Strides have been made for women in the legal profession – female solicitors comprise 54 per cent of the legal profession Australia-wide, and females comprise 64.1 per cent of the overall cohort of law students. More specifically, within the ACT – where I hail from – we see a Supreme Court female majority, with the appointment of Justice Belinda Baker and, more recently, Justice Louise Taylor – the first Aboriginal resident judge of the ACT Supreme Court. However, such achievements mask a much more disappointing reality: the lack of intersectionality in the legal profession – that is, the staggeringly low representation of those with compounding marginalised identities pertaining to gender, race, class and ability.

To students of colour like me, Portia has come to embody a form of thinking that is limited to surface-level diversity in the legal profession – impacting our wellbeing, as she represents a homogenous, non-inclusive form of representation that vehemently ignores us. Portia, though an eloquent legal orator, is also very racist, alluding that her dark-skinned Moroccan suitor has the “complexion of a devil” and is thus unworthy of her hand. So, too, perhaps to a lesser degree, do the strides for women in the legal profession conceal an uglier truth – the lack of women of colour or women with a disability, or those who possess compounding marginalised identities?

For example, the Law Society of NSW in 2021 put together a report entitled Diversity and Inclusion in the Legal Profession: The Business Case, which highlighted the lack of diversity, let alone intersectionality, in the legal profession. Only 6 per cent of solicitors identified as having a disability, and 1.1 per cent of the profession identified as Indigenous Australians. The 2016 census found that only 1.6 per cent of barristers are Asian Australian, and only 0.8 per cent of the judiciary are of Asian descent. Though no studies have been conducted as to how many women or gender-diverse lawyers have a disability or are of an Indigenous or Asian background, given these staggeringly low figures, I suspect it would be much worse.

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In order to dissect the reasons behind such disappointing truths, it is necessary to go back to where one’s career begins – law school.

For anyone who walks into a lecture room of law students today, it is easy to be struck by the level of diversity. Most strikingly, it is women who dominate the cohort. However, in spite of the fact that no studies have been conducted on the number of women of colour, women with disabilities or women from lower socioeconomic backgrounds –a result of being acculturated into an Anglo-Celtic masculine notion of normativity – it is easy to spot in the classroom a diversity that extends much beyond gender.

My peers comprise international students, female students of various ethnicities, students who identify with a disability and Indigenous Australian students. Though these numbers are still far from reflective of modern-day Australia, they are encouraging. It is safe to say that there is no such thing as the perfect archetype of a law student anymore.

However, despite this, the construction and presentation of legal knowledge in law school are inherently gendered and racially biased – that is – predominantly accommodating of white, male experiences. Professor Mary Jane Mossman argues that “the partiality of gendered (male) experiences masked in apparently neutral legal principles”. For example, Professor Hilary Sommerland attests that even the supposedly gender-neutral language in subtle phrases such as “the Reasonable Man” is problematic, “encapsulating law’s symbolic power to assimilate rationality to maleness, and the discursive tropes used in its defence, exposed law school’s institutional resistance to feminism”.

As Professor Margaret Thornton notes, this new concentration on how the law itself was gendered began as early as the mid-1980s by feminist legal scholars. However, even feminist legal reformers who engaged with gendered concepts in law were critiqued for being “mainly white, middle class, able-bodied and heterosexual”. Thus, even while pushing against a legal subject dominated by masculine norms, these theorists ended up creating one that was just as exclusive of non-English speaking, Indigenous, immigrant, queer, neurodiverse and working-class women. These white feminists were critiqued for what became known as “essentialism” – a form of feminism that sought to “normalise and privilege specific forms of femininity” above others.

As such, the argument for intersectionality is based on the intellectual criticisms of essentialism. Throughout the 80s, and as the movement grew, legal discourse became more complex and nuanced, accounting for the experiences of those other than the middle-class, white – both male and female.

Even so, as Professor Thornton argues, such feminist legal theory has not made the monumental impact one might have hoped for on the core curriculum in law schools. This is affirmed by professors Mark Israel, Natalie Skead, Mary Heath, Anne Hewitt, Kate Galloway and Alex Steel – that it would be a mistake to assume that all academics look positively towards incorporating gendered, international, comparative, and Indigenous perspectives into teaching practices. In their words, “Australian law academics have displayed a tendency toward legal ethnocentrism and a lack of interest in comparative analysis extending beyond the Anglo-Commonwealth – in particular Canada, the United Kingdom and New Zealand and the United States”, ignoring even common law jurisdictions outside the West such as South Africa or India. This seems then, a likely reason why intersectionality often remains untouched in law schools and, as such, why young students with intersecting backgrounds – especially when this compounds levels of inequality – find themselves feeling a sense of impostor syndrome in the law.

How, then, does one move forward from here, preventing the trope of a “Portia” from being the only viable option available for women in the law?

1. Diversifying legal education

Feminist legal scholars in the ’90s sought to change the focus of teaching core legal subjects from being purely doctrinal to also engage with critical and theoretical perspectives. As a result, an attempt was initiated in 1993 to develop gender awareness within all compulsory subjects of the law curriculum by the Australian government. Following this, feminist legal academics have sought to teach more electives dedicated to exploring the role of diversity in the law, such as “women and law“, “anti-discrimination law”, and “feminist legal theory”. Professor Thornton highlights that the primary topics within feminist legal theory “canon” have tended to involve violence, the family, reproduction and economic rights – encouraging greater nuance in discussion pertaining to the effects of law on marginalised communities. She also highlights the role of interdisciplinary courses that “challenge the autonomy of law”; for example, “law and literature” or “law and culture”, encourage the deconstruction of legal texts themselves. As such, diversifying legal education, not only to critically analyse the gendered nature of the law but also to move beyond ethnocentric evaluations of legal concepts, is a step to encourage a discourse pertaining to broader and more plentiful cultural implications of law.

2. The importance of mentoring through law school

In order to prevent the purely doctrinal teaching of law from being the dominant form of legal education, encouraging mentoring programs to build interpersonal and professional connections between students from intersectional backgrounds and legal professionals within Australia would result in more candid discussions about diversity in law and generate more accessibility to senior roles in the legal profession. For example, the Asian Australian Lawyers Association supports Asian Australian lawyers through scholarship programs, mentoring, networking, advocacy workshops, and initiatives for foreign-qualified lawyers. It works with law societies, judiciaries, the Bar, legal educational bodies, universities, and other stakeholders. As race commissioner Chin Tan points out, not only do mentoring programs like these offer students and other young lawyers the opportunity to connect with senior legal professionals but also gives lawyers from diverse, intersectional backgrounds the opportunity to actively step up and role models and leaders, furthering their own careers and legitimacy in the law. However, such networks need to be expanded to include other cohorts as well so that fixing current problems does not lead to creating new hierarchies of privilege. Therefore, mentoring programs in law school are mutually beneficial and encourage both students and lawyers to actively recognise the importance of candid discussions surrounding the barriers faced by those of intersectional backgrounds in the law.

In the end, the problems of a lack of intersectionality will come to light, only when people from diverse backgrounds and other academic disciplines are able to bring fresh perspectives to ongoing conversations – just as a person of colour is more likely to read Portia as a Shakespearian, tragic character fatally flawed by her own racial prejudice rather than a legal heroine. It seems that Shakespeare might, after all, be capable of setting a new kind of precedent.

Satara Uthayakumaran is an ANU Law student and writer, and president of the ANU Women in Law Association.