Homophobia in the Legal Profession

LGBT Progress?

In February 2021, The Law Society published an article on ‘magic circle’ trainee, Justin Farrance. The article was called ‘Coming Out: My Journey as a Junior Lawyer’. It was written from Farrance’s perspective, detailing his trajectory to coming out both in his personal life and in a professional context to his colleagues. Farrance is currently a Social Mobility ambassador, and founder of the charity ‘Grow Mentoring’ which partners young people with structurally disadvantaged backgrounds to lawyers practicing in their area of interest.

In short, Farrance is a champion of legal diversity, not least because his own experiences have informed his viewpoint that ‘everyone’s diversity is their strength’. For the A&O trainee, coming out was imperative as he explains that hiding his identity was simply not ‘sustainable’ – a crucial phrase that bears deeper consideration.

While Farrance thoroughly agrees that his sexuality has not held him back in his career development, the situation might be somewhat different for British lawyers who practice outside of the UK. His novel initiative, GROW, was launched in a single weekend- but can it undo the long history of homophobia in the culture of some traditional law firms, and the private clients, organizations and even countries that they work with?

Homophobic Laws Around the World

According to Human Dignity Trust, 71 jurisdictions across the world have explicit anti-gay legislation.  The majority of these countries penalize sex between men as a matter of law. Additionally, 43 jurisdictions have a documented history of persecuting lesbian and bisexual women, despite the lack of legislation that prohibits sex between women. Finally, 11 jurisdictions legislate the use of the death penalty for homosexuality. Some notable countries with anti-homosexuality laws include: Egypt, Morocco, Iran, and Saudi Arabia.  

Yet, this has not hindered law firms from setting up practices in areas that have such draconian, inflammatory laws. Major law firms like Clifford Chance and Allen & Overy have opened offices in Morocco, as have Dentons and Norton Rose Fulbright. Linklaters is a leading international law firm with offices in Saudi Arabia; other law firms based in the area include Latham and Watkins LLP and Baker McKenzie.

Lawyers who are not LGBT may consider the statistics that show the entrenchment of homophobia in foreign countries to be mere numbers. But they are not affected in any practical or psychological way by these laws. For LGBT lawyers, working in areas with anti-homosexuality laws can be a terrifying prospect. They may feel pressured to either ignore or simply accept that the country they are going to on secondment will not recognize their same-sex marriage as valid, or that their private life can become, by definition, illegal in the country they are working in.

It becomes even scarier for gay lawyers to consider if their clients, which may include governmental bodies, share the same homophobic views that are legitimized in their country’s courts of law.

Responsibility of Law Firms

It is important not to place the responsibility, or rather blame, of a country’s homophobic laws on the law firms that are practicing within the country. The chief purpose of this article is to begin a conversation about how working in countries with homophobic laws can have intense, adverse psychological effects on LGBT lawyers. There is likely no correct answer to how law firms can tackle this issue: it is as unlikely that one law firm can mount a serious challenge to a country’s legal system as it is to consider that an alliance of international law firms can place enough pressure on a foreign government to be more inclusive in their legislation. Even if law firms could wield such influence, would there be a responsibility on them to fight this fight for their employees, their partners and other stakeholders? It is difficult to say.

It is also important to question if it is enough for law firms to ally with non-profit organizations that advocate for LGBT inclusion, but merely within their own company policies. Is it, to borrow Farrance’s phrase, mentally ‘sustainable’ for lawyers to feel accepted within one building, and then face the brunt of a closed-off world when they leave the premises of the law firm?

To use one example, Eversheds Sutherland has published a brochure detailing their internal initiatives to foster an inclusive, diverse culture for their workers. The firm proudly states they are ‘Gold Standard in the Hong Kong LGBT+ Inclusion Index’. This index was introduced in 2015 by Community Business, as a landmark initiative encouraging companies to be more inclusive of the LGBT community.

But while Community Business is a non-profit organization set up to promote inclusivity in businesses, Hong Kong’s government is less welcoming to gay and lesbian international workers. In 2020, Hong Kong’s High Court rejected a plea to recognize foreign same-sex marriages as valid. Under Hong Kong law, a marriage is valid exclusively for opposite-sex couples. The most recent challenge to this discriminatory law came from activist Jimmy Sham Tsz-kit, whose marriage to his husband in New York is currently still not seen as valid in Hong Kong.

Hong Kong does not accept same-sex marriages as valid, yet hosts annual Pride parades that attract international praise. Likewise, law firms boast of their LGBT-inclusive culture, but send LGBT workers overseas to places where the legal system is prejudiced against them- nearly always without adequate guidance on how to cope with the distress this might cause them.

Effects of Homophobia on LGBT lawyers in the UK

In the UK, where LGBT pressure groups have lobbied for full equal rights and protections for their community, it might be easier for gay and lesbian lawyers to enjoy a successful career with a feeling of fulfilment- so long as they practice within the country. But there remains the fear that might accompany some LGBT lawyers who want to practice abroad in countries that are less accepting of their identity. If this fear is enough to limit even a single lawyer from pursuing their ambition, it is something worth considering seriously.

Justin Farrance felt supported by Allen & Overy in his efforts to come out in the British workplace. But Jimmy Sham Tsz-kit was alone in his challenge to Hong Kong’s High Courts. Moving forward, if a country’s homophobic laws affect an employee, how much support are law firms willing to offer, if any? During the next batch of careers fairs, open days, and interviews, this is a question worth asking of law firms to determine the extent of their allyship with the LGBT community.

Summary

The future of diversity in the legal world cannot only be considered in the context of the UK, especially considering the global practice of most major law firms. Inclusivity is an easy and attractive buzzword for law firms to use, but to truly integrate such values in a workplace requires a massive internal investigation into the psychological and social effects on LGBT lawyers who work abroad in countries with anti-gay legislation.