When we look at one of the biggest elephants in the room for the legal industry it’s still diversity and inclusion. But an even bigger elephant in the room are the identities that don’t get discussed in the diversity conversations, which are the ones that built the structures we are trying to change.
Efforts that are solely focused on less privileged identity groups still don’t get at the root of the problem. How our workplaces are structured and how ‘success’ at work is defined is still driven by metrics that privilege white middle class men. It’s not necessarily their fault, individually or collectively, as we all inherited the structures and ways of thinking but it remains that unless we can all rethink different structures then any change will merely be window dressing. Isn’t it simple, we just need equality. But there’s the rub. As the apocryphal saying goes: “When you're accustomed to privilege, equality feels like oppression.”
(No one seems it be able to quite figure out the provenance of this quote, but the sentiments certainly ring true.)
What we often don’t interrogate in examinations of our industry are the multiple assumptions of masculinity, whiteness and class privilege.
In law as in life what happens is these power structures are largely invisible, and aren’t interrogated and that’s how they retain their power.
Witness the furore when Channel 4 news anchor Jon Snow recently described a pro- Brexit March as the largest gathering of white people he had ever seen. What many of the objections centered around was his use of ‘white’ as a descriptor. Myriam Francois writing in The Guardian describes how the roots of the white race are explicitly situated in a power struggle to sow discord amongst the servant class.
“In The Invention of the White Race, Theodore Allen explains that the 'white race' was a notion created by the ruling class in 17th-century America as a means of exerting social control. At the time, indentured servants, both black and white (Africans and poor European), had joined together in a rebellion. Much like efforts today to cordon off the white working class from the wider working class, racial categories were used to undermine class-based solidarity, effectively ensuring African Americans would be excluded.” See full article here
What can be significant in driving true change is understanding the nature of power, how it was created and how it works. Queer theory can be helpful here. Queer theory was devised 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 centered around one dominant viewpoint; as well as how these norms came into being and why. Essentially by examining say white mascul8nity 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.
Organizing categories in which every identity, which is not the dominant is only seen in relation to the dominant identity are insufficient; they don’t explain the range of experiences that create identities. There’s a lot of cross over with intersectionality; both queer theory and intersectionality look at how identity and power in relation to how identity is constructed.
Thus focusing on the separate identity needs of women lawyers or black lawyers is always doomed to failure in creating real change as it plays around the key structures in which discrimination is embedded rather than breaking them.
By trying to understand what masculinity means for example can start to cut through and question some behaviours associated with it that impact and can be displayed by all lawyers, majority or minority. For example the ‘macho’ culture around long hours being a badge of honor and a symbol of success. Or all the associated connotations in saying a phrase like ‘man up’, such as not showing feelings or vulnerability. If we look at privileged identity in the legal profession, as elsewhere, it’s a construct that changes over time. It was not so long ago that Jewish lawyers were ostracized from many firms and therefore ended up founding their own firms, many of which are now leading our profession.
It’s very necessary to think about how we define the profession at the moment. As we examine innovative delivery of law and the profession of the future , it’s also key that it’s a diverse future. So it’s great to see initiatives like She Breaks The Law and The Bionic Lawyer doing this and making inclusive perspectives part of their taxonomies.
Change is possible and not everyone will sign up for it. But what‘s a great starting point is dragging into the light behaviors and ways of thinking, which are ‘just the way things are.’ So the next time someone uses the excuse, ‘that’s the way we have always done things’, rather than accepting this we need to ask ‘why?’
It’s really hard for all of us to uproot many of these deep seated preconceptions about what work looks like and it runs much deeper than a session of unconscious bias training.
It needs a constant queering, a throwing into relief of what we assume is normal to force our own brains to imagine different and help communicate what a different future would be.