“If you are a gay white male, you’d probably say things have improved over the years. But, if you are a woman, or belong to an ethnic minority, or are disabled, your answer may be quite different.”
That’s the view of one lawyer on where the intellectual property profession stands when it comes to supporting LGBTQ+ lawyers as many countries continue to commemorate Pride month, which is taking place during June.
Sources in the US and Europe note that huge progress has been made but that there should be increased focus on intersectionality – where there is a crossover between groups – so that black and minority ethnic (BAME), female, or disabled LGBTQ+ lawyers (and other groups) feel equally as supported as white males.
This is important because often people who fit into these categories face the existing challenges of belonging to an already marginalised group but may be met with additional hostility from within their own communities and even the LGBTQ+ community, sources add.
According to LGBTQ+ charity Stonewall, 51% of BAME LGBTQ+ people have experienced discrimination from other such people because of their ethnicity. Further, 10% of BAME LGBTQ+ people have been physically attacked because of their sexual orientation and/or gender identity, compared to 3% of white LGBTQ+ people.
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“Where I think we continue to see issues is if you are a LGBTQ+ person but who also fits into another category – e.g. black or female,” says Darren Smyth, partner at EIP in London. “I think there needs to be more of a focus on those intersectional cases.”
He says the scale of how supported LGBTQ+ lawyers feel is likely to differ depending on which additional categories they fall into.
“A gay, white, cisgender [someone whose identity matches their birth sex] male in the UK may be quite positive about the progress made,” he adds. “However, that could reduce as you look across the spectrum. A gay white female may offer a less positive picture, and a BAME LGBTQ+ lawyer even less so.”
Tom Leonard, a partner at Kilburn & Strode in London and co-founder of IP Out, a committee supporting LGBTQ+ IP professionals, believes being gay has in some ways had a positive impact on his career, including in the recruitment process as it made him more memorable.
However, he notes that he may not have been able to say the same thing if he were BAME or belonged to another group.
“It should not be incumbent on the people who have those characteristics or who fit into those groups to speak out – it should be up to everyone in the profession,” he adds.
Carlton Daniel, a partner at Squire Patton Boggs in London who is both black and gay, says he has experienced hostility from other people of colour and from within the LGBTQ+ community.
Many black people living in Britain originate from Africa or the Caribbean, where there are more socially conservative attitudes, he notes, adding that some members of the LGBTQ+ community have expressed surprise, or even overt prejudice, upon realising he is both gay and a person of colour.
Signs of improvement
Daniel says allyship is key to improving intersectionality in the professional context.
Black people and other people of colour should join forces with members of the LGBTQ+ community to discuss these topics, he adds. “People should not be afraid to get things wrong. Only through conversation and working together can we foster positive change.”
Jonathan Andrews, an associate at Reed Smith in London who is bisexual and autistic, believes intersectionality conversations are becoming more frequent.
However, he believes a greater focus on this area could be achieved, including through joint events between different groups or committees that seek to support diverse lawyers.
Though he has not experienced it personally, prejudice still exists, Andrews says. This can come from those within the LGBTQ+ community itself who may not be fully aware of the nature of autism and who do not necessarily agree with the concept of bisexuality.
“There is still a notion among some people that you should be somehow gay or straight,” he says.
He adds that when he was applying for jobs he was conscious that both of these factors could have worked against him. However, he says there have been positives, such as the opportunity to engage in public speaking about his perspectives.
US and UK overview
According to Smyth at EIP, the UK IP profession is not known for its diversity, which in turn makes intersectionality harder to address.
Although the IP Out committee has a good representation of men and women, there are very few lawyers from other marginalised groups, such as BAME or disabled.
IP, Smyth notes, has always had a reputation for being fairly conservative. And to become a patent attorney in the UK, candidates must have a STEM degree – which brings its own diversity challenges.
Improving diversity within the profession must start from encouraging IP and law as a career path from school age, Daniel at Squire Patton Boggs says.
One source adds that there have been discussions about changing the entry requirements to take the US patent bar – as with the UK, applicants need a science or an engineering degree – in an attempt to improve the diversity of future candidates.
They point out that as well as hostility from within their own community, BAME LGBTQ+ people and those in other marginalised groups may not feel comfortable in a professional environment if there is little visibility of people who look like them on committees, within their place of work, or as inventors.
Joshua Simmons, partner at Kirkland & Ellis in New York, says intersectionality has a particular importance in the US, where there has been a heightened focus on race relations.
“As a white male, I recognise that I am afforded certain privileges that others in the LGBTQ+ community are not afforded. That is why it’s important to me that if the tide is turning, all boats are rising together.”
Simmons adds that the death of George Floyd in the US last year, which sparked protests among many BAME (and other) groups, reminded him of similar protests in the LGBTQ+ community.
“The pride march at its core is a protest. It is the LGBTQ+ community standing up and saying, ‘We are here, and won’t be ignored.’ We cannot ignore a similar fight happening in our sister communities – we need to support them.”
In an attempt to start developing conversations surrounding intersectionality, IP Out hosted an event this month charting the experiences of LGBTQ+ lawyers who also hold strong religious beliefs and who, in some cases, have faced criticism from within their communities.
A senior in-house counsel at a US biotech company who is gay says she grew up in the deep south of the US, where a strong Christian culture results in some hostility towards gay people. She subsequently moved to California for her career.
“The best thing is for people to be unabashedly out. If people face challenges or hostility within their own communities, the corporate environment can provide an opportunity to make new friends or join support groups.”
She says that as a woman, there are existing challenges in the professional environment, adding: “I have always made a conscious choice not to let my sexuality be an additional barrier in the professional decisions I have taken.”
Atmosphere of fear
Any focus on intersectionality should not ignore the fact that in many parts of the world, white gay men continue to face problems.
Sources note there is a strong anti-LGBTQ+ stance from some governments. Not only does this make it difficult for people to come out in their professional environment, it stymies the diversity work that international firms can conduct, forcing them to adopt different strategies based on country.
“The situation across Europe is so different,” says Igor Ostrowski, a Polish national and IP partner at Dentons in London. “While there have been improvements in places like the UK, it is a very different picture in some parts of eastern and central Europe.”
In Hungary, for example, legislation was passed just days ago banning education on LGBTQ+ issues. Poland has no harmful legislation at the moment but Ostrowski notes that public comments from politicians have created an atmosphere of fear among the LGBTQ+ community.
Ostrowski is among a group of LGBTQ+ activists taking legal action against prominent Polish campaigner Kaja Godek.
In 2018, Godek described Ireland’s former prime minister Leo Varadkar’s homosexuality as a “perversion” on national television. In 2019, Ostrowski also helped crowdfund a successful legal challenge against a Polish newspaper that had been distributing ‘LGBT-free zone’ stickers.
In the professional environment, Ostrowski agrees that broadening participation in LGBTQ+ networks is key. “If we look at our own LGBTQ+ group, we have quite good gay and lesbian representation, but it’s also important to show other groups that they too are supported – and encourage participation.”
Improving participation is of course only half the battle. The first step is for firms and corporates to show they are taking diversity seriously. Only then may we see the LGBTQ+ networks within those organisations begin to have more representation from marginalised groups.
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