More Thoughts on Playing the Woman Card

The Atlantic ran a piece by Lara Bazelon, describing the sexism and bias that many female trial attorneys face.

It's worth reading in its entirety, not just because it highlights the way male attorneys sometimes leverage sexism against their female opponents, but because the experience of being a trial attorney parallels the experience of being a politician in several ways.

For instance, just as trial attorneys craft a narrative from the facts in service of swaying decision-makers toward a favored outcome, so do politicians. Just as trial attorneys can tap into the implicit and explicit identity-based biases of juries and judges in constructing their opposing counsel and clients as flawed and untrustworthy, so too can politicians with respect to their opponents.

And, as much as some people like to frame both trials and political contests as one-on-one boxing matches with the outcome determined solely on the merits of the attorney and politician, it continues to matter to juries, judges, and the public who tells the trial or campaign narrative.

For instance, from Bazelon's piece:

When I asked Faiella for a copy of Doyle's motion, she said that she could send me examples from more than two dozen cases across her 30-year career. She said that at least 90 percent of her courtroom opponents are male, and that they file a 'no-crying motion' as a matter of course. Judges always deny them, but the damage is done: The idea that she will unfairly deploy her feminine wiles to get what she wants has been planted in the judge's mind.

Bam, so right away the female attorney is on notice that the judge is primed to view any display of emotion as hysterical.

And further:

Let's start with the clothes. In my office, and in the U.S. Attorney's Office, where the federal prosecutors worked, the men stuck to a basic uniform: a dark suit, a crisp button-down shirt, an inoffensive tie, and a close shave or neatly trimmed beard. If they adhered to that model, their physicality was unremarkable — essentially invisible.

Women's clothing choices, by contrast, were the subject of intense scrutiny from judges, clerks, marshals, jurors, other lawyers, witnesses, and clients. I had to be attractive, but not in a provocative way. At one trial, I took off my suit jacket at the counsel table as I reviewed my notes before the jury was seated. It was a sweltering day in Los Angeles, and the air-conditioning had yet to kick in. The judge, an older man with a mane of white hair, jabbed a finger in my direction and bellowed, "Are you stripping in my courtroom, Ms. Bazelon?" Heads swiveled, and I looked down at my sleeveless blouse, turning scarlet.

A man in a suit and tie, particularly if he is white, is perceived as "human neutral" in both the courtroom and the political sphere. Almost everyone else is viewed as an aberration. And, as Bazelon continues, this framing is pervasive:

What makes the issue especially vexing are the sources of the bias — judges, senior attorneys, juries, and even the clients themselves. Sexism infects every kind of courtroom encounter, from pretrial motions to closing arguments — a glum ubiquity that makes clear how difficult it will be to eradicate gender bias not just from the practice of law, but from society as a whole.

Opponents of female politicians often complain when women point out sexism they experience. It's "playing the woman card," they cry, as though candidates do not have lived, identity-based experiences. The unspoken rule behind this critique seems to be that if cishet white men don't experience something, nobody else gets to mention it.

Critics of Hillary Clinton, for instance, sometimes claimed that her supporters framed everything as misogyny in the 2016 election. Yet, just as sexism pervades every aspect of a courtroom encounter, I believe it's impossible to disentangle bias from even legitimate critiques of female politicians because the legitimate critiques are invariably layered upon, and weaved within, the illegitimate, misogynistic critiques in ways that make women seem exponentially worse than their cishet white male opponents.

The legitimate critiques of progressive female politicians also often serve as a gateway rationale for "progressive" misogynists to hold female politicians to vastly higher standards than their male opponents and, ultimately, dismiss them from consideration altogether.

You know how it goes: I'd vote for a woman, just not that woman.

It's why I will always believe that Donald Trump was the candidate for many of the men who didn't care if people called him a misogynist, and Bernie Sanders was the candidate for many of the men who did. Sometimes I wonder how much of The One True Revolution is built upon the reality that many misogynists who were anti-Trump simply needed, and found, in Bernie Sanders a candidate who wasn't the woman. But, when white men continue to dominate the narration of U.S. politics, who within the mainstream media will tell you that?

In many ways, male and female politicians and trial attorneys are playing the same games by entirely different sets of unwritten rules, rules that the populace widely fails to acknowledge as real phenomenon and that also twist and turn depending on other axes of identity — race, sexual orientation, ethnicity, body size, and more. I also notice that many critics of female politicians love to cite their purported "unpopularity," "untrustworthiness," and "unlikeability," devoid of the context of these biases. Many people want to believe that a female politician's loss rests solely on her shoulders and is not a reflection of a system that has been rigged for cishet white men since its founding.

Our justice system and our political climate are worse off for it. I don't know what all the answers are to rectifying this situation, particularly when we must adhere to the unwritten rules — rules that prop up the system — in order to win, both in politics and the courtroom.

What we must continue to do is to hold politicians and trial attorneys accountable when they leverage these biases for their own careers and political gain, at least through critique, even if it it's met through cries of "playing the woman card." And, importantly, it's why cishet white men need to listen and believe us when we say that these unwritten rules and biases exist as a fundamental part of our lived experiences, because cishet white men have a vested interest in the status quo.