Female barristers are rebelling against what they believe is a crackdown on lawyers with “unfashionable views” amid growing tensions over transgender issues.
The Legal Feminist, a forum to discuss feminist issues in the legal system, is preparing to fight back against proposals from the industry regulator which could see barristers punished if they fail to act in a way which “advances equality, diversity, and inclusion”.
Barrister Naomi Cunningham, who specialises in discrimination, said she fears the vagueness of a new proposal from the Bar Standards Board (BSB) paves the way for “arbitrary enforcement” meaning barristers with “unpopular or unfashionable views” get excluded.
The BSB, which regulates the profession, is consulting on the plans which if enforced could leave barristers who breach the rules facing penalties such as fines, suspensions or a ban.
“The Legal Feminists are working on a consultation response. I think it’s fair to say we’re unimpressed. This looks like an extraordinary land-grab by our regulator, and an assault both on the rule of law and, ironically, on diversity,” Ms Cunningham said.
Ms Cunningham said there were concerns the proposal was so “woolly” that it could mean anyone who disagrees with the belief that people can have different genders to their biological sex will be accused of failing to create an inclusive environment and therefore breaking the code.
“Many people who subscribe to gender identity beliefs take the view that any dissent from that belief is inherently hateful and disrespectful to people with a trans identity,” she said.
“We don’t know what they mean by ‘act in a way that advances equality, diversity and inclusion’ but we are suspicious that ‘diversity’ won’t turn out to include diversity of thought.”
The group of female barristers fears that the “core duty might be relied on to enforce compliance with ‘preferred pronouns’ in a variety of situations, attacking barristers’ freedom of expression,” she added.
The proposed duty would not force barristers to represent clients whose own views are thought to advance equality, diversity, and inclusion.
It would only mean that barristers manage their practice in a way that does so, a BSB spokesman confirmed, adding that enforcement would be a last resort and the profession would be given time to adapt.
However, the potential change comes amid growing concerns that workplace inclusion policies are punishing anyone with different views rather than improving diversity.
Barrister Allison Bailey lost her job when she told colleagues that charity Stonewall was involved in “harassment, intimidation and threats” against those who opposed its view on transgender issues. Her employer was later ordered to pay her £20,000 in costs for “unreasonable conduct”.
Fran Itkoff, a 90-year-old woman from California who had volunteered for a multiple sclerosis charity for more than 60 years, was also told earlier this year that her services were no longer required after she told a colleague she didn’t understand why she needed to add the pronouns “she/her” to her email signature.
The National MS Society confirmed at the time that she was “asked to step away from her role because of statements that were viewed as not aligning with our policy of inclusion”.
The subsequent backlash prompted the charity to apologise for what it called a “mistake”.
Samuel Townend, chair of the Bar Council, warned that radical change to BSB’s rules “may have unintended detrimental consequences” and could “affect the profession significantly”.
There have long been concerns about a lack of diversity at the Bar, with barrister chambers racing to eliminate bias when hiring by turning to methods such as “contextualised recruitment” so that the personal circumstances of applicants are taken into account.
There have also been rising incidents of bullying. A survey conducted by the Bar Council in 2023 found that 44pc of respondents had experienced or observed bullying, harassment and discrimination while working, up from 38pc in 2021 and 31pc in 2017.
Baroness Harman is currently leading a review into bullying and harassment in the sector.
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