There is no denying that the legal sector has made headway in its understanding of and approach to neurodiversity. Although progress has been slower than that of wider society, there has been a marked shift away from the deficit-focused conception of neurodivergence. Historically, understandings of neurodivergence have centred around perceived inability, deficiency and defectiveness. Thankfully, the tide has begun to turn and we have seen the rise of the ‘neurodiversity paradigm’, moving the frame of reference to recognise strengths and societal barriers. But has the pendulum swung too far the other way? Is it now time to create a more nuanced narrative? And more importantly, what is the approach chambers should take? 

In recent years, the legal profession has rightly broken its silence on neurodiversity. The stigma and stereotypes are being increasingly challenged, as curiosity, understanding and acceptance build. More and more lawyers are now not only openly neurodivergent, but proudly so, and supported by a growing community of allies. Yet the other side of the coin is that as the legal community becomes more vocal in its support for and celebration of neurodiversity, which it does with the best of intentions, some narratives can be unhelpful. 

Toxic positivity, the reluctance to accept the negative by fixating on the positive, is not unique to conversations around neurodiversity, or even wider disability. It is often well-meaning but ignores the difficulties experienced by individuals. Toxic positivity sends the message that it is not acceptable to feel or experience anything perceived as negative, and is therefore likely to shut down communication and encourage silent struggles. Mindset, no matter how positive, cannot dismantle societal barriers or change brain structure.

The term ‘inspiration porn’, coined by the late disability activist Stella Young, refers to society’s objectification and reduction of disabled people as sources of inspiration, motivation, and admiration, solely for living their lives (Young, 2014). It is important to distinguish inspiration porn from celebrating or appreciating neurodivergence, neurodiversity, and the achievements of neurodivergent people, which is welcomed (and needed). Inspiration porn encourages the idea of ‘overcoming’ neurodivergence which in turn can perpetuate harmful, ableist, and even eugenicist views. It also allows society to relinquish responsibility for addressing the inaccessibility and dismantling the barriers it upholds by implying neurodivergent individuals could just ‘try harder’.

One of the most controversial takes on neurodivergence is that of superpowers. At first glance, the portrayal of neurodivergence as a superpower is positive and supportive. However, looking beneath the surface, it can unintentionally have the opposite effect – disabling and alienating. Aside from the potential to be infantilising – think lycra-costume-clad children – this narrative can also dehumanise. Marking neurodivergence out as a superpower implies abilities beyond human capability and that neurodivergent people are superhuman. Not only is this unrealistic, but it can set people up to fail by creating unachievable expectations and perpetuating unhelpful stereotypes and stigma.

These misunderstandings can act as a bar to support by ignoring or invalidating the challenges and barriers neurodivergent individuals come up against. Neurodivergent individuals have strengths and weaknesses like anyone else – the peaks and troughs are just more pronounced. Additionally, there is a failure to recognise that strengths can come with their own challenges (e.g. remembering to eat, drink, or take breaks when in hyperfocus). Arguably, the superpower narrative can be ableist in disregarding the perceived ‘negatives’ and pushing the idea that neurodivergence is only valuable if ‘exceptional’ or ‘special’. The overenthusiasm for strengths and abilities can alienate those who do not feel they fit into the superhero costume, discourage disclosure and seeking support. Lacking the safety to disclose requires and encourages masking which research has shown to be detrimental to mental health and to increase the risk of burnout.

None of this is to say that positivity and championing neurodiversity is not empowering or supportive, or that we shouldn’t be optimistic and celebrative – it is crucial to recognise and value neurodivergent ability. However, recent evidence suggests that something needs to change and that a balance needs to be struck. It is evident that existing narratives are not fixing the real issues, and that celebration, while important, can only get us so far.

Research reveals scale of non-disclosure

neurodiversikey®’s unprecedented surveys revealed significant issues for neurodivergent people across legal education, training, and practice. Some key areas of concern include neuroinclusivity, discrimination, provision of reasonable adjustments, and disclosure.

Of 257 neurodivergent law students and legal professionals, just 1 person completely agreed ‘the legal sector is neuroinclusive’, with 74% mostly or completely disagreeing. The sector’s neuroexclusivity was confirmed with over half (51.4%) of respondents reporting discrimination on the basis of their neurotype(s), and 42% of respondents reporting refusal or non-provision of reasonable adjustments. These shocking figures demonstrate a widespread problem not ameliorated by positions which dismiss or minimise the difficulties faced by neurodivergent people.

This neuroexclusivity has a knock-on effect – reluctance to disclose and request reasonable adjustments out of fear of discrimination. In order to avoid discrimination in the legal sector, 74.6% of respondents have opted not to disclose their neurotype(s), and a staggering 76.3% have opted to not request reasonable adjustments.

From these results, it is obvious that there is a lack of understanding and acceptance of neurodivergence. Current approaches are clearly not working – focusing on positivity and ability to the exclusion of reality is not enabling or empowering, but neuroexclusive. Neurodivergent individuals should be safe to disclose and obtain the adjustments and support required to thrive, not just survive.

Taking a holistic approach in chambers

In terms of messaging, balance is the key. Recognising the ‘spiky profiles’ characteristic of neurodivergence enables a more holistic approach to be taken. Neurodivergence undoubtedly comes with unique strengths which, until recently, remained unrecognised and unnurtured, taking a back seat to the challenges. However, when the strengths and challenges are neither over- nor understated, it is easier to accurately identify areas requiring support or accommodation, in addition to structural barriers. Acknowledging both sides of the coin is essential to preventing dehumanisation and exploitation, and to valuing neurodivergent people as their whole selves, not just for any unique benefit they may bring. Without a realistic understanding of neurodivergence, it is impossible to promote acceptance, inclusion, or belonging.

As for practical steps, the most critical is to create an environment in which it is safe to disclose. This in itself is a multistep process which will look different depending on the circumstances. Examples might include: mandatory neurodiversity training; neurodiversity policies (including clear, easily accessible information on reasonable adjustments); providing opportunities to increase the visibility of and to amplify the voices of neurodivergent members of chambers. An oft-neglected area to consider, and of increasing importance as numbers of openly neurodivergent barristers rise, is that of disclosure in the context of client relationships, and how chambers navigate this. For example, chambers may consider adding a supportive statement to their websites, or amendments to policies managing the relationship. Finally, whatever the circumstances, a commitment to openness, flexibility, and understanding is non-negotiable.

To summarise, while prevailing messages about neurodiversity are typically shared in the hope of advancing the cause and supporting the neurodivergent community, those which fail to take a rounded view of neurodivergence have the potential to cause more harm than good. Care must be taken to avoid the pitfalls of toxic positivity, inspiration porn, and the superpower narrative, without taking away from the rich pool of talent neurodiversity brings. Instead, chambers should embrace both sides of the neurodivergent coin, and create an environment which facilitates disclosure through safety. 

References

Of 257 neurodivergent law students and legal professionals, just 1 person completely agreed ‘the legal sector is neuroinclusive’, with 74% mostly or completely disagreeing. See Uncharted Territory, neurodiversikey® survey results, April 2024.

‘I’m not your inspiration, thank you very much’, Stella Young, TEDxSydney, April 2014