Jessye Kilburn
BCL/LLB III, McGill University Faculty of Law
1 September 2018
Photo: Clara Brett Martin from In the Hills magazine
In 1891, Clara Brett Martin wrote to the Law Society of Upper Canada, requesting to be allowed into the ranks of lawyers that until then had been exclusively men. Her request was denied, sparking years of debate in the Canadian legal profession before she was finally called to the bar in 1897.
The issue was debated at the Ontario Legislature, where prominent lawyer William Meredith told the House that women “would avoid the legal profession because their obsession with fashion meant they would be unwilling to wear the same official robes as men.”
Years later, after Martin had established herself in the legal profession, the Star Weekly wrote a feature about Canada’s first female lawyer. The article noted with approval that Martin had not become “masculinized,” proclaiming she was “proof that a handsome woman can participate in public affairs without sacrificing the graces of a kindly nature.”
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The landscape of Canada’s legal profession has changed dramatically in the years since Martin broke new ground, but tensions stemming from the legal profession’s history with gender are still present today. Female lawyers still face what a landmark American Bar Association report on women in law called “a longstanding double standard and a double bind”: women are criticized either for being either “too ‘soft’ or too ‘strident,’ too ‘aggressive’ or ‘not aggressive enough.’”
Norms of professionalism in the legal profession have been shaped by cultural values associated with masculinity, given the profession’s long history as a man’s game (and in particular, a white man’s game). A good lawyer must be assertive, competitive, forceful, and avoid showing weakness or emotion, behavioural norms that are typically culturally valorized as “masculine.”
Women, on the other hand, face a tension between what is considered “professional” and what is considered “feminine”. A female lawyer must prove that she is strong and assertive enough to play ball in a man’s game, and yet she must never “sacrifice the graces of a kindly nature” lest she be perceived as “masculinized,” bossy, pushy, stubborn, cold, or unattractive. As the American Bar Association report put it, “what appears assertive in a man often appears abrasive in a woman.”
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This double bind is visibly embodied in a female lawyer’s daily decision of what to wear, as expressed by the tagline of the popular fashion blog www.corporette.com: a resource for “overachieving chicks who need to look professional but want to look fashionable.” The blog’s host and her many readers use the platform to discuss, for example, advice on how to assess whether a judge is too conservative for pantsuits pointers on the relative formality of different colours of pantyhose, and what to do about button-down shirts that gape.
Finding the perfect marriage between professional and fashionably feminine is an elusive quest, particularly when the norms of professional dress have often descended from menswear. While a men’s suit is considered appropriate attire both to—for example—attend a wedding and to go to the office, a woman’s more “feminine” wedding-guest dress is far removed from the “professional” attire she would wear to work.
And yet, oddly, while women’s suits resemble those of men in many ways, a skirt suit is still considered the more conservative and professional option by some. Corporette recommends that “if you’re interviewing in the South, for certain judges, or with senior partners over age 75 or so, you still may want to play it safe and go with a skirt suit.” Evidently, these gender dynamics become even more complex for those who are gender non-conforming or for women who simply prefer to dress in styles that are more traditionally masculine.
Another challenge is, of course, high-heeled shoes, which are full of contradictions: they are simultaneously “bold and teetering, leg-lengthening and stride-impairing, empowering and constraining.” High heels were originally the attire of men, but after Napoleon made a point of wearing flats, heels were “relegated to the realm of the impractical, the irrational, the superficial … which is to say, to the realm of the traditionally feminine.” Today, in choosing their shoes for work, women must grapple with the fact that heels “simultaneously raise up their wearers and, by virtue of their heights, hold them back as they move through the world.”
As trial lawyer Lara Bazelon recounts, “Clothing may seem trivial, but what a woman wears at trial is directly related to her ability to do her job. When impeaching a witness to expose a lie, the men in my office would march up to the witness box, incriminating document in hand, and shove it in the witness’s face. I had to approach witnesses gingerly—because I was balancing on heels.”
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William Meredith’s hope that the official robes required in court would keep fashion-obsessed women out of the legal profession has obviously not been realized. Nonetheless, in navigating professionalism and femininity, female lawyers and judges have made their mark on the norms of court attire over the past century.
Vendors of legal robes now sell “lace tabs” as accessories to a lawyer’s black court robes, opening up the possibility for the expression of femininity even within official courtroom attire. Most famously, Ruth Bader Ginsberg is known for making a statement with the wide array of collars she dons over her judicial robes.
The Ontario Superior Court’s Practice Direction allows an exception to its usual gowning policy: “counsel who are pregnant are free to modify their traditional court attire in order to accommodate their pregnancy as they see fit, including dispensing with a waistcoat and tabs.”
The rules on attire at the Cour du Québec give separate instructions to men and women, opening up the space for expression of an alternative aesthetic to some extent. However, the rules still read as though the guidelines for women are an afterthought or a deviation from the norm, as well as prescribing an unhelpful gender dualism:
No attorney shall be authorized to address the court unless wearing either a black robe, long-sleeved black vest and dark trousers with a white shirt, collar and bands, or a black robe, closed in front, with a raised neck opening, long sleeves and white bands. In lieu of the foregoing, female attorneys may wear a black robe and white bands with a black long-sleeved dress, or a dark skirt or trousers and a white long-sleeved blouse.
Despite some evolution in the norms of professional attire, expectations about visual aesthetics still play a strong role in the evaluation of professionalism, power, and legitimacy. In what is supposedly a cerebral and rational profession, courtroom decorum and professional image are ideals obtained through sensory endeavours, with lawyers spending considerable energy on communicating professionalism by how they visually present their bodies.
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Of course, the amount of energy required to conform to the standard of professionalism varies depending on the social expectations placed on your particular body. For a straight, cisgender, middle-class and conventionally-masculine man, it has probably been normal to dress up in a suit for formal occasions ever since middle-school graduation. A suit is thus a style of clothing he already knows how to inhabit when he is faced with his first professional networking events or interviews during law school. On the other hand, the first time many women will wear a suit is at the moment she starts job-seeking, meaning a quick adjustment is required to feel comfortable and confident in an alien style of clothing.
For many men, a professional look costs little more than the price of the suit and the dry cleaning, along with a few minutes in the morning to comb his short hair and perhaps to shave. For male lawyers who adhere to the conventional standards of professional dress, “their physicality is unremarkable—essentially invisible.”
Women’s physicality is more intensely scrutinized. Being “well-groomed” and wearing makeup is seen as a sign of professionalism: for example, one study found that “a well-groomed woman of average attractiveness makes about $6,000 more annually than an average-looking, averagely-groomed woman. She also makes about $4,000 more than her better-looking, but less put-together coworker.” Many women feel they need to tame their long hair with blow-dryers, straighteners or curling irons, which is costly in time and effort. Black women, in particular, face a stigma that having natural hair is unprofessional. As Hadiya Roderique (formerly a lawyer at Fasken and author of the wave-making Globe and Mail article “Black on Bay Street”) recounts, her preparation for interview week as a law student caused her to realize that she had never met a black lawyer with natural hair.
In Roderique’s experience, despite making every effort towards a lawyerly appearance, skin colour and gender are sometimes more visible than even a Holt Renfrew suit:
A week into my time as an associate, I wore my new black pinstriped Holt Renfrew suit to work. Two assistants joined me in the elevator. One of them, attempting to be friendly, said “You’re new. Who do you work for?”
“I’m in the labour and employment group,” I responded.
“I mean, which lawyer?” she replied. I realized that despite my suit, she thought I was an assistant. She hadn’t even bothered to look down past my face, hadn’t noticed my outfit or the sharp leather briefcase I had rewarded myself with for getting the job.
“I’m an associate,” I said, pointedly. She blushed beet red, finally seeing my clothes. Finally seeing me.
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While Clara Brett Martin certainly set a ground-breaking precedent for inclusion in the legal profession, the struggle didn’t end there. Full inclusion means more than just allowing anyone into the bar. It must also mean that we finally see one another, finally see the person in one another. This doesn’t mean that we are blind to race, gender, or other visually-identifiable social characteristics, but rather that we refuse to make pre-emptive evaluations of someone’s professionalism based on what we see. This frees us all to spend our energy on being substantively better lawyers.
The legal profession proclaims that it values detached rationality and impartial logic. Yet, the law is not detached from the human bodies that argue, decide and create it. The law is formed by bodies that have particular characteristics of gender expression, racial identity, class distinction, and perceived ability.
The legal profession may no longer be so bold as to deny access to women or people of colour, but there are still countless subtle, implicit, polite barriers to full participation. We must recognize and question our deep-seated and subtle expectations about appearance, as one way to make these barriers visible and then to dismantle them.
All links accessed August 18, 2018.
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