Image credit: Dr Charlotte Proudman on X [https://x.com/DrProudman/status/1773438336293572966]
In recent months, a Guardian investigation has revealed senior members of the Judiciary are members of an exclusive, male only gentlemen’s club The Garrick (Gentleman: 2024). For nearly two hundred years, the Garrick has actively blocked women from becoming members. Equality and women’s rights activists have called on judges and politicians to resign from the club, as it signals their championing of patriarchy. A lawyer for a family law case where the mother is thought to be a victim of domestic abuse, rape and torture, applied for Sir Jonathon Cohen to be removed from hearing the case due to his membership of the Garrick (see Gentleman: 2024b). His continued involvement in the case, it was argued, could subject the case to bias and prejudice, leading to unfair proceedings and judgement (ibid).
"The law actively compounds our everyday experiences of inequality and marginalisation."
What 'Garrick-Gate' demonstrates is the powerful combination of hegemonic masculinity, whiteness, and elitism, which produces a intersectional domination that has a tight grip on the legal system. Ironically, intersectionality is absent from the Equality Act 2010 and other aspects of law. For example, as we have previously pointed out in our ‘Equality Act 10 Years On Report’ (Bi: 2021), the legal system does not accept cases on the grounds of more than one identity. In other words, a claimant can only bring a case on sex discrimination, or religious discrimination, or race discrimination, and so on. The said claimant cannot bring a single, united claim, that combines multiple aspects of their identity. We know that this is not how our identity works. For instance, three individual versions of me based on my female, ethnic, Muslim identities, do not each walk into a room separately. When I walk into a room, I present as one individual, one body, wherein all three forms of identity are compact. This is not reflected in the law, particularly discrimination law. As I argue elsewhere (Bi: 2019), the context matters. When the law takes different aspects of my identity individually in this way, and treats it as not interacting with other aspects of my identity, it ignores post-9/11 climate of increasing Islamophobia, which has heightened Muslim women’s vulnerability, and thus, the impact on incidents of discrimination. In this way, the law actively compounds our everyday experiences of inequality and marginalisation by overlooking the fundamental ways in which we present in society.
"Is it remotely possible to retrospectively assess the impact of Judge's membership of the Garrick club and the impact if any, on the cases heard over the last two-hundred years?"
Simultaneously however, the law has created an intersectional domination of sorts for white male Judges and claimants. While only now Judges that are members of the Garrick are being removed from hearing cases that involve rape and domestic abuse, one must consider, the number of cases heard in the past by Judges who have been members of the club. Is it remotely possible to retrospectively assess the impact of Judge's membership of the Garrick club and the impact if any, on the cases they heard over the past two-hundred years? How many cases must there be that have involved bias and prejudice, resulting in unfair proceedings? A system that has been built on a dangerous combination of hegemonic masculinity and whiteness, which in turn produces the tight grip of intersectional domination, will inevitably marginalise women and mute their experiences.
"Mr Borg-Neal, a manager of almost twenty-years at Lloyds Bank, was dismissed after he used the ‘N’ word in a meeting...an Employment Tribunal in London upheld...that his dyslexia was the reason why he used the ‘n’ word in full."
A case that, in my view, demonstrates this from an Employment Law angle, is that of Borg-Neal v Lloyds (UK Gov: 2023). It shows amongst other things, that intersectional domination transcends beyond family law cases, and also implicates Employment Law, which it is important to remember, is an area of law that has been severely affected by austerity and cuts to public services since 2010. In this case, Mr Borg-Neal, a manager of almost twenty-years at Lloyds Bank, was dismissed after he used the ‘N’ word in a meeting. However, an Employment Tribunal in London upheld his disability discrimination claim in 2023, in which he argued that his dyslexia was the reason why he used the ‘n’ word in full. Paragraph 9 of Borg-Neal v Lloyds judgement states: “…The claimant has dyslexia and this can lead him to keep reformulating questions and to ‘spurt’ things out before he loses his train of thought, so that he is concentrating more on the complex thought in his head than how he actually formulates the question and on the surrounding social cues. The evidence led us to believe, on the balance of probabilities, that the claimant’s dyslexia was a strong factor causing how he expressed himself at the session, and in his use of the full word rather than finding a means to avoid it.” Judge Lewis who heard the case, went to great lengths to engage with the detail and lived reality of the claimant’s disability.
"In other words, a white male claimant has been afforded validation of his disability to explain why he said the ‘N’ word in full, and consequently was awarded £500,000.00 in compensation. However, in Bi v E-ACT, an ethnic and religious minority and a female litigant in person’s disability is overridden...depriving her of monetary compensation."
Further to this, the Employment Tribunal did not put to Mr Borg-Neal the fact that he was able to perform successfully as a manager at Lloyds for nearly two decades, ample time to understand that it was not appropriate to use the 'N word in full. In a striking contrast, in Bi v E-Act case, which has been on-going for nine years, the claimant’s disability is not seen as a valid reason as to why an unless order was perceived by the courts as unfulfilled. Both the Employment Appeal Tribunals and Court of Appeal show a lack of engagement with the claimant’s disability in the same way as Judge Lewis does so with Mr Borg-Neal, going as far as providing 'reasonable adjustments' for him. In Bi v E-ACT case however, Employment Judge Perry noted the claimant had gone to ‘prestigious universities’ as a reason to support his contention that the claimant had not adhered to an unless order, rather than her actual, lived disability, a diagnosis supported my medical evidence, which all three courts accepted.
"…judgement has echoes of the ‘boys’ club’ which still exists among men in powerful positions”
In other words, a white male claimant has been afforded validation of his disability to explain why he said the ‘N’ word in full, and consequently was awarded £500,000.00 in compensation. However, in Bi v E-ACT, an ethnic and religious minority and a female litigant in person’s disability is overridden with her attention ‘prestigious universities’ as evidence of ‘intentional non-compliance’ with an unless order, thus depriving her of monetary compensation. The comment about the claimant attending prestigious universities, which was made by a white male Judge and supported by the Employment Appeal Tribunal and Court of Appeal strikes a chord with what Dr Charlotte Proudman refers to as “…judgement has echoes of the ‘boys’ club’ which still exists among men in powerful positions” (in Gentleman: 2024c).
"there is...a double standard in the way the law treats women and ethnic and religious communities, reinforcing the intersectional domination of hegemonic masculinity, whiteness, and elitism."
Turning to propose a hypothetical comparator in the case of Borg Neale v Lloyds, for example, would a Black employee’s claim for disability discrimination be upheld if they had perhaps made an Antisemitic remark? I think in such as a case, the Tribunal would consider the Black employee’s twenty years’ service as evidence of being fully aware of the company’s equality policy. In fact, only yesterday, a Muslim student’s High Court Appeal to reverse a prayer ban in the Michaela school, was rejected. In the Judgement, Justice Linden, said “the student had at the very least impliedly accepted that she would be subject to restrictions on her ability to manifest her religion when joining the secular school” (Barton and Clarence-Smith: 2024). The student’s age which is likely under sixteen, is given no consideration in this case, whereas Mr Borg Neale’s twenty years’ experience, and therefore familiarity with the company’s equality policy, is not questioned. While we will provide a detailed analysis of the Michaela School verdict separately, there is in my view at the very least, a double standard in the way the law treats women and ethnic and religious communities, reinforcing the intersectional domination of hegemonic masculinity, whiteness, and elitism.
References
Barton, A. and Clarence-Smith, L. 2024. Prayer ban ruling a ‘victory for all schools’, says Katherine Birbalsingh. Prayer ban ruling a 'victory for all schools', says Katharine Birbalsingh (telegraph.co.uk)
Bi, S. 2019. More than Multiple Jeopardy: Navigating the Legal system as a British-Muslim-Woman-Litigant-in-Person. Journal of Muslims in Europe, Vo.8(3), pp. 247-264. More Than “Multiple Jeopardy”: Navigating the Legal System as a British-Muslim-Woman-Litigant-in-Person in: Journal of Muslims in Europe Volume 8 Issue 3 (2019) (brill.com)
Bi, S. 2021. Equality Act 10 Years On. Equality Act Review. Equality Act 10 Years on | Equality Act Review
Gentleman, A. 2024. Garrick Club’s men only members list reveals rolls-call of British establishment. The Guardian. Garrick Club’s men-only members list reveals roll-call of British establishment | Garrick Club | The Guardian
Gentleman, A. 2024b. High Court Judge removed from case in part due to his Garrick membership. The Guardian. High court judge removed from case in part due to his Garrick membership | Garrick Club | The Guardian
Gentleman, A. 2024c. Lawyer who raised boys’ club concerns over judgement accused of misconduct. The Guardian. Lawyer who raised ‘boys’ club’ concerns over judgment accused of misconduct | Barristers | The Guardian
HM Courts and Tribunal Services. 2023. Borg-Neal v Lloyds, UK GOV. Mr C Borg-Neal v Lloyds Banking Group plc: 2202667/2022 - GOV.UK (www.gov.uk)
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