and that it was a male bonding experience and you could see people were uncomfortable but if you didn’t do it you wouldn’t be part of the crowd. It wasn’t the law firms so much, it was the banking set, but lawyers had to be part of that. The work hard culture in law firms, where certain masculine behaviours are celebrated, can have a very negative side and this can be further compounded by the ‘star culture’ where certain partners are seen as untouchable. This is seen in many of the #MeToo situations, from the well-trodden to the unknown. What drives many of these assaults is male privilege and a sense of ‘I deserve this’. There’s a link here to bad behaviour being accepted as a reward for working hard. The star culture in many law firms has led to a reckoning for some bad behaviours but not all. As Kenny Robertson explains: “over the years I have heard about behaviour which has made me wince. I think the architecture of law firms and the concept of rainmakers can create an unhealthy culture where conduct can go unchecked”. Those stories are, sadly, backed up by data. The IBA produced its Us Too report last year which found that out of their almost 7,000 respondents from around the world at work, one in two women had been bullied and one in three men, whereas one in three women had been sexually harassed and one in 14 men. Robertson thinks that what needs to be addressed is the template for success that is being propagated in the legal industry: The issue which can be dangerous is for young men seeing that to be successful you have to be a particular type. You see male and female lawyers adopting this testosterone fuelled persona because they think that’s what success is. I think a lot of this is learned behaviour. Identifying biases and ways of thinking which might create certain cultural norms, whether toxic or not, is one thing but how can you actually change these? If young lawyers come into a team dominated by a particularly successful lawyer – a rainmaker or someone who has important client relationships – if that lawyer’s behaviour creates a culture which is aggressive or innuendo fuelled, it’s the case that those in the culture will either emulate this or ignore it, feeling they cannot do anything to change it. As we reflect on many of the most high-profile cases which came to light as a result of #MeToo, a reckoning is needed not just for the bad actors but for the cultures where certain behaviours were tolerated and a blind eye turned to bad behaviour. For Kenny Robertson, it’s also about creating a culture where all team members including men can also be vulnerable. This, he feels, is a vital component in ensuring there is adequate emotional intelligence – that’s a quality that he feels is still lacking. In many service providers in the industry: I do not see EQ being demonstrated or prioritised to the extent it should. I would like to see more sharing of failure and the promotion of psychological safety by law firms.

Making the change But how can legal leaders, whether they are male or female, ensure their teams don’t have toxic masculine assumptions defining what ‘good’ looks like and potentially shutting down a more inclusive culture? Identifying biases and ways of thinking which might create certain cultural norms, whether toxic or not, is one thing but how can you actually change these? As identified by the United Nations regarding gender disparity, it’s those who occupy positions of power and decision making that are crucial to making the change. How did the three male allies and leaders I spoke to consider were the best ways to make a lasting change? For Bjarne Tellman at GSK, formerly at Pearson, it’s very much changing the balance: “Pearson is unusual as a majority female company”, meaning that: “Toxic masculine behaviour would be unacceptable at the board room and at the senior levels”. However, like many companies, its majority female workforce becomes much more diluted in more senior ranks, meaning that vigilance around how behaviours might be perceived is still needed. Regarding his own team: “The biggest part of it has been getting more women in the team and it just smooths it out. That means we are very conscious about gender and diversity. We do a lot of training around biases and micro-biases and gender intelligence.” Gender Intelligence caused some controversies as it suggests men and women’s brains are wired differently by looking at MRIs and it suggests that this is why women have a different way of approaching things. The Gender Intelligence Group which trains organisations to recognise and utilise the different natural mindsets of men and women, feels that a significant aspect in the imbalance of the genders in leadership is down to not understanding the different ways that men and women think. Appreciating differences and valuing different approaches is what Bjarne feels helps to create a more inclusive culture – recognising that different people approach problems in different ways is just one tool which helps his team think in a way that values what diversity of thought brings. More broadly, Tellmann feels that demonstrating to society and the profession that there is a problem and getting them to recognise the scope of that problem is the first step: I do think that step one in all of this is creating enough of a sense of crisis that people are willing to listen and realise we have a problem. I don’t think you get that willingness to listen until you are in a crisis, so in that way the #MeToo movement gave people a shock and forced them to consider this. It can be a challenge for leaders, he admits, particularly when you have multigenerational and cross-cultural teams: There will be some behaviours that are just beyond the pale but there will be behaviours that are more nuanced. How can you assess what’s right there? We do still want diversity of thought: I want someone who is task orientated as well as contextual. It’s really about collaboration and respect. What Tellman believes is key is that leaders don’t prioritise one set of gender traits over another: There’s a legitimate set of masculine values and a legitimate set of female values: it’s not about inherent male behaviour it’s about leaders not tolerating someone being a jerk. I think, as leader, we need to be very capable about distinguishing between inherent gender traits and bad behaviour. What is most helpful in doing this, he feels, is creating a culture with open communication and one where people feel psychologically safe and can also ask questions and be educated: “It’s key for leaders to build a platform for discussion among decent people who want to do the right thing but may be ignorant about it.” Kenny Robertson at RBS also believes having a robust culture, where employees of any identity group can feel safe and valued, is central to ensuring healthy attitudes towards what masculinity means in the workplace. What’s central for him is ensuring that his behaviour as a male leader role-models the sort of cultural values that he wants in his team: We do a lot of coaching in the team, and not just top down but reverse coaching. The trainee we have in the team will coach me and her perspective is really interesting as to how I come across. My PA will coach me and that’s so valuable as it shows me how I can come across as a leader. What’s significant in this exercise is that Kenny can see how behaviours he might not have noticed may be perceived by others. Secondly, this openness, where the leader is willing to take regular feedback from reports, has created a general culture of openness and safety within the team that means that everybody thinks their voice is valued. That’s key in curtailing bad behaviours; in many well-publicised cases of toxic masculine values becoming the norm in a culture, these behaviours were often recognised but many who might have wanted to speak up felt they could not because their voices would not be listened to. The lack of a solid organisational cultural grounding can be challenging, Robertson feels, for many men to find either in their professional or personal lives. For him it all goes back to culture. In terms of suppliers like law firms, he feels that it’s incumbent on clients to speak up when they see unhealthy behaviours: I have given feedback and it’s important to do so, as it’s not in our interests to accept behaviour in suppliers that RBS wouldn’t accept from our own employees. For example, I saw one law firm partner speak to his assistant in a really demeaning way and I said to him afterwards that this was not OK. If we, as clients, don’t say something we are unconsciously endorsing this behaviour by putting our money behind cultures that support this.

There’s another important aspect to overlay all of this – being able to show empathy for the challenges that men can face. That seems like an incendiary comment in many ways, however, all my male interviewees felt that the elephant in the room in many ways with discussions around mental health in the legal profession was the challenges felt by men regarding this. Going back to the points made by Kenny Robertson about culture, it’s often cultural cues which can stop men speaking out about challenges. That can be much bigger than work as many of these notions can be instilled from childhood: ‘be a man’; ‘boys don’t cry’; ‘take it like a man’ etc. Kenny Robertson’s team at RBS has worked with Cat Moon of Vanderbilt University Law School in Nashville on accepting failure via a concept called ‘failure camp’. For Kenny, it’s important that his team see that he is not infallible and that he, and the other men on the team, can show emotions: I want males in my team to be comfortable sharing and not feel compelled to maintain a stiff upper lip. It may sound small but questioning the assumptions contained in even small phrases like ‘be a man’ contributes to how we view men and women in the workplace. For Barry Matthews, as a long-time campaigner for greater social mobility in the profession, it’s key for leaders to develop cultural approaches which look at the whole person: Bad behaviours are born out of ways of thinking that don’t take into account the whole person. It’s about as a leader, encouraging yourself and those you work with to start with the whole person and understand someone and their background and motivation: the layered nature of all human beings. That means as a leader you have to have the emotional intelligence to adjust your style. This article originally appeared in Modern Legal Practice July 2020. Published by Globe Law & Business.


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