How ‘out’ can I be on work trips abroad?

There are still challenges facing LGBTQ+ lawyers internationally—64 countries worldwide have enacted anti-gay laws and bias persists in many more. The issue merits a proper discussion, says Darren Smyth of EIP and IP Out.

The inaugural meeting of IP Out in 2016 took as its theme: “How out can I be?”

It seemed to be most people’s experience, as it had been mine, that while LGBTQ+ members of the IP profession could expect to be open about their identity in the office and among colleagues, the same could not be assumed abroad and among clients.

Most, if not all of us, had tacitly absorbed the message that while we could expect acceptance from our colleagues, we could not necessarily assume the same from clients.

The IP business is international, and most of us have clients in other countries. The job regularly involves visiting those countries. And on business trips more than at any other time, talk tends to stray into personal topics.

During a work dinner with a client abroad the conversation frequently turns to your family and social life.

Most LGBTQ+ lawyers have at least sometimes ducked questions—pretended to be single when we are not— or have ambiguously gendered our partner.

Increasingly, more of us are not doing that, and while, from my own experiences I can say that the resulting revelation has not always been welcomed—I have never experienced real hostility in response.

However, while I travel quite regularly to countries where being gay is not necessarily socially acceptable, I have not for a very long time been in one where it is actually illegal.

Fear prevails

The UK profession certainly has clients in such countries, and I have not seen much discussion of how this should be handled.

Should an LGBTQ+ patent attorney be asked by their firm to go to such a country? Should they have the right to decline (without professional consequences)?

I think it is reasonable that an attorney should have a choice under such circumstances, and I suspect that many, if not most firms, would agree, but I am not aware of situations where it has occurred in practice.

I have similarly wondered what would be the level of support in a firm for an attorney for whom a personal revelation— such as coming out—-to a client resulted in loss of work or loss of the client.

It is a necessary corollary of supporting diversity, equity and inclusion (DEI) that a firm would accept to bear this risk, but I suspect that when the theoretical became the reality the support would be less than enthusiastic.

Again, I don’t know of a situation when it has happened, but I do know of times in my earlier career where I have dissimulated for fear of such an outcome.

There are not many countries in the world that have an established DEI initiative within IP law such as IP Inclusive, or community groups such as IP Out.

Many countries where being LGBTQ+ is not illegal still lack any specific legal protections for LGBTQ+ people, and the levels of social acceptance vary widely.

As soon as a UK LGBTQ+ professional leaves the country, it becomes very uncertain what level of acceptance and support can be expected.

Even in countries that do have a commitment to DEI—often the model for such initiatives is different.  In the UK it is widely accepted that collecting and monitoring data about protected characteristics is a good method to encourage and track DEI progress.

Different cultural approaches

Other countries, perfectly validly, regard the keeping of such information as highly problematic (and sometimes, actually illegal), however separately and sensitively it is stored, and so the whole approach has to be different.

We have been inspired by initiatives that came both before and after IP Out from other countries. The pioneering LGBTQ+ community in IP was GLINTA, an informal group that has met at the INTA Annual Meeting for over two decades.

In Germany a group, ‘LGBTQI+ & Friends’ had its inaugural meeting in 2022. We hope to see similar initiatives in other countries but there are a few challenges.

In jurisdictions where IP is quite separate from other areas of law, the IP community is often quite small, and therefore an LGBTQ+ group may struggle to attain critical mass.

On the other hand in jurisdictions where IP is not particularly separate,there may be LGBTQ+ groups for lawyers generally—and there may be little need or want for one that specifically relates to IP.

Any group has to respond to its own local requirements and circumstances, and there is certainly not a single model that is applicable everywhere.

It would therefore not be practical (and nor in any case do I think it desirable) for, say, IP Out, to become an international organisation. But I do hope for a time where there may be communities in other countries that we could have joint initiatives with.

Darren Smyth is a partner at EIP and convenor of EIPride group
He is also co-chair, IP Out

Currently, There are 64 countries that have laws that criminalise homosexuality, and nearly half of these are in Africa. Human Rights Watch provides maps showing anti-LGBTQ+ laws country by country worldwide.