Dress codes and Judge Kopf’s ‘dirty old man’ post

Like many people, I was somewhat put off by Judge Kopf’s “On being a dirty old man and how young women lawyers dress” post (Hercules and the Umpire). But despite my disagreement with some aspects of how that post framed the issue, I think it makes an important practical point.

Here’s the entire post:

More than a decade ago, I freaked out when tall, statuesque, and beautiful daughter Lisa showed up at her older sister’s (Marne’s) wedding in a Catholic church (that we “borrowed” out of respect for the groom’s religious preference) in a low-cut dress. Poor Joan, at my insistence, and at the last moment, rummaged around in the church’s “lost and found” to locate a demure white sweater for Lisa to wear over her very revealing frock. I was spitting nails. Marne was in tears. The groom had no idea what the fuck had just happened. Lisa shot me daggers throughout the ceremony. Once again, Joan labored under the “evil stepmother” moniker. In short, the last time the Kopf clan entered a church together as a family was one of those memories better left forgotten. And the silly thing about this kerfuffle was that it was all about an old guy’s sense of decorum.

In candor, I have been a dirty old man ever since I was a very young man. Except, that is, when it comes to my daughters (and other young women that I care deeply about). And that brings me to the amusing debate about how (mostly) young female lawyers dress these days. See e.g, Amanda Hess, Female Lawyers Who Dress Too “Sexy” Are Apparently a “Huge Problem” in the Courtroom, Slate (March 21, 2014).

True story. Around these parts there is a wonderfully talented and very pretty female lawyer who is in her late twenties. She is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes.

In a recent case involving this fine young lawyer every female law clerk in the building slipped in and out of the courtroom to observe her. I am not exaggerating. I later learned that word had gotten around about this lawyer’s dress. Acknowledging that the lawyer was really good, the consensus of the sisterhood was uniformly critical. “Unprofessional” was the word used most often. To a woman, the law clerks seethed and sneered. They were truly upset.

From the foregoing, and in my continuing effort to educate the bar, I have three rules that young women lawyers should follow when considering how to dress for court:

1. You can’t win. Men are both pigs and prudes. Get over it.

2. It is not about you. That goes double when you are appearing in front of a jury.

3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.

I don’t much care for the tone of the post. It seems to me needlessly disrespectful both to the women in the story and to men. There’s no call, I think, for labeling men “pigs,” even facetiously, for finding women sexually attractive, or even for being distracted by women’s sexual attractiveness, or for labeling them — even self-deprecatingly — as “dirty old m[e]n” for continuing to do so when one is older. (Now acting on that attraction in certain situations is surely wrong, and visibly showing one’s distraction is often vulgar and disrespectful, but the underlying attraction is not something to deride.) Also, while I of course don’t know the judge’s relationship to his daughter, or how many of the details of the local lawyer’s life were concealed, but I’m not wild about describing potentially identifiable women’s chests in a public post, even in a joking manner. And on top of that, “[y]ou can’t win” seems to send a needlessly negative message, especially coupled with the apparent blithe acceptance of women’s not winning.

But the substantive point strikes me as quite sound, and also conceptually interesting. Indeed, I think there are several points involved here, some expressly and some implicitly.

1. First, an implicit preliminary point: People judge us by how we look, and especially by how we choose to look. This is especially so in courtrooms, for complicated reasons.

People judge us by our clothes, our hair, our makeup, jewelry, our tattoos, and much more. Indeed, men generally face especially rigid constraints as to dress (better be a suit), makeup (basically none), hairstyle (only a few allowed), and jewelry (only a few kinds of items, such as cufflinks and watches, permitted). No-one warns men about going into court wearing tight pants that deliberately show off their genitals, and one reason is that the general insistence that men wear standard suits makes such specific warnings unnecessary.

Women have somewhat more flexibility as to their appearance, but the flexibility is not unlimited. Maybe this is bad, but it is a reality, and one ignores it at one’s own — and one’s client’s — peril.

2. Then the express point: One particular way in which women are judged is by whether they emphasize their sexuality in their dress. This is famously complicated, even in professional settings, and indeed women may be judged harshly for being seen as too frumpy as well as too sexy. But the reality is that, if a woman dresses in a way that appears too revealing (a line that is of course drawn differently in different eras, places, and contexts), she may find that her audience responds less well to her, for several reasons, including but not limited to:

    • Most simply, revealing clothes can distract from the substance of what the person is trying to say. An outlandish hairstyle or a garish dress (or man’s suit) may have this effect, too, though the revealing clothes add a biological element to the distraction. Naturally, professional judges and responsible jurors will try to avoid this distraction — but they may not succeed perfectly, and some among them may be less professional and responsible.
    • A woman wearing revealing clothes may also be judged — by men but, from what I’ve heard, even more harshly by women — for improperly using her sexual attractiveness to get an edge. That may yield a distinctly negative reaction.
    • If in a particular environment, more revealing clothes are associated with low social status, wearing such clothes can trigger that association, and make the wearer seem low-status. Many social conventions are self-reinforcing in this way.
    • A very attractive woman wearing revealing clothes may also arouse feelings of resentment, chiefly among female viewers, much like a man who is wearing visibly extremely expensive clothes may arouse feelings of resentment among less well-off viewers.
    • Some have also argued that when an environment is sexualized, by talk of sex or by display of sexually suggestive material, this leads men to view women in that environment (regardless of their dress) as sex objects rather than as professional equals. I suspect this is somewhat overstated, but to the extent there is any truth to it, that should also caution women about presenting themselves in a way that comes across (fairly or not) as sexually suggestive.
    • Of course, sometimes revealing dress can be helpful. I just don’t think that it’s likely to be so for a lawyer in court.

Much of this is not very fair, and not very rational. But wise speakers should be aware of their audience’s likely reactions, whether fair or not. And sometimes — especially when a client’s welfare is at stake — they should in some measure tailor their behavior to avoid arousing the unfair prejudices.

3. Now back to an implicit point, which I think is even more interesting. I take it that most people wouldn’t tell an orthodox Jewish lawyer to take off his yarmulke, tell a devout Sikh to take off his turban, or tell a devout orthodox Jewish or Muslim woman to take off her head coverings because of audience prejudices with regard to religion or unusual-seeming headgear. Nor would they tell the Jewish, Sikh, or Muslim lawyers who feel an obligation wear a beard to shave off that beard because of audience prejudices with regard to men with beards — even prejudices that really are focused on beards, and not a cover for religious hostility. (Fashions in male facial hair are notoriously variable in time and place, yet often fairly rigid within their time and place, as a glance at the pictures of American presidents through history suggests; many people who have nothing against Jews or Sikhs as such may still react negatively, depending on the time and place, to professional men wearing beards.)

I think we’d tell these people, be who you are, don’t bow to prejudice, and if your clients think this will handicap them, it’s their lookout to choose a different lawyer. (What happens when the lawyer with the socially condemned religious behavior is a court-appointed defense lawyer is a complicated questions.)

At the same time, I think a warning to avoid wearing mohawks or dying one’s hair blue (whether one is a man or a woman), to avoid getting visible tattoos, to avoid excessive jewelry, or for that matter to avoid garish colors would be perfectly sensible. (There are naturally some good manners constraints with regard to how the warning is presented, if the warning is individualized, but that’s a separate matter that doesn’t arise for posts written to the public at large.) And I think we’d think ill of a lawyer who insists on showing up to court wearing clothes that seem professionally unsuitable. I’m glad that the prejudice against women lawyers wearing pantsuits is largely dying out, though it still remains in some contexts, but most people would take a dim view of a male lawyer who tries to depart from the traditional male suit.

So I think that we’re implicitly drawing a distinction between certain kinds of dress or hairstyle that is seen as especially important to one’s identity — as to which we tell people to defy societal conventions — and other kinds of dress or hairstyle, as to which we expect people to bow to social conventions. Part of it might be respect for felt religious obligations; you shouldn’t change your appearance if you think God forbids it. But part of it might be respect for things that are seen as key parts of your identity.

And one could construct the same argument about women’s clothes. You are a woman, with a woman’s body. You should be proud of your body, and disdainful of social condemnation — or biologically influenced reactions — stemming from your display of your body. You should resist attempts to pressure you into a particular image of proper feminine behavior. And social prejudices will change only if you and many others like you visibly resist them.

I guess I’m just not that persuaded by this argument, and I suspect that many women aren’t, either; I don’t see it as being untrue to one’s womanhood to wear less revealing clothes, the way it might be untrue to one’s orthodox Judaism to shave one’s beard and take off one’s yarmulke. And more to the point, if a young woman lawyer is to take this view, she should do it with a recognition of the costs it can impose on her, on her client, and on the cause (if any) that she is trying to promote with her lawyering.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit. Volokh is the author of the textbooks The First Amendment and Related Statutes (4th ed. 2011), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 70 law review articles. Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm.
SECTION: {section=national, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Comments
SECTION: {section=national, subsection=null}!!!
INITIAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!!

UGC FROM ARTICLE: !!!

FINAL commentConfig: {includereply=true, canvas_permalink_id=washpost.com/8bvh5zpd9k, allow_comments=true, commentmaxlength=2000, includeshare=true, display_comments=true, canvas_permalink_app_instance=bg52e9xhqr, display_more=true, moderationrequired=false, includefeaturenotification=true, defaultsort=reverseChronological, canvas_allcomments_id=washpost.com/km4ey0dajm, comments_period=14, includevoteofftopic=false, allow_videos=false, includesorts=true, markerdisplay=post_commenter:Post Commenter|staff:Post Writer|top_commenter:Post Forum|top_local:Washingtologist|top_sports:SuperFan|fact_checker:Fact Checker|post_recommended:Post Recommended|world_watcher:World Watcher|cultuer_connoisseur:Culture Connoisseur|weather_watcher:Capital Weather Watcher|post_contributor:Post Contributor, childrenitemsperpage=3, includeheader=true, includeverifiedcommenters=true, defaulttab=all, includerecommend=true, includereport=true, maxitemstop=2, source=washpost.com, allow_photos=false, maxitems=7, display_ugc_photos=false, includepause=true, canvas_allcomments_app_instance=6634zxcgfd, includepermalink=false}!!
Next Story
Sasha Volokh | March 28