The American Bar Association (ABA) has explored several initiatives to reduce bias against women lawyers. Two 2018 articles, one in The Atlantic by Lara Bazelon, and a reply by Chris Arguedas that appeared in The Recorder, offer different views of gender in the courtroom. The pieces touch on presentation styles that female attorneys employ before judges and jurors in the courtroom.
Each attorney outlines the parameters of her strategy that she feels has produced the best outcomes for her clients. Bazelon describes the traditional gender norms associated with being a female attorney and goes on to list situations in which those norms are enforced, punished, and rewarded. According to Bazelon, judges and juries “will be more willing to listen to a traditionally feminine woman.” In opposition, Arguedas asserts that women can reject traditional gender norms. Arguedas recommends that every attorney “maximize her power and authority in the ways that are most natural and authentic to her.” In her experience,“even the jurors who don’t like the aggression will get over it.”
Gender expression can be complicated, especially for women in male-dominated professions. The belief that women must conform to female attorney gender presentation norms and standards of femininity is sexist. Both authors have encountered sexist attitudes in their professional careers and both seek to eliminate those sexist attitudes from affecting outcomes for their clients. Where these authors diverge is in the consequences and reinforcement they’ve experienced related to their gendered behaviors. While some female attorneys feel constrained by expectations of femininity, some do not.
Bias in the Profession
The body of academic research on assertive and aggressive women encountering punishment, professionally, is vast. Every year, companies spend millions of dollars to create policies that aim to reduce bias against women at work but that bias against women still exists, regardless of whether a woman has a feminine, masculine, or queer gender presentation.
Gender presentation can be defined as how someone embodies their gender identity. Research has demonstrated that gender identity exists on a spectrum rather than in dichotomy. People who identify as women have different ways and degrees to which they express femininity, if at all. The same goes for men and people with other gender identities. Additionally, the degree to which we judge a certain behavior or characteristic to be feminine will depend on the setting. We associate assertiveness in some contexts with masculinity (corporate). Likewise, we associate assertiveness in other contexts with femininity (parental).
Congruence Rules Treatment
My research, LGBTQ Experiences with the Courts: The Role of Gender Nonconformity and Assertiveness, demonstrated that the perception of a person’s assertiveness isn’t tied to their gender — it’s tied to their gender presentation. We surveyed LGBTQ and non-LGBTQ people who told us about their various court experiences. Participants gave stories about their role in the court and the context of their interactions with others. In addition to these court experiences, they also completed a scale that we designed to measure masculinity and femininity.
We found that the congruity between gender presentation and assertiveness (a traditionally masculine trait) was a better predictor of treatment in court than was the congruity between gender and assertiveness. In other words, if people perceive you as feminine, you might be better off by taking a more traditionally feminine, less assertive approach to self-advocacy. Alternatively, if you have a traditionally masculine gender presentation, you will experience better treatment if you are highly assertive and less passive. These effects occurred independent of a person’s gender identity.
Regardless of whether someone identified as female, genderqueer, or male, the winning combinations were masculine + high assertiveness, and feminine + low assertiveness. So, masculine-presenting people of any gender who reported being highly assertive in a court setting described better court experiences than masculine-presenting people who reported being passive (less assertive) in a court setting. We saw the same effect with femininity. Feminine-presenting people who were passive in court settings reported better treatment than feminine-presenting people who were highly assertive in a court setting. It is less about your gender identity and more about the context that your appearance and personality communicates to others.
The Goose and the Gander
Not all women encounter the same brand of gender discrimination. Consider, for instance, a “light-skinned” African-American woman advising a “dark-skinned” African-American woman how to navigate the corporate environment. Some advice is supremely useful to both women and garners the same results because they are both African American. In contrast, there are instances in a professional setting where an identical tactic is likely to result in punishment for one woman and reward for the other, different-skinned woman. This is the unique and individualized landscape that people with minority identities traverse in professional settings.
Not unlike skin color, gender exists on a spectrum, and what is good for one is not good for all. Arguedas’s style fits many women perfectly. It is liberating and inspiring. Still, our society’s gender norms make it difficult for some women to be appropriately aggressive and also succeed in a male-dominated profession.
Regardless of whether they are trial attorneys or construction workers, women throughout the workforce strive to find a formula to excel in their occupation that aligns with their workplace culture and their specific level of femininity, masculinity, agency, and proficiency. Both Arguedas and Bazelon advocate for empowerment of female attorneys and the reconceptualization of the styles they can adopt to become great trial attorneys. Each woman knows what works for her and, as Arguedas states, “There is room for all kinds in a courtroom.” Ultimately, both authors would prefer that judgments about their case and the evidence are more about the message and less about the messenger.
 (Eagly & Steffen, 1986; Hess, Bridgwater, Bornstein, & Sweeney, 1980)