To mark International Women’s Day, Dr Simon Foote KC and Bridgette White discuss DEI and the legal profession, the ongoing challenges women face, and the steps needed to drive greater gender equity in law.

‍Women have undoubtedly made advancements in the legal profession over recent decades. How are DEI efforts still relevant in 2025?

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Bridgette White (BW): Women have certainly made considerable advancements in the legal profession. An increasing proportion of our senior judiciary is now female. The Chief Justice, President of the Court of Appeal and the head of the High Court are all women. There is a lot of good news. 

However, women as legal practitioners are not rising to the top at the same rate as their male counterparts. According to New Zealand Law Society statistics from 2023, only 34% of equity partner positions were held by women, despite 55.4% of lawyers in New Zealand being women. In addition, a September 2018 study by the New Zealand Bar Association of appearances in the Senior Courts found that women appear as lead counsel “significantly less frequently than men”. The statistics are even more concerning for women of colour.

Some may suggest that these figures may self-correct in time as these women spend more time in the profession. However, there has been more female graduates in law than male graduates since the mid-1990s and women continue to drop out of the profession at a rate that is disproportionate to men. Self-correction is simply not occurring (or at least not fast enough!).

What a good DEI policy does is ensure that decisions are in fact based on merit, not based on habit, unconsciously using outdated assumptions that are simply not accurate. For example, perceived traditional “female characteristics” are often at odds with what are perceived to be characteristics required of a “strong leader and advocate”.  

And there is a good business case for DEI. McKinsey & Company research has continually shown that major firms with women and people of colour at the helm outperform their homogenous peers in every financial metric.

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Do you think the current backlash against DEI in the United States has consequences for New Zealand?

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Dr Simon Foote KC (SF): New Zealand is always influenced to some degree by global conversations on social, cultural, and economic issues, particularly those in larger Western nations. While shifts in DEI attitudes in the United States may spark similar debates here, I believe New Zealanders remain broadly supportive of initiatives that foster fairness, opportunity, and inclusivity.

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That said, Winston Peters and NZ First yesterday announced an “anti-DEI” bill to rid DEI from the public service. Quite what that bill entails is yet to be seen, but it reinforces my view that we need to be vocal about the purpose and benefits of DEI.

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In that regard, it's important to distinguish between political narratives and the real intent of DEI. In substance, DEI does not involve a challenge to meritocracy; it supports it by levelling the playing field. DEI isn’t about preferential treatment. While a diverse and inclusive workplace often benefits everyone by harnessing a wider range of experiences and perspectives, DEI is first and foremost about ensuring that opportunities are not limited by conscious or unconscious bias. In New Zealand, the principle of giving everyone a fair go resonates strongly, and I expect that support for DEI – when understood as a tool for equal opportunity – will remain firm.

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What specific challenges in your opinion do women in New Zealand’s legal profession continue to face?
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BW: Law is a tough industry for both men and women. There is so much that can be said about the specific challenges that women face. Those challenges will also vary depending on the area of law, the industry that their clients are in and whether they are in-house, in private practice or at the bar.

However, research suggests that the problems are rooted in a range of factors, including juggling work/life balance, women not self-promoting as well (or in the same way) as men do and unconscious bias (by both men and women).  

For those with dependants, support at home is critical. This should not just lie with mothers. The juggle is real. In my view, it will only be when men visibly take on childcare responsibilities equally with women will the unconscious bias against working mums ease. However, this is only part of the problem.

As noted earlier, unconscious bias is a significant issue especially for women seeking positions that requires strength and leadership. Socially accepted female qualities are nurturing and compassionate. These qualities are often undervalued in the professional world and do not fit with what is traditionally perceived to be required of a strong advocate.  However, if women show more assertion and control, they are perceived as unlikable and suffer prejudice. They cannot win.    

Building women’s confidence should be key areas of focus. I see so many incredible women who just don’t back themselves. We need to help them do that.

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In my view, unconscious bias is the biggest part of the problem. Happily, I have never heard of a woman not getting a promotion solely for the reason “she’s a woman.” Yet these problems persist. We all need to check the assumptions we make about people when we are handing out opportunities (be it a promotion or briefing counsel on a new case).

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What more can be done to advance gender equity for women in law?

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SF: The legal profession still has work to do in making career progression more accessible to women. A key challenge remains the expectation – both explicit and implicit – that women will take on the primary caregiving role for children, often at the expense of career advancement. Instead of viewing family life and professional success as competing priorities, the profession needs to build structures that better allow for both.

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Firms and chambers that prioritise flexible work arrangements, equitable briefing practices, and strong mentorship pathways for women will be better positioned to retain and promote female talent. The Bar has provided greater autonomy for some, but true gender equity will require a broader shift in firm cultures, leadership models, and promotion structures.

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When it comes to litigation, the persistent underrepresentation of women in lead counsel roles is a concern. The New Zealand Bar Association’s research shows little progress in this area, suggesting that traditional biases – whether from clients or colleagues – still play a role. The perception that “aggression wins cases” is outdated and does a disservice to the profession. Some of the toughest and most effective advocates I’ve seen are women who bring precision, strategy, and composure to their work.

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The restoration of the King’s Counsel rank and the appointment of high-calibre female silks in recent years have been positive steps. However, we must continue to challenge assumptions about leadership and capability in advocacy to ensure that talent, not outdated stereotypes, determines who gets the opportunities to lead.