Robin White, Employment and Discrimination Barrister at Old Square Chambers

So, tell us a bit about yourself and what you do?

Hello, I’m Robin White, I’m a barrister at Old Square Chambers and I practice in employment and discrimination. I have an old fashioned, balanced practice; I act as often for employees as I do for employers. My practice covers the whole range of employment and discrimination law; individual, collective, unfair dismissal, redundancy… all forms of discrimination.
I also have the privilege of being the first person to transition from male to female in practice, at the discrimination bar, which I did way back in 2011. One or two of the directories refer to me as the go-to lawyer for trans cases. They’re relatively rare because gender reassignment is the rarest of the protected characteristics so you couldn’t build a practice just based on gender-reassignment cases, but it’s been nice to do one or two that have made a mark here and there.

I can imagine! So Robin, in your experience, what’s it like being ‘out’ in the legal profession?

On one level, it makes no difference because these days in the legal profession it doesn’t really matter whether you’re black, white, pink, gay, straight or whatever, the clients just want someone who’s going to win their case for them. On one level, it has been no different to my practice; I am still working with the same clients as I did before I transitioned, I still have a very similar practice to what I did before I transitioned.

On another level, there’s that expression that’s out there about bringing your whole self to work and one or two clients that I’ve known well have said that they’ve always enjoyed working with me, but there was some sort of core of me that they could never quite get at; there was a bit of me that was hidden away… And they were right. They were perceptive people who were right. Imagine being a fundamentally honest person and lying by conduct in every social interaction, which is what you do when you’re not out, to some extent, whatever you’re not out about.

A funny story from practice: about 18 months before I socially transitioned, I was doing a case in the Croydon Employment Tribunal. It was for a lady who worked in public service. She thought that she’d not got a series of appointments because of her sex or her race and that was her claim. I was for the organisation and my job was to show why the organisation had not given her the promotions and jobs she should have. They’re quite grimy cases, you compare the claimant and their application and interview notes with the successful candidate in each case and the organisation has to show why the successful candidate was the successful candidate. We’d done 7/8 jobs and were about to turn to tab 8, but she had seen the way the case had gone from tabs 1-7 and shouted across the tribunal: ‘How could you as a white, middle class male possibly understand discrimination?’. And it was just at the time as I was starting on transition and I was thinking, hmm, I could tell you, but this is probably not the appropriate venue. A few years later, after I’d socially transitioned, I met the judge socially and he said: ‘You did that appointments case where she shouted across the tribunal at you’ and at the time, he just said ‘Mr White (as I was then) has a job to do and I know it’s distressing but you just need to answer the questions.’ I remember having a glass of wine after a legal event with the judge after and he said ‘I never knew you probably had an answer to give!’

You certainly did! At this point, we normally ask whether you were you ever afraid, or advised not to disclose your sexual identity on your application form. However, since you transitioned while actually at the Bar, was that ever an issue for you?

No, but I had a previous job that I’d lost because I was honest about myself.

I made a decision to transition; I’m 1995 call so when I was called to the bar, at that point I didn’t know whether I could transition in the future so there wasn’t anything in that sense to declare.

What I would say to anybody thinking about that, in my view, yes, obviously there is discrimination… I mean, I’m a discrimination barrister so to say there isn’t would be to say I have no practice! I do cases across all professions and I would say that the legal profession is, in my view, the least discriminatory area that I know. Speaking particularly from my Chambers, I think we have slightly more female barriers than male barristers. We have more married barristers, gay and straight barristers, barristers from ethnic minorities. An interesting illustration is that we had four employment silks made this year in chambers, three women, one man; two women of colour and at least three religions amongst the four people. So, from the Old Square Chambers’ perspective, the protected characteristics matter not, you’ve just got to be a damn good lawyer.

Similarly, were you ever anxious to come out in the workplace? Or are you ever anxious to come out to new people in the workplace?

From the security of being 25 years call, having a very well-established practice and I’ve been out for a decade, it hasn’t affected me in that sense. I’m respectful of the fact that the barrister is there to represent the client. At the time of transition, I know I was cautious because I’d done the conferences in one gender and appeared in a different one. In one long running serious discrimination case, I did half the case in one gender and half in another because there were extended case hearings over nearly a two-year period. I ended up writing to the claimant that time that somebody slightly different was going to be turning up at the next hearing. And, during a very deeply felt and hard-fought discrimination case where I was the respondent, the claimant wrote me a very nice note back saying, ‘Thank you very much’. I hadn’t wanted them to be distracted in any way from their case when we turned up for the tribunal.

That’s really great to hear, especially that the claimant was so respectful. Have you experienced any other difficulties in your career because of your gender identity? How did you overcome them?

Well, the biggest one was to be denied progress in a previous career and the thing to do was to dust yourself up, get up, think what skills and abilities you had and think where you could make a mark for the future- which is what I did.
I think I’ve always tried to use my experiences as a positive, in that I do know what it’s like to be discriminated against, to be acted against improperly for reasons that are completely unrelated to your ability to do a job, and I can take that into a tribunal and not just on behalf of a claimant. It means that I understand discrimination in a very personal way and if I’m there acting for a respondent, proving for example that the individual was not discriminated against, that experience is useful in understanding the mechanism of it, in just the same way that a property lawyer who’s bought and sold property has experience in doing the thing that they’re now litigating about.

Do you think the profession is doing enough to ensure D&I for LGBTQ+ employees and if not, what more could be done?

Speaking from the perspective of my Chambers, I’m not sure what more we could do; we’re very clear about the irrelevance, frankly, of any of those issues. I know that on occasion, we’ve had to deal with discrimination issues in chambers and we’ve dealt with those in terms of actions by clients or other people and we treat matters very seriously. We do not tolerate discrimination against our members. We won’t have that and there’s a duty to lead if you’re a professional in any field, so I’m happy that we as chambers do the right things.
I suppose, in a way, my view is that I know it’s very important but in a sense, it’s important to make discrimination irrelevant. To make it plain that what determines matters is your ability to perform a particular piece of work. It is necessary to push back in life occasionally against people who don’t share that view and it’s a matter of responding to that in particular and being seen also to support particular needs.
If we take a more traditional form of discrimination, it’s important to make sure that female barristers who take maternity leave do not feel disadvantaged in their career because they’ve taken it. If there are ways in which Chambers needs to alter the way it works to take account of an individual in that circumstance then it should. That’s true of whatever protected characteristic it is that an individual has and needs to be assisted and advanced.

Finally, we’re compiling the three key pieces of advice that LGBTQ+ professionals like yourself would give to the ‘queer lawyers of tomorrow’; what are yours?

1. Be a good lawyer. Be a better lawyer than the next man/woman/person.
2. Don’t let anybody tell you that there is a job or piece of litigation that you can’t do. The way to make sure that I do something is to tell me that there is something that I can’t do; that means sure I’ll be up earlier, waking harder, to make sure that I can do it.
3. There are role models in the profession who have made their way and shown the irrelevance of protected characteristics to legal practice. Take comfort and support from them in terms of the view your profession takes your ability to do your job and whether any of the protected characteristics are relevant or not.