Friday, March 28, 2014

Should Women Adhere to Sexist Conventions Anyway, for the Sake of Their Clients?

This is the question that was posed to me by a law professor acquaintance, following Eugene Volokh's piece in the Washington Post.

After I'd typed out a lengthy response on Facebook, I realized it was essentially a follow up blog post. Here it is:

 I think Mr. Volokh is broadly on the right track, but is falling into the same problematic rhetoric, founded on stereotypically sexist tropes, that plagues Judge Kopf's piece: that women are prone to trash talking each other or becoming jealous based on one another's level of beauty or style of dress, that the beholder's "biological" reaction to the woman's appearance is the woman's responsibility or fault, even while he acknowledges that what constitutes "too revealing" varies based on factors that have nothing to do with the woman herself, and that women deliberately use their sexuality to attempt to gain advantage. His comment about sexualized environments is confused, as he first says that he has heard that in such an environment men will tend to objectify women regardless of how they are dressed, and then he turns around and says that women should try to minimize this by policing their attire.

The analogy he tries to draw between women's attire and religious attire is at best a poor one, and at worst a straw man. Just being a woman, especially a woman of a visible minority, puts one at a similar disadvantage to that experienced by people wearing obvious markers of their religious or cultural identity. It's fairly common to hear would-be clients say they'd prefer a male lawyer as soon as they hear that a lawyer is a woman, and that has nothing to do with the woman's appearance.

Of course, both Judge Kopf and Mr. Volokh are expressing their opinions with respect to an imagined woman who is wearing "revealing" clothing - that is, clothing that they imagine to be revealing. The judge has admitted that he invented the woman lawyer he talked about, and that he was taking literary license in setting the scene he described. Volokh is responding to that imagined scenario, in equally vague and hypothetical terms.This makes their commentary even less useful, and more unnecessarily blaming of women, because we have no actual benchmark from which we can hope to work out what is "too revealing" or "too sexy." In fact, even when women play into the correct societal norms, we are judged and deemed too sexy/casual/frumpy/etc.

At the risk of raising my own point that might seem like a red herring or straw man, there are loads of men in the professions who wear well-fitted suits, are well groomed and charming, and who generally look like movie stars. They are definitely distracting! It would be easier to focus if they didn't wear amazing smelling colognes, or quite such perfectly tailored trousers and jackets, or lay on the charm so thick with court clerks and registry staff. But there's no collective pearl clutching about their lady killer ways, because we don't scrutinize men for any signs of sexiness, and then expound on that sexiness and its meaning and effect, the way we do with women.

In the end, I think that the degree to which women lawyers try to adhere to certain sartorial norms, whether or not they play into sexist conventions, is not closely related to the possibility that we will be accused of dressing inappropriately or too sexily.

Wednesday, March 26, 2014

The Woman Professional's Wardrobe Minefield (again)

[Note: in this post, I talk about a blog entry written by an American judge. He uses only his initials to blog, and I am not familiar with the conventions of addressing or referring to judges in his jurisdiction. I fear that the way in which I have referred to him may appear disrespectful, and I want to be clear that if that is the case it was not my intent.]
In my final year of law school, I had the great honour of participating in a competitive mock trial program. Most students moot during the second year of law school, but I had spent second year focusing on black letter courses (the meat and potatoes of law, for you non-lawyers). I had two small children at home, and managing my time effectively while maximizing my law school performance and nurturing my family relationships was challenge enough without mooting, until I was sure my transcript was otherwise well-rounded.

Law school had opened my eyes to the degree to which women in professional careers are judged on criteria that are wholly unconnected to our abilities.* We are too young, or we are too old, or we are too dowdy, or too sexy, or too curvaceous, or too frail looking, or too quiet, or too loud, or too fertile. I had learned this. So I went into the first meeting with my moot partner and our coaches, all men, dressed for the job. Minimal, professional makeup, small pearl earrings, conservatively bobbed and straightened hair, dark grey pants suit with off-white blouse, certainly no cleavage, low heels. The coaches were an older Provincial court judge and a Crown counsel in his 40s. They mostly addressed their comments to my male partner, congratulating him on the honour of getting to compete in the mock trial, telling him about all of the opportunities this would open for him. They spoke less to me, and when they did their comments were cautionary or negative. It seemed as though they had spent the last 20 years stocking up on criticisms and complaints about the attire and conduct of the women around them, and here at last was someone to whom they could vent it all. At one point the judge, who was at least 10 years older than my father, looked straight at my breasts and told them that I shouldn't wear low cut tops to court, because "from the bench the judge can see right down your shirt, and the male judges don't mind it so much, but the lady judges don't like it." His eyes traveled back to my face as he said this, and he flushed bright pink. By the time I got home that night I was so outraged that I considered quitting the program. Over the coming weeks, he tried to trip me up on a couple of occasions by saying needlessly provocative or alarming things while I was practicing oral examination. This "hard knocks" approach would not have been so bad, had any of it been directed to my partner. But, no: he was singling me out.

I went on to win that mock trial, and the Western Canada one, and to compete on the national level. I did extremely well in law school. I clerked at the BC Supreme Court, and in that experience and my subsequent articles and practice, I was reassured that most of the men I encountered were professional enough to keep their thoughts about the female bodies around them to themselves. I also spent more time with the Provincial court judge who had coached me, and watched him in the courtroom, and I learned that he was a good judge and generally speaking a decent person. But my regard for him was never as high as it could have been, if he'd managed to avoid being such a "pig and a prude", in the words of another judge who has recently weighed in on the subject of how women dress in the legal profession.

The judge to whom I'm referring, RGK, wrote a blog post in which he identified himself as a dirty old man before saying that it is true that women lawyers whose attire is "too sexy" are a "huge problem" in the courtroom. He went on to give the example of a woman lawyer he knows who appears to be truly excellent at her job but, most notably to him, has an "ample chest" and wears short skirts. He claimed that all the female law clerks flocked into the court to see how this lawyer was dressed one day, and that they were all very upset about it and called it unprofessional. Having been one of several female law clerks in my cohort, I have trouble imagining a situation in which all of us would take time out of our day to attend a specific courtroom for anything less than a hearing or trial of utmost importance. Jury selection on the trial of the decade? We were all there. A lawyer's unprofessional attire - and believe me, many lawyers of all stripes and genders dress inappropriately - would not have brought us running. And perhaps he doesn't realize it, but in this account the judge was portraying every single female law clerk in the building as a catty, fashion-focused gossip. He was choosing to diminish them, to detract from the fact that they are legal professionals, by focusing on his perception of their conduct toward another woman, as much as he was doing the same to the woman lawyer in question.

This broad stroke, stereotyping approach is not surprising when one sees that the first of his "rules" for young women going to court was "You can't win. Men are both pigs and prudes. Get over it." That is not a rule. It's a condemnation. It is factually inaccurate, because while some men are pigs, and some are prudes, and some are both, certainly not all or even most are. Beyond that, however, I am dismayed by his apparent position that these are immutable characteristics of men, over which women are simply required to get. We all have character weaknesses, and many of them happen to skew along gender lines. Some women may be catty, or gossips, and some men may be pigs in their attitudes towards women. But these are things that we can and should change in ourselves. I expect my sons, who are still quite young, to control their tempers and their baser instincts. I expect far, far more from a grown man and a judge. I have absolutely no problem with the fact that judges, like everyone else, are sexual beings who notice other people. But it is not my job, and it is not the responsibility of women everywhere, to manage other people's urges for them.

I am not for an instant suggesting that women should wear inappropriate clothing to court, any more than I would suggest that men should. In fact, ideally female lawyers should have as much of their skin covered as the male ones do. In my view, a lawyer should be dressed neatly and in such unremarkable and plain clothing that upon leaving the courtroom the judge would be hard pressed to recall anything at all about the lawyer's outfit. As our clients' advocates, we should be a face and a voice. The only memorable thing about us should be our argument. But this is a surprisingly difficult thing to do, and it is doubly so when one happens to have, as RGK puts it, an ample chest. I am relatively small framed and top heavy. Suits that fit me through the shoulders and are the appropriate length in the sleeves are too tight through the chest. Button down shirts look boxy and sloppy if they're not fitted, and look too suggestive if they are. Trousers that fit properly accentuate the thighs and rear, and skirts and dresses create a litany of issues. I have to tread a razor thin line between clothes that look unprofessional because they are too flattering, and clothes that look unprofessional because they are unflattering. One could argue that I should simply go with unflattering, but the sad reality is that there is a public bias against women who look old, or who look fat, or who look poor, or who look disheveled. Specifically, women who appear to be any of these things are perceived as less powerful, less intelligent and less assertive. This perception is a significant disadvantage in a litigation practice.

So RGK is absolutely right that we can't win. There is an extremely small range of clothing that both looks good and professional on me and is appropriate for a courtroom, and even staying within that range does not completely protect me from being perceived as inappropriate because I happen to have breasts that are difficult to hide. And that's my experience as a confident, independent almost-40-year-old, who is not trying to climb through the hierarchy of a big law firm. It is far more difficult for the average 20-something, who has had less time to figure out what works on her body, who has little experience with dressing professionally at all, and who is navigating a minefield of assumptions about her worth as a lawyer that are based on such irrelevant considerations as her age, weight, build, level of wealth, relationship status, and fashion sense. Maybe she does dress too sexily. Maybe she dresses inappropriately. Maybe she does it for attention (as RGK's second "rule", "it's not about you", seems to suggest), although that happens less often than people think. Maybe she could use some good advice and constructive tips on courtroom attire. But RGK's post is neither of those things. It is just more minefield, more assumptions about women lawyers based partly on how they dress, but more fundamentally on how the judge finds he responds to them.

There is actually a great opportunity here for older male lawyers and judges - or really any men in a position of relative power - when confronted with a younger woman who they think has dressed inappropriately. It's an opportunity to ask yourself why you find it inappropriate. Would it be inappropriate on anyone, or just on that woman because you find her attractive? Is the issue actually with her attire, or is it with your response? If the attire is the issue, and it's enough of an issue that you wish to publish an open letter about the state of young peoples' attire in court, here are my "rules" (don't worry. They're really just suggestions):

1: Focus on the gender neutral. Describe what is appropriate courtroom dress for all people of all stripes. Neutral, neat, conservative. Plain. The perfect outfit for court is the one that draws no attention at all, because you want them hanging on your every word, not distracted by what you're wearing.

2: If you must draw specific examples, focus on the non-sexual (yes, even if the sexiness is what really gets to you). Loud patterns, flashy shoes and accessories, ill-fitting or messy clothing are all distracting. Long sleeves, high necklines, and covered legs are appropriate for all lawyers of all makes and models.

3: Acknowledge that it can be hard to dress appropriately for court, especially if one doesn't fit the mold, and that the best people to advise you on how to dress for court are those who are like you, who have done it successfully. There are resources that provide constructive tips. Maybe link to some.

4: Acknowledge that women, especially young women, get singled out and sexualized too much in this field, and that you can and will be a part of changing that phenomenon instead of perpetuating it.
*In my first week of law school, a second year student who was about 11 years younger than me asked me what kind of law I thought I'd go into. I said I had heard that it is beneficial to at least article at a big firm, to get a well-rounded articling experience. He said "oh.... well, those firms only take articling students who get really good marks." I asked him whether he thought I didn't get good marks because I was a woman, because I was a mature student, or because I was a mom. He didn't respond.

Sunday, March 02, 2014

The Tax Collector

There is a poem my father showed me in an English textbook when I was young. I believe it is called The Tax Collector, but I cannot find it anywhere, in print or online. So I cannot properly credit its author, and I fear I may have some of it wrong, but here it goes:

While riding through rural Ruritania, collecting air tax for the mogul, I was summoned to the roadside by a dragon. 
It was her scales I was not prepared for. Red, they were. Like blood on a dime. Like oil on an apple, and anyway I stopped. 
"Kiss me," she said. 
They really were the most remarkable scales. Like thumbprints on a ledger. Like teardrops, in consomme, and when I had done as she had asked (kissed her, that is), and she was blonde again, and creamy thighed, I did not know how to tell her it was the dragon I had loved.