The Law Society believes that the legal profession has a role to play in championing the values and concepts of justice, fairness, equity and legitimacy. As the work of the Law Society’s International Division highlights, this role extends to encouraging the legal professions of international jurisdictions to uphold these values.
LGBT history month and the 15th anniversary of the repeal of Section 28 of the Local Government Act 1988 are milestones on which we should reflect upon the current experiences of LGBT communities both in the UK and internationally. The LGBT community in the UK has almost equal status at law and, according to Equaldex statistics, 76% of the population believes homosexuality to be socially acceptable. Gay marriage and same-sex adoption are legal and employment laws and policies reflect this. Law firms operating in the UK pride themselves on robust LGBT policies, with many featuring in the Stonewall rankings. Although there have been great wins for the LGBT community in recent years, we must take care to ensure that these hard won rights are maintained.
The international LGBT community has had a turbulent year, even in traditionally LGBT friendly jurisdictions. Although Australia has legalised gay marriage, the USA’s current leadership has been openly unsupportive of LGBT equality and Bermuda has recently repealed its gay marriage law. It is more important than ever to ensure that the actions of the UK and UK law firms are an exemplar of how LGBT rights should be upheld internationally.
Modern law firms are increasingly international, especially in finance and commercial law. But are international law firms doing enough to uphold and maintain the rights of LGBT employees in overseas jurisdictions? Bermuda and Dubai are examples of popular jurisdictions for financial services, both of which pose challenges for LGBT employees.
In December 2017, Bermuda’s House of Assembly and Senate passed the Domestic Partnership Act 2017, repealing its gay marriage law. Bermuda is the first country in the world to take a backward step on LGBT rights in this manner, which will effectively give gay couples second class status. International law firms are often required to use Bermudan local counsel in financing transactions. In practice, Bermudan law firms are unlikely to have openly prejudicial policies regarding LGBT employees, although it is unlikely that an employee in a same-sex relationship would feel comfortable being openly out in the office following this change in law.
Bermuda is an overseas UK territory and the UK government chose not to exercise its right to block the bill that repealed same-sex marriage. Whilst upholding the decisions of a democratically elected government is important, it raises the question of what role the UK government should play in upholding LGBT rights in overseas jurisdictions.
In Dubai, homosexuality is illegal and those convicted can incur lengthy prison sentences. If an employer is aware that an employee identifies as LGBT they are legally required to report them to the police. Public displays of affection between same-sex couples can be prosecuted under public indecency laws. The United Arab Emirates’ constitution, which came into effect in December 1971, does not reference any protections against discrimination in the workplace on the basis of gender or sexuality.
The model that most firms choose to adopt in relation to their LGBT policies in non-LGBT friendly jurisdictions is an ‘Embassy’ model, where a firm supports LGBT rights within the walls of its office only. This model is often in conflict with local laws. In Dubai, despite local laws, international firms do not report their LGBT employees to the police. However, employers cannot promote a completely open LGBT policy in the office when to do so is a criminal offence.
Although all support of the LGBT community is positive, it is argued that an Embassy model helps to maintain a discriminatory system rather than addresses the heart of the issue. An alternative to the Embassy model is the ‘Advocacy’ model, which involves active lobbying within the jurisdiction in order to change the law for the benefit of the LGBT community, in addition to equal internal employment policies. Where possible, law firms should be encouraged to lobby for LGBT rights in the non-LGBT friendly jurisdictions in which they operate, as this is the only true way of championing the values and concepts of justice, fairness, equity and legitimacy.
This article proposes that an ‘Equity’ model - active policy intervention by governments of LGBT friendly jurisdictions - would be the most effective method of combating discrimination against LGBT employees overseas. The UK government should require all companies that operate in the UK to ensure that their overseas offices and third party suppliers are compliant with LGBT friendly employment policies. This would cover both offices of law firms overseas as well as the use of local counsel. A similarly robust approach has been taken to anti-money laundering laws, which have extraterritorial effect. The civil rights of LGBT individuals should not be considered a ‘nice to have’ and more should be done on a government level to support the efforts of firms that are advocating for policy change in overseas jurisdictions. This top down change must come from a coordinated effort of LGBT friendly governments, such as the UK, who have appeared reluctant to commit to a zero tolerance policy towards LGBT discrimination in certain influential, non-LGBT friendly jurisdictions.
Netanya Clixby is writing in her capacity as a committee member of the Law Society’s LGBT+ Division and co-chair and co-founder of the London Bisexual Network.