Several generations of female lawyers have paved the way. Now we find ourselves reflected in the faces of more than 50 percent of all law students. Women work in every level of the courts and are slowly moving into the highest echelons of legal practice. We have come a long way, yet the road before us stretches longer than the road behind.
We have been in courtrooms for decades. Slowly but surely we proved, as our male counterparts never had to do, that we can be trusted to act and dress appropriately as befits our role as lawyers. Faith in the ability of women to dress appropriately comes to an end, however, when women visit their clients in jails and prisons. Stepping through the doors of jails and prisons subjects us to dress codes reminiscent of grade school. Back then, a walk down the hall between classes might result in an unwanted trip to the office of the eagle-eyed principal with his trusty ruler, where we were forced to kneel on the floor for the ceremonial measuring of the hemline for its proximity to the knees. And across the street in the Catholic school, girls were routinely chided about the dangerous reflective qualities of patent leather shoes. School administrators drilled two messages into the core of our being: (1) we could not be trusted to comport ourselves appropriately, and (2) we were responsible for the unrestrainable primal urges of the males around us. We had to be protected from the world, and the world from us.
Throughout the year, in every court across the country, newly admitted lawyers stand and swear an oath that likely includes the words “I will support the Constitution of the United States.” For criminal defense lawyers, those words have an especially personal meaning as translated through this Sixth Amendment promise: “In all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.” Those gender-neutral words define not only who we are, but what we do. But the gender neutral part stops at the jailhouse door.
At the jails, we exchange Bar cards for measured hemlines and patent leather. Unlike our male colleagues, the price of our admission is once again the principal’s ruler. The rules of the CCA and BOP facilities in Arizona impose a principal who is aided by uniformed hall monitors with virtually unrestrained power and bureaucracy. Prison personnel are more concerned with form than substance. They measure with their eyes the length of our skirts, skorts, and pants to make sure they are knee length or below (and without slits). They measure the height of heels that cannot exceed two inches. And they examine the style of our shoes to verify they are attached to our feet. Female attorneys are scrutinized to ensure that (1) attire is appropriately “loose fitting and not unduly suggestive, not similar in color/design of inmate attire,” (2) necklines are neither low nor V-neck in design, (3) shirts are not sheer and sweaters are not loosely woven, and above all, (4) bra straps must not become exposed.
Unlike our male colleagues — who freely sit with plumber’s views as their Joe Boxer labels protrude freely above the slumping waistlines of their sagging pants — we must pass rigorous underwear checks. “Proper foundational undergarments” must be worn at all times, but not to include garter belts and underwire bras (the latter are strictly forbidden). Last but not least, there is the color code. “Visitors are not permitted to wear gray-colored sweat wear, or any clothing khaki, orange, or green. Plain t-shirts in gray, khaki, green, orange, white, red, or yellow are not permitted. No medical scrubs or clothing resembling staff uniforms.” Neutral on its face, but not in application. Standard male lawyer attire (khaki pants, blue button down, navy jacket) is fine. For women, the pants with navy jacket and white blouse that was perfectly fine in the courtroom may not work at the jail an hour later. The woman wearing an underwire bra will have to cut apart her bra or perhaps remove it altogether and carry it in her briefcase. And the woman in her ninth month of pregnancy whose dress is “too tight” will have to plead her case up the chain of command before entry is begrudgingly allowed.
While some people may offer a variety of “common sense explanations,” no doubt they are not the same people being turned away at the door or being forced to disrobe as the price of admission. Even at Gitmo, the last great holdout from the Constitution, female lawyers are afforded the professional courtesies extended to their male colleagues. Professional courtesy is expected and it is given.
Decades have passed since I last knelt on the floor in the principal’s office, and so much has changed. No longer schoolgirls, now we are lawyers rumbling and scrapping through courtrooms and into the jails, moving through the lives and crimes of clients and carrying their baggage into our own lives. Yes, now we run with the big dogs, giving as good as we get and always fighting for more. But even now, several generations after the first woman stood at a podium in a courtroom, still we must fight to be treated as adult professionals. We are judged by ancient standards in a legal system that still insists we act like “ladies” first and “professionals” second.
Female defense attorneys fight for boundaries with clients who see in us their mothers, sisters, and girlfriends. We argue with jailers who care only about our hemlines and necklines, always vigilantly watching for errant bra straps and clothes that hint of our womanhood. Even now, 50 years after Gideon, we have earned the right to stand and fight for clients, but still we start each day checking hemlines and heel height. There are questions we ask ourselves as we dash through our frantic morning rituals. What can I wear to the jail today? What colors are off-limits today? Is this the suit I can wear in court but not at the jail, or is it the other way around? These weighty questions chase through our sleepless nights while we are otherwise worrying about returning our clients to their families or even keeping our clients alive.
For nearly 30 years I have stood beside my male colleagues and fought for my clients. I have watched with joy and admiration the swelling ranks of female lawyers and judges in federal court. I love my work. As for the jails, that is a different matter. Some of our male colleagues ask, “What’s the big deal about underwire bras? Just wear a sports bra!” To them I extend a blanket invitation — you wear one! I just want to do my job.
When I visited my client at FCI, they made me remove my bra because the underwire posed a threat to national security. After removing the bra, I walked through the scanner and the machine did not beep. Then they said I wasn’t allowed to enter the facility without proper underclothing. “How do you enforce this policy?” I asked. They gave me snarky looks, and they would not allow me to see my client. I asked if they would lend me a pair of scissors to cut out the underwire. “Ma’am, most attorneys know we don’t provide weapons here at the front desk,” they replied. Someone in line took pity on me and lent me a pair of nail clippers to use to cut up my underclothing. I removed the wire, and finally, I was able to see my client.
This is the regular humiliation that women attorneys face when all we want to do is meet with our clients. I have been told that I can’t come into facilities while wearing an underwire bra. Am I going to whip it off in the middle of a meeting? And then do what with it, I don’t know. One day, I went into the ladies room to take my bra off so I could walk through the detector without it. The faucet automatically came on, soaking my shirt. Worst. Day. Ever.
We’re treated as if we all are making these visits with some ulterior social or romantic agenda. Have they taken a good whiff of those visiting rooms? Have they seen our filthy clients, who are dirty because they are only allowed showers 1-2 times a week? Give me a break. We are professionals. Like our male colleagues, we are there to do a job — a job required by the Constitution. We should be afforded the same respect as male attorneys.
Male attorneys don’t deal with this issue. Two years ago at CADC, I was in the middle of a client meeting in that big open room when one of the guards said I either needed to cover my lower back or leave. I was wearing jeans and a t-shirt. When I bent forward, the shirt rode up a little bit. No underwear showing, nothing like that. I looked up and saw one of my male CJA colleagues talking with his client. Not only was his lower back showing, but I could clearly read “Joe Boxer” peeking out from his jeans. No one said anything to him.
They turned me away from FCC last week because my skirt was too short. I’d just finished visits at CADC. I was wearing a dress I regularly wear to court.
And when is the last time an attorney actually showed up at attorney visits wearing gang colors or insignia? Ridiculous.
I wore an underwire bra to FCI a couple of years ago. They made me take it off to go through the metal detector. After clearing the metal detector, I went to the bathroom and put it back on. Then they said I couldn’t wear it in, but I could carry it in my briefcase. Because I really wanted to visit my client, I carried the bra in my briefcase and went braless to talk to my client. How did my bra pose less of a threat to security when I put it in my briefcase?
Last evening, for the first time in 20 years of visiting FCI, I was told I could not enter with my underwire bra and I could not enter without it. I could not take it off and have the guard inspect it. I could not enter even if a female guard, who was present, patted me down. I stood my ground for about a half hour until Lt. Peas came down and said he would let me in “this time.” We need to have a group conference with the warden.
Did you know that we are supposed to wear “appropriate underwear,” i.e., underpants? Are they going to start searching us to see if we are?