It’s been a hell of a week for knowing what to wear.

Judge Richard Kopf blogged about “being a dirty old man and how young women lawyers dress,” weighing in on the latest debate about proper attire for women in law.

The story of Sunnie Kahle also emerged. (Gavel bang: Ann Althouse.) Sunnie is an eight-year-old Virginia girl whose grandparents reported to news media that Sunnie had been booted from her school for not being sufficiently girly. The story of a tomboy expelled for bucking hyper-conservative Christian notions of femininity set the internet ablaze with headlines like “Little Girl Taken Out of Christian School After Told She’s Too Much Like a Boy.”

In both of these stories, others are telling females how to look acceptably feminine. Judge Kopf instructs female lawyers not to appear overtly sexual. School officials instruct Sunnie not to appear overtly boyish. In each case, the powers that be seem to dictate the narrow swath between too-feminine and not-feminine-enough. Women and girls must be recognizably female while not spotlighting the sex traits that make them female.

That’s one gloss.

Here’s another. Let’s talk about sex and uniforms . . . .

First, there’s more to Sunnie’s story.

Mat Staver, Dean of Liberty University School of Law and head of Liberty Counsel, released a statement for Timberlake Christian School. It reads in part, “With all due respect, the facts are not as S.K.’s great-grandparents have portrayed them. This matter is far beyond a simple ‘hairstyle and tomboy issue’ as inaccurately portrayed. It is not about that at all.” The statement later refers to “concerns regarding use of the restroom and other matters arising from the sensitive issues here.” The letter from Timberlake’s principal to Sunnie’s grandmother asks Sunnie’s grandparents not to re-enroll her unless the family is “open to following” the school’s standards. The principal writes, “I also understand that Sunnie is being counseled professionally regarding her identity and image in order to steer her in a particular direction to handle these issues.” Local news reported that “[s]everal parents at Timberlake Christian School, who claim to have knowledge of the situation, say Kahle was talking about having a sex change and wanted to use the boy’s restroom.”

Even if you aren’t bound by theological commitments, handling a kid who isn’t sure about whether her anatomy fits her feelings or what to do about that is tough, ambiguous stuff.

Something else unites the story of Sunnie and the issue of women attorneys’ dress. Uniforms. Not in the sense of a single prescribed article of clothing. Rather, uniforms in the broader sense of a standard appearance for all members of group who want to participate in that group’s activities.

Timberlake is a private religious school. They dictate how their students appear. If someone disagrees with their standards, they can, as Sunnie’s grandparents have, send their children to public school instead.

Though I agree with Staci that there are more options for women than for men, there is a uniform of professional attire, even for women. (Hint: it doesn’t involve anything that makes you look like you are going to a Halloween party dressed as “Sexy Lady Lawyer.”)

Judge Kopf’s critics have their panties in a bunch — unless, you know, they aren’t wearing any — because “how a woman dresses should be irrelevant to the case.” Yet that is part of what uniforms are meant to address. Uniforms cover up distracting superficial individual differences, so that character, intellect, and skill get the attention. “Boring” is a feature, not a bug.

Women in law ought to acknowledge that the uniform of courtroom-ready attire is meant to help them, if they let it. Should a woman refuse that help, she assumes the consequences. Those consequences may include scorn from women, ogling from men, and not being taken seriously as a professional from both.

Is this expectation misogynist? The kerfuffle with Kopf is not about all women. It is about women who accentuate their sexuality in the courtroom, whether intentionally or negligently. It is also about biological reality.

Judge Kopf writes, “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).” I think this is true of most men, even if they are not as candid as Kopf. He describes an instinctive, biologically driven response: he notices female sex traits and he likes them. Kopf doesn’t say that he then unreflectively acts on his immediate response — flirting or catcalling, dismissing her as a intellectual or moral being. His reptilian brain notices something eons of evolution have programmed it to pay attention to. This is biology. Then the rest of him catches up, and he moves on. This is civility.

If I, as a woman, instinctively feel the urge to coo at newborn babies, it’s biological impulse. It’s when I start snatching kids that we worry. Until my impulses irrationally drive my conduct, I am just telling you what flashes through my mind in response to a stimulus.

Instinctively, women will often resent other women who trigger a sexual response in men because women perceive that she is using sex as a tool for her advantage. They might resent that men are subject to this bias — that sex can be an effective tool. But they also resent simply that a competitor is presently benefiting from the use of that tool. This is true regardless of whether they believe the tool is fair or whether they themselves might sometimes use it. Call it the biology of cattiness.

Do I sound uptight? Intolerant of individual expression? I am neither. Rather, I am pragmatic.

Well into my twenties, I rocked some outlandish looks on a daily basis. Piercings, mohawks, (unforgivably malodorous) dreadlocks, a fully shaved head. Even now, when left to my own devices, my look could often be described charitably as “quirky,” with readily visible tattoos.

I long ago conceded that parts of my preferred appearance are usually deemed “unprofessional,” regardless of my merit. I don’t like it, but I accept that I need to wear a particular uniform in order to participate in particular environments. I don’t start a riot about “tattoo shaming.” I suck it up and put on a freaking cardigan when I need to.

If Sunnie wants to attend Timberlake Christian School, she must present herself in a way that institution deems appropriate. If lawyers want to appear in court, they must dress in ways that institution deems appropriate.

Be complicated on your own time. Be seductive. Be androgynous. Show off your tats. Whatever. Explore the complexity of your identity. But when you enter a setting that asks for a uniform, be prepared to either conform or suffer consequences, even when that uniform relates to your sex.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com


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