Can a gay, mature student with Middle Eastern heritage secure pupillage?
There is much discussion surrounding equality at the Bar and there have been various schemes introduced which aim to offer equal opportunities for ‘underrepresented groups at the Bar’.
It is generally accepted that there is an issue in terms of minority groups and individuals from disadvantaged socio-economic backgrounds being able to succeed in a career at the Bar and this is largely due to the financial cost of qualification. Many view scholarships and/or diversity schemes as the primary remedies but this is a highly complex issue that requires a multifaceted approach in terms of producing any substantive change.
‘Underrepresented groups at the bar’ is a perfectly accurate term, however, Authorised Education and Training Organisations (AETOs) and the Bar Standards Board (BSB) must remember that ‘underrepresented groups’ are in fact groups with protected characteristics. Accordingly, AETOs and the BSB are under a legal obligation to remove practices from recruitment processes which are potentially discriminatory against protected groups.
It is also imperative to understand that contrary to a pervasive and patronising notion advanced by some, removing discriminatory practices from recruitment is not synonymous with ‘lowering standards’; for individuals pushing this narrative, making some effort in trying to understand life experiences beyond your own would perhaps assist in making this clear.
It is on this basis that I share my own experience of coming to the Bar.
Sexual Orientation & Race
Personally, I do not consider my sexuality or ethnicity as prohibitive (or indeed relevant) to my potential career at the Bar. However, it was the combination of these characteristics which was causative in me completing the academic and vocational stages of my qualification as a mature student and I do consider my age to be a major obstacle in terms of securing pupillage.
My parents are Middle Eastern Christians that came to the UK to avoid the religious persecution they faced in their country of birth. They arrived in the UK as teenagers, subsequently, they were not university educated and only my mother had successfully completed her secondary school education. This resulted in little emphasis being placed on education when I was growing up.
To compound matters, there was something ‘wrong’ with me. It was virtually a requirement for boys attending a state school in the 1980s to enjoy sports, particularly football. On the basis of not liking football alone you could be identified as being different or ‘gay’ and ostracised. As it turns out, I was indeed gay and this presented a number of difficulties for me. Being gay is still hugely taboo for many ethnic minorities and a source of great familial shame within certain communities. Subsequently, LGBTQ youth from BAME backgrounds can be at particular risk of violence or homelessness by virtue of their orientation.
My issues began in middle school and continued into my secondary school education. I lived in a perpetual state of fear of my parents discovering I was being targeted for being ‘gay’; beyond the shame, I had concerns regarding my safety. Having no respite at either school or home is hugely detrimental to mental health and this is why suicide rates for LGBTQ youth are disproportionately high.
As a result of my experiences, I was not trying to complete my secondary school education with 10 grade A GCSEs before going on to A-levels and university, I was merely trying to survive.
Unsurprisingly, I did not leave secondary school completely unscathed. A further issue had been my appearance, I suffered with severe acne, I had a large nose and I wore glasses. Feeling powerless in other aspects of my life, I became hyper focused on my appearance in a desperate search for some control in my life. I began working part-time at 16 years old in order to fund cosmetic surgery and I underwent my first rhinoplasty at 17 years old. Unfortunately, with limited means, I went to the cheapest surgeon I could find and this proved to be a costly mistake in many respects.
It was much later on in life that I realised my formative years had triggered body dysmorphic disorder and between the ages of 17 and 31 years old, I spent approximately £87,000 on cosmetic procedures.
Age
The first time I discovered my age might prove an issue in terms of a career at the Bar was in the final year of my LLB. One of my tutors informed me that becoming a barrister after the age of 35 years old was statistically unlikely (I began my LLB at 34 years old). This was further reinforced when my personal tutor on the BPTC advised me to remove all reference to being a mature student from my pupillage applications because ‘chambers do not like mature students’.
Age is not a formal barrier to the Bar per se; for example, medical practitioners who want to qualify as a coroner must first qualify as a lawyer and some will take the barrister route. However, their path to pupillage is likely to be very different to my own.
Many mature students come to higher education late because, like myself, they did not get the best start in life. The financial cost of qualification is a major issue, particularly for mature students with limited financial means. Shortly before I commenced my LLB, university fees were tripled. I had no choice but to maintain an income. I commenced my full-time LLB whilst simultaneously in full-time employment. For the majority of my undergraduate degree, in practical terms, I worked an 8-hour day (in a challenging management role), attended 3 hours of classes in the evening, and still had to find the time to keep up with the weekly reading and seminar preparation.
I also had to work up to 21 hours a week whilst undertaking the BPTC full-time (which I completed as an LLM in order to secure a student loan).
I cannot stress enough how difficult it was maintaining this type of schedule across this many years. I must also point out that not all employers are supportive of employees who have other commitments. Overall, my path to qualification was not an experience that was conducive to wellness. My experience of the mental health support available for students was also extremely poor, but that is perhaps a conversation for another day.
On a more positive note, I surprisingly received a scholarship from Middle Temple. I say surprisingly because I delivered perhaps the worst interview of my life. Considering I was ‘statistically unlikely to become a barrister’, I felt defeated before I entered the room to meet with the panel. I made such little effort in preparation, I did not even check my scholarship application prior to the interview. The application form asks you to list a question you would like to be asked and I had no recollection of this by time I sat down for the interview. The interview began with a panel member informing me that she would start by asking me the question ‘I wanted to be asked’ (and said no more). I had absolutely no idea what she was talking about and so we just stared at each other in joint confusion.
Evidently, I recovered sufficiently because I was awarded a small scholarship from the Inn. It was hugely encouraging to receive a scholarship from Middle Temple, unfortunately, it did not assist with my financial difficulties.
My living costs and the course fees for the BPTC/LLM amounted to approximately £40,000. Due to unforeseen circumstances, I had a £14,000 deficit in my budget. There were periods on the BPTC where on top of the stress of preparing for examinations, I had absolutely no idea how I was going to pay my rent.
Mature students can also face additional difficulties due to their personal lives. Mature students are far more likely to have caring responsibilities for young children or elderly relatives. That was not my situation, however, that is not to say that I did not experience personal difficulties. I had a sexual partner inform me they were HIV+ a few days before my equity examination (on the LLB) and I had a sibling diagnosed with cancer just prior to commencing the BPTC.
The academic and vocational stages of my qualification were extremely difficult for a number of reasons, despite this, I still achieved a first on my LLB and a distinction on my LLM. Further to my academic achievements, I have 2.5 years of practical legal experience as a paralegal with 2 years’ experience specifically in the practice area I wish to specialise in.
Unfortunately, the reality I face is I am still unlikely to be shortlisted for a pupillage interview.
Indirect Discrimination
It should be evident from above, mature students with limited financial means have no additional capacity for the extra-curricular activities which essentially are a pre-requisite to securing pupillage. The profession has known for some time that individuals from disadvantaged socio-economic backgrounds are not in a position to work for free and the expectation to undertake mooting, mini-pupillages and pro-bono work essentially rules many individuals out of the profession.
Mooting in particular is an issue because competitions are normally restricted to students; if you are in a financial position whereby you have to maintain employment alongside your studies, then you are significantly disadvantaged. To be clear, completing extra-curricular activities in my early twenties was viable, in my thirties, it was not.
Socio-economic background may not be a protected characteristic, however, ‘age’ is.
There is a chambers that I have previously applied to which, to their credit, run a completely transparent pupillage application process complete with marking scheme and disclosure of the candidate’s application score. In 2019, they marked applicants in 6 main categories (with 2 additional categories available for specific circumstances). Even if I scored the top mark in 5 categories, based on my score in the advocacy category, it was not possible to be selected for interview.
I have undertaken 5 advocacy assessment across the academic and vocational stages of my qualification and I have always done well. However, I have never been able to undertake mooting which essentially is the primary method of scoring points for advocacy in the pupillage application process.
For the sake of clarity, when discussing indirect discrimination, I am expressing my own views on the law. Indirect discrimination occurs where there is apparently equal treatment of all workers, but the effect of certain requirements puts those with a specific protected characteristic at a particular disadvantage. Mandatory or preferred selection criteria for jobs fall under the category of a provision, criterion or practice (PCP), and when selecting candidates for pupillage interviews, in my view, AETOs are applying a PCP that puts mature students (like myself) at a particular disadvantage. On the basis that I have had to pass 5 advocacy assessments to qualify, I believe that using mooting as the defining characteristic of ability in advocacy is not a proportionate means of achieving a legitimate aim and therefore potentially constitutes indirect discrimination.
I have discussed the lack of mooting opportunities for BPTC graduates with Middle Temple and I understand that they are looking at possibly offering something moving forward. However, this would not absolve AETOs of their responsibility not to discriminate during selection processes. Mature students having to complete extra-curricular activities after they have completed the formal requirements of qualification still subjects this protected group to the detriment of delay and is therefore still discriminatory.
Much is made of improving ‘diversity’ at the Bar, however, in my view, there is a resistance to making any fundamental changes to current selection practices. Accordingly, I view assertions of a commitment to inclusivity as being merely performative opposed to substantive.
In terms of answering my initial question: can a gay, mature student with Middle Eastern heritage secure pupillage?
I will let you know when I find out.
