Female Attorneys Seek to Ban Men from the Courtroom

The American Bar Association is weighing the institution of an anti-harassment policy explicitly banning sexism.
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Publish date:
August 9, 2016
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sexism, harassment, lawyers, everyday sexism

Our legal system has 99 problems and men are...well OK not all of them, but definitely many of them. Did you know that the American Bar Association doesn't have a flat ban on sexist behavior, though bar associations in 23 states and the District of Columbia thought sexism was enough of a problem to put one in place?

The ABA is currently rethinking its lack of ban given that a growing number of women are entering the legal profession and a growing number of men are demonstrating that they just can't handle it. Yesterday, Resolution 109 passed with overwhelming support, indicating that lawyers want to put a kibosh on sexual harassment. Apparently the sight of a woman in the courtroom (don't even get me started with a woman on the bench) is too much for some delicate male constitutions to handle and their inability to control themselves is leading to some problems.

Like, say, policing female attorneys for their tone, referring to fully grown adult professional ladies as "honey," and making sexist remarks to pregnant women who are under the foolish impression that they can both have children and work in careers they love. Despite the fact that more women are entering the legal profession, just 18 percent of partners at top firms are women, and they tend to be very underrepresented among trial attorneys.

The law is a heavily male-dominated profession, which is why this kind of casual, everyday sexism really matters. It's not just that it's annoying and infantilizing, though it is both of those things. And it's not just that it makes the sexism of the world in general inescapable, though it does.

It specifically acts to undermine female attorneys, which serves to retrench sexism in the profession. It suggests that women working in the legal field are some kind of rare and special breed, not actual attorneys, and sets up sexist double standards of behavior. When women are scolded for failing to be sufficiently ladylike, men aren't getting the same treatment — so this isn't about "professional standards," but about gendered expectations of behavior. It makes it harder for women to get ahead in the legal field, which in turn contributes to their statistically poor representation among the power players.

Making sexist comments demeans individual attorneys, but it can also jeopardize their cases. Juries pay attention to the goings-on in the courtroom, and when one attorney is constantly sniping at the other in a way that's designed to make her appear weaker, softer, and less capable of doing her job, that becomes a factor when the jurors are weighing information.

No matter what the jury instructions are, if you've watched the prosecutor being repeatedly told she's being "inappropriate" by the defense and sometimes the judge, that tends to plant a seed of doubt. Maybe she didn't prove her case that well. Maybe that key witness she was relying on wasn't that strong. Conversely, when it's the defense that's being hounded around the courtroom for being a woman, despite the fact that the burden of proof lies on the prosecution, there may be a sense that the defense didn't adequately "prove" that her client wasn't guilty.

Women are supposed to sit there and take it when people are hurling sexist comments at them. Protesting draws attention to the situation and can make an attorney appear like one of those fussy women's lib types that can't take a joke. It's up to judges to actually enforce professional standards of behavior — as in "don't be a sexist jerkwad" — but not all of them do. In fact, they're often the ones joining in.

Remember when Judge Royce Taylor issued a special dress code for women appearing in his courtroom, telling them to leave "suggestive garments" at home? The Tennessean even managed to find a female attorney for comment, and she apparently felt that: "Some ladies are dressing in a manner that should be bothersome to other lady lawyers who strive to be professional."

I wasn't aware that the way other people dress could somehow affect one's own professionality, but I am not an attorney, so maybe there are some finer points I'm missing here. But this wasn't the only time a judge targeted women in particular for how they dressed in the courtroom. In 2014, U.S. District Court Judge Richard Kopf wrote a screed on his personal blog about how women dress in court, suggesting that legal clerks refer to some attorneys as "ignorant sluts." Loyola Law School sent out a stern memo about professional appearance that same year, while last year, attendees of a Virginia State Bar mandatory continuing legal education session were treated to some sexist remarks — from a female attorney, no less — about the nature of showing legs in court.

When stories about absurd dress code and "professional appearance" standards make their way out of legal circles, most people understand that they are sexist, though they may not realize that they are only an outward manifestation of an internecine sexist framework. While many aspects of the law, especially in court, are quite conservative, men aren't the subject of complicated dress code advisories from judges, fellow attorneys, bar associations, and law school deans.

Women, on the other hand, are constantly reminded that if they wear skirts, they can't be too short, and the outfit has to include pantyhose. High heels aren't acceptable, but neither are flats. Their hair needs to be perfectly coiffed and "professional" (Black women with natural hair need not apply), their makeup needs to be artful and unobtrusive. Jewelry should be tasteful. No gaudy colors. The rules are constantly getting more complicated, while men are more or less left with "make sure your suit isn't filthy and maybe don't wear tennis shoes, yeah?"

Appearance standards are only one of the most outward manifestations of sexism in the legal profession, though they're constant, and they're also very expensive. It costs serious money to wear clothing that looks sufficiently conservative for court, and upkeep on that clothing costs a lot of money too. That's before paying for haircare and makeup. The "being a lady tax" gets spendy.

Attorneys may try cases involving harassment and discrimination, but many weren't actually bound by anti-harassment rules in their own ethics policies until yesterday. The attorneys who wanted to change that faced opposition from people who claimed it would "damage the attorney-client relationship," although it's not really clear how this would happen. Opponents positioned this as a "free speech" fight, which is a popular retort to any attempts to set reasonable behavioral standards on people who are supposed to be acting like professionals.

The fact that the ABA didn't already have a clear anti-harassment policy is a rather disturbing testimony to the state of the legal profession. The status quo put the burden on women to not be harassed (don't dress suggestively, behave like a lady, actually just don't be a lady at all TBH that would be perfect), but the responsibility for harassment really lies with the men who are doing it. Male lawyers are just going to have to learn to deal with the fact that women practice law too, and they're not going away. The ABA's move yesterday signals that it's ready to start taking the issue seriously, providing women with backup when they seek remedies for harassment.