A recent article in Slate reported that female lawyers who dress too “sexily” are said to be a “huge problem” in US courtroom. Some courts have instituted “dress codes” and some universities have instructed their students on what appropriate dress should be. The dress codes and instructions have included instructions for men, but have concentrated on female clothing. When I posted this on Facebook it started off a discussion. A number of male lawyer friends made the point that men were subject to dress codes too, and that men who didn’t wear ties or who wore short sleeves would be likely to contravene the dress code. This is true. However, I think that women have to navigate a vastly more complex situation.The Slate piece explains as follows:

In 2010, Ann Farmer wrote a piece for the American Bar Association’s Perspectives magazine on the confusing, and sometimes contradictory, standards facing female lawyers. She found that even before the pantsuit shocked the profession, female lawyers struggled to adhere to a careful balance of masculine and feminine touches; a typical uniform was skirt suits that fell below the kneecap, with floppy, feminized bowties affixed around the neck. Women in other male-dominated fields, like business, technology, or journalism, are rarely so scrutinized; some are even celebrated for their embrace of brightly colored dresses and stiletto heels. Why are the clothes female attorneys wear still contested territory? It’s partly because the law moves slowly, and older male judges still reign behind most benches. It’s also because “women lawyers today are faced with many more fashion choices than male lawyers and, therefore, have more opportunities to screw up,” Farmer writes; while men have a fairly standard uniform, women are forced to change outfits depending on the tastes of the presiding judge.

While Farmer says that few judges state a preference for women to wear skirts outright, some “get the message out through law clerks, who will sometimes intercede before a hearing begins.” Even less staid judges have conflicting personal tastes. As Chief Judge Carla Craig of the U.S. Bankruptcy Court for the Eastern District of New York told Farmer: “The color pink, no. Hoop earrings—I have seen those. And they looked great, actually.”* And while men have plenty of older colleagues setting an example for them, many law firms still lack female partners who can show the rookies how it’s done. (Only 4 percent of the top 200 law firms in the U.S. have female managing partners.) Despite the Loyola memo’s dismissive note, “ridiculous lawyer TV shows” have actually provided a model of dress for some female attorneys. When fictional Assistant District Attorney Grace Van Owen debuted a silk, V-neck blouse on L.A. Law, female lawyers took note. “We called it our L.A. Law blouse,” U.S. District Judge Barbara Lynn told Farmer.

Judges who school female attorneys on how to dress are annoying, and the limitless choices of the female wardrobe are confusing. But having the opportunity to dress differently can also have its benefits. Lynn told Farmer that while a bold fashion choice was a risky move, it “could draw attention to you and away from your opponent” in a positive way. A recent Harvard Business School study found that while dressing distinctly might compromise a person’s access to “shared group identity and automatic group trust,” it can also make her appear confident and influential. In 2009, a federal judge complained that he’d seen an attorney argue her case looking like she’d stopped in “on her way home from the gym.” Then again, that woman won her case.

There are a number of points here. Personally, I would not choose to wear a very revealing top or a very short skirt to court. I don’t generally dress in that way. But women are in a Catch-22 situation. If we dress down, we’re dowdy and charmless, if we dress up, we’re far too sexy. And it is not only male colleagues who judge us; I’m afraid that female colleagues are equally likely to be judgmental. It’s no wonder that women are having difficulty getting the balance right.

The Slate article observes that women have a vastly greater range of fashion choices to choose from. I would add to that that women’s clothing is basically more revealing than male clothing, and that this starts very young (I found it very hard to find a pair of non-skimpy shorts for my eight year old daughter this summer). Indeed, much of it (even the professional clothing) is tailored and sold on the basis that it will make you more alluring. This makes it harder to avoid being “sexy” in some way or another.

A while back there was a cartoon which imagined what Superman would look like if he had to wear a costume of the kind typical worn by female superheroes…the result is not really safe for me to link to. However, in the light of this debate, I wondered what would it look like if I dressed a man in a male version of a female suit (like Superman)? I took an image of a man wearing a suit from a catalogue and sketched him wearing female professional clothing instead (please note he can no longer put his hand in his pocket because most female clothing does not have pockets). The result would probably get him thrown out of any courtroom. Heck, it might get him arrested.

Chances are that you are probably choking on your coffee now. But this is quite a normal outfit for a woman to wear. (Okay, the skirt is probably a bit short, but the top is not insanely low cut at the front). What I’m trying to say is that female clothes are intrinsically more revealing and therefore much more likely to be problematic. My drawing is intended to illustrate this in a graphic manner. This is a result of societal expectations, the clothing industry, and the choices of women themselves.

Reflecting the research cited above, it is generally as true in Australia as in the United States that the higher the court, the more formal the dress. Barristers of either gender who appear before the High Court wear the garb customarily worn in the Court of Appeal of the State in which the barrister ordinarily practices, which is usually a gown, or a gown and a wig. And the judges of the High Court simply wear black zippered robes with no wig. Accordingly a female barrister appearing before the High Court is unlikely to have the problems described by the Slate article.

When I was younger, I was never a fan of the idea of robes and wigs, seeing them as part of an elitist tradition. I’m still not that big on the wigs (they tickle and give you “wig hair”) but in light of the above, I think that robes in court have definite positives. They are a unisex uniform, and they mostly cover up any perceived fashion faux pas.