Towards equality

Gay rights - and quite a few gay lawyers - are coming to the forefront as people's attitudes change, Victoria Maccallum writes

Equality for homosexual men and women in the eyes of the law is an issue which, in recent months, has lodged itself firmly in the public consciousness and on the front pages.

The Bill allowing unmarried heterosexual and gay couples to adopt children caused great controversy when it was passed last week after a bitter battle in Parliament.

The previous week saw a judgment against the Department of Health which stated that homosexual couples now have the same rights as heterosexual couples if one of the partners becomes mentally ill and requires care (see [2002] Gazette, 31 October, 5).

The case - brought by a lesbian suffering from schizophrenia - means that the definition of 'nearest relative' and the powers that accompany it under the Mental Health Act 1983 will apply to gay partners after six months' cohabitation, rather than the previous five years.

Perhaps most significant was the Court of Appeal's landmark ruling last week that homosexual couples have the same rights as heterosexual couples in tenancy cases.

The decision, made under the Human Rights Act 1998, will enable same-sex partners to take over tenancies when their partners die; the Rent Act had previously precluded this.

It could mean that many claims by homosexuals involving inheritance, property and family matters will have to be revisited by the courts.

The battle for cohabitees' rights, while not exclusively a gay issue, is also one which could see a major improvement in gay people's legal status.

In July, the Law Society launched a vigorous campaign for greater rights for cohabitees.

As gay and lesbian rights become more prominent, so the number of lawyers who work in this specialised area is increasing.

Gill Butler is a family partner at London firm Evans Butler Wade, and until recently (when she stopped doing legal aid work) 'around 95%' of her workload was lesbian and gay family matters.

'I deal with adoption, custody and contact disputes for lesbian and gay couples, and general issues arising from same-sex habitation,' she says.

'When I began in this area, in the mid-1980s, it was terribly unfash-ionable.'

Now, however, Ms Butler maintains that attitudes have changed.

'There has been a sea-change in the courts' approach to lesbian and gay issues,' she says.

'Up until about 1992, it was pretty much impossible to have custody of your child if you were gay, but now you have figures such as Dame Elizabeth Butler-Sloss, head of the family division, speaking out in favour of it, which would have been unheard of ten years ago.'

One of the major factors in the increased public awareness of gay rights has been the work of the lobbying group Stonewall, which, for example, a decade ago played a key role in establishing the right of foreign partners in gay and lesbian relationships to have the same right to stay in the UK as heterosexuals.

Wesley Gryk, sole principal of London-based Wesley Gryk Solicitors, is a leading immigration and human rights lawyer who works closely with Stonewall on the issue of same-sex immigration issues.

He was awarded the Stonewall equality award in 1997 for his work in this area.

'The past few years have been a period of significant change with these issues,' he says.

'For example, a House of Lords decision in 1999 - in which our firm represented the UN High Commissioner for Refugees - found that gay men and lesbians constituted "social groups" under the UN's definition of refugee, and since that decision we have helped a number of people to obtain political asylum in the UK on the basis of persecution which they would face if they returned home because of their sexuality.'

However, he points out that despite the increased legal protection for gay men and lesbians, some attitudes are entrenched.

'The Sunday Telegraph recently ran a front-page article on gay Jamaican men who have been granted political asylum, pointing out that they were regularly victims of violent attacks, including cases where individuals had been hacked to death by machete.' The paper, however, ran the article under the headline 'Asylum is granted to Jamaicans - just because they're gay'.

Mr Gryk says this was an example of 'the in-built bias which one faces when working in the fields of both asylum law, and gay and lesbian rights'.

Later editions of the paper did, however, change the headline to 'Butchered by machete - just because they're gay'.

This 'in-built bias' has doubtless been a factor in the rise of niche gay and lesbian law firms, which advertise in the gay press as either being run by gay men and lesbians, or which claim to be gay-friendly with expertise in specific issues affecting them.

David Clark & Co in Hampstead, north London, is one such firm.

It offers a high street practice for homosexual clients, advertising itself in Gay Times and The Pink Paper as a gay firm undertaking criminal defence work, conveyancing, immigration and probate.

Assistant Daniel Williamson, while stressing that the firm is not exclusively for gay clients, agrees that the market is a healthy one.

'It is a huge market - we get calls from abroad, which makes me suspect that it has not yet been fully explored by solicitors,' he says.

Clients come to firms such as this because they can be guaranteed not only expertise in a certain area, but also - and perhaps more importantly - a sympathetic ear.

'Some people come to us having had a bad experience at other firms, for example, they may have been arrested for a sexual offence and have not had the most sympathetic solicitor,' he says.

This is a scenario which is all too familiar to Graham Wilson, a partner at west midlands-based Brindley Twist Tafft & James, who has a reputation for dealing with gay 'divorces'.

'Much of the legal profession still has a neanderthal attitude,' he states.

'Many clients have had terrible experiences with other solicitors, and now lie about who they are - if buying a house with their boyfriend, they will claim that it is merely a friend.'

Mr Wilson knows of solicitors who have refused to act for clients once they discovered their sexuality, and have ordered them from their offices claiming to be worried about the risk of AIDS.

'A lot of solicitors are simply not up to speed on gay rights - one even told a client that the Human Rights Act did not apply to gay people.' He urges clients to report these solicitors to the Office for the Supervision of Solicitors, but most simply want to put the experience behind them.

It is experiences like these that have led to the increase in work for genuinely gay-friendly solicitors.

'Five to ten per cent of the population is gay, many of whom are very well off because they do not have children, so it's a very lucrative and untapped market,' Mr Wilson says.

'However, gay men are very clued up, and when a firm is just chasing the pink pound they can spot it a mile off.

For a firm to be successful in this market, they must have a genuinely gay-friendly culture running through all levels.'

Carl Gallagher, a lawyer at Leeds housing firm Zermansky & Partners, has previously urged gay solicitors to come out (see [1999] Gazette, 10 November, 14).

His firm is fully supportive of his sexuality, but he says: 'Most gay lawyers are either still completely in the closet, or their firms have the attitude of "we accept your lifestyle choice, but we would not be happy if it were made public".'

Solicitors should come out, he argues, because they are in a position of relative power and authority.

'We're uniquely placed as lawyers - judges will find it much harder to make unfair or bigoted judgments against gay people if they know that the solicitor in front of them is gay.'

Perhaps lessons in openness and acceptance should be learnt from the US, where some lawyers have taken this attitude to a new level.

Keith Wetmore, chairman of leading US firm Morrison & Foerster (also known as MoFo) is very much out and proud, and once conducted an interview with a US legal magazine sporting a baseball cap embroidered with the legend 'homo@mofo'.