LEGALLY SPEAKING, IT DEPENDS: Women Issues

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. Follow Chris on Twitter @chrisschiller.

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It seems natural to think that our experiences in life are just like everyone else's out there. But there's a simple truth lurking if we just look a little beyond our own egos. At least half of the people in the world are very much different from you. And though we may want to live in a world that is blind to differences between us, the fact is, there are distinct areas where the apparent rules for things are not set the same for all players. Unfortunately inequality happens at a lot of levels affecting a lot of different groupings of humans. For this article, I want to concentrate on one particular group and call out a few of the ways and areas that society as it stands and our industry in particular is unequal in its treatment of them: Women and women's issues.

It doesn't matter which side of the divide you stand on, male or female, victim, perpetrator or bystander. Being aware of the issues being faced daily or being forced upon others daily will hopefully enrage and empower those involved and those observing equally. I hope to make some of you uncomfortable. I hope to make you strive to be better than the “norm” in your own dealings. Though I'll point out when there is a legal issue involved, many times the practices and situations aren't legally amiss. That doesn't mean they're not wrong-headed and should be changed for the better where they can.

When you write a script you usually have great leverage in the makeup of the world you create on the page. So when creating fully fledged characters why not make sure that all your characters are as realistic and three dimensional as possible?

To that end one very simple test within the theme of this article is know properly as the Bechdel-Wallace Testor more commonly the Bechdel Test. It was introduced by comics artist and writer Alison Bechdel in her strip Dykes to Watch Out For in 1985, riffing off of a conversation she had with her friend, Liz Wallace, and the writings of Virginia Woolf. It was meant as a funny way to determine whether a film has women characters worth seeing in it. The test or rule has only three requirements:

1) The film has to have at least two women in it.
2) who talk to each other,
3) about something besides a man.

It was never intended nor should it be used as a rigorous test of anything. But applying the test to a film can have useful results. It can serve as a checkpoint as to whether all the characters in a work are fully fleshed and realistic portrayals of believable people.

Consider that if the women are talking about something other than a man they are likely relating points important to the progress of the plot of the script or developing character, either of which is a good thing. This simple little check list allows you to see that all the characters in your film are working to better tell the story and aren't there merely as two-dimensional, stereotypical decoration. So applying the test to your script isn't a nod to woman issues in cinema so much as a tool to make sure your script is as good as it can be.

Does it mean your film is worthless if it fails the Bechdel-Wallace? Hardly. Many great, classic films don't pass. But writing a script that passes it is a tool to judge whether the work will be appealing to not only audiences but also of actresses looking for good parts to play. Which leads us to…

Another women issue as writers that you should be mindful of is gender disparity in leading roles. There is a tendency, for whatever reason, for most leading roles in films to be written for a man to play. This leaves many excellent leading actresses scrambling to find good vehicles. Some take creative solutions when they have the power and determination to pull it off. For example, Angelina Jolie took the part in Salt that was originally written for a man. There's nothing wrong with writing a strong male lead, but, consider that having an enticing, realistic strong female lead can open doors to casting that makes getting your film made a completely different ballgame.

Some writers have taken this tack in stride in the bulk of their work to the point that the press has noticed. When asked why Joss Whedon keeps writing strong female roles, he is said to have replied, “Because you're still asking that question.” As long as it is noteworthy, we haven't done enough of it.

When it comes to women actually working in the industry, there are many women issues that should be recognized, addressed and eradicated. An insidious one of these is ageism,the treatment of a person differently solely on the basis of their age. Though, as we've discussed here before, it affects everyone to a degree, ageism affects women differently than men. For example, at the age of 37, Maggie Gyllenhaal was told she was too old to play the love interest of the 55-year-old leading man. Women getting old on screen seems to be a crime punishable by banishment. How can they get away with it?

Age is a protected class in law, which puts it in a group with race, color, religion, sex, national origin and others where one cannot be targeted for discrimination for being a member. Employer law has strong admonishments to keep prospective employers from asking anything about age or making any decisions about hiring based on that factor. Violations are subject to winnable civil suits. Still, the discrimination goes on. But more and more strong voices are being raised to call it out. Once enough light is shown on it, let's hope it shrivels away.

Light is also being shown on another female issue, that of the appalling state of the female director and cinematographer “shortage.” As has been reported in the most recent of the annual studies by the Center for the Study of Women in Television and Film, the number of women in these key production positions is appallingly low and has been for years. In 2014 of the top 250 grossing films only 7% were directed by and only 5% were photographed by women. The disparity bells are ringing so loudly that a group of independent producers, led by Christine Vachon, Lynette Howell, and Cassian Elwes, has created the horizon award, an avenue to give women directors a better shot at bridging that gap. Why the gap exists is inexplicable. The jobs themselves have no gender-based biases in their requirements. Pure statistics should result in a more even distribution. But even though sex is also a protected class it is complicated by the allowances granted the “key man” provisions in this creative industry. This is thinking along the lines that a position is a particular, creative one and not just a skills based hire. Basically, because they are hiring an individual with a vision of how things should be done, the choice is singular and not just anyone could do the job. And even if the women would be considered for the job there's no guarantee they'd be offered an equal salary to a male alternative.

The salary gender gap is another big whopper women issue. It made headline news recently when the leaked Sony e-mails revealed the disparity between gender stars in the film American Hustle to which Jennifer Lawrence took flack for rightfully speaking out about. Women have been fighting for equal pay by legal and other means for decades and still have more fight to win. Until there is a legal structure that fully supports equality, public opinion and continuing the call are viable tactics along with vigilance and attention. Shining the light into the dark is the way to justice.

No greater call for shining light exist than in the shady recesses of the repugnant but far too prevalent seedy practices that still go on, usually met with a code of silence. Most are patently illegal, yet are still practiced.

Although far less de rigueur than in its hay day, the casting couch is still in use. Whenever someone in a position of power uses that position to gain advantage over an underling or someone seeking assistance, that is an abuse of power that is punishable under the law. When that power is used for sexual advantage the offense is rape. Even though the analysis is straight forward and the law is very clear, the filing of these cases often never takes place. It may be a feeling to not want to rock the boat, a feeling that if they seek redress their career will be negatively impacted. As an industry this needs to stop. The victim should be not only free to seek solace and restitution but encouraged to do so so that there will be no more victims. The perpetrators should not be allowed to continue unabated while their associates “look the other way.”

A similar code of silence underlies a number of issues that women face more often. Even in categories of known problem, like nudity, there is often disparity between the letter of the rules and the actions taken. The guilds strongly protect their members with strict regulation of procedures used when nudity in a performance will be required. There are strict guidelines for notice, for set etiquette and deference to the vulnerability of the performers in such situations. Still many actors are unaware of their rights or feel un-empowered to demand them. And those in power either take advantage intentionally or in an overzealous desire to “get the shot.” Again, it falls on the industry as a whole to not allow it, to call it out and halt the malpractice. The code of silence must be broken by all.

There are more practical issues to deal with that bring special considerations in this industry. Because of the journeyman-like nature of the jobs, most actresses have a difficult time dealing with their careers when contemplating pregnancy. Though the laws for hourly and permanently salaried workers are strongly in favor of maternity leave and child care, the temporarily employed actor doesn't usually qualify. Adding to that is the lag time between casting and performance, since the body changes that a women goes through are drastic changes, affecting timing of shooting, wardrobe fitting, casting for the part, etc. Some actresses with power playing leading parts on television shows can sometimes manage it by having the production “shoot around” the baby bump or incorporate the pregnancy into the show, with full participation of their production companies. But, those are the exceptions rather than the rule for most actresses.

And once you have the child the practical issues of breast feeding in the workplace can enter the arena. By law in nearly every state, a woman is allowed to breast feed a baby in public. It is sometimes met with ignorance in restaurants or malls, but, the law allows this natural event anywhere. Take that activity to a movie set and, just like in a lot of regular things you can do elsewhere but are problematic on set, the challenges can mount quickly. But, if at all possible, the activity should be accommodated.

There are many more issues that we could visit, but, the length of this article so far precludes me from furthering the points I've been trying to make.

On first glance you may think, “Why's this white guy talking about women?” But think deeper and you may realize that may be part of the point he's making. Give more than a glance to understand the people involved and you might start to see that everyone has something to say. And where they come from may not be immediately apparent or fall into the general conventions of who you think they are and what they represent. I spoke at the beginning of categories of individuals who are treated unequally. Take it as read that we all fall into some category or other where we're not the top of the heap. It might not be visually apparent, but I am a proud member of some said groups. They are literally all around us. For example.

Here's a question I find completely offensive. “Are you right-handed?” There is couched inequality in the assumptions underlying the query. Since approximately 90% of the world is right-handed there is a bias built in. It may even seem that a sensitive soul might ask the question deferring to the rarity of finding someone who is left-handed amongst the “normally” oriented rest of the group. It might feel like an inclusive gesture if you are prepared to hear the answer as “No.” Then you can feel good about catering to the “lefty's” needs, at least in acknowledging their existence. But I'm still offended by the question because it assumes that the world is merely bifurcated and leaves me and those like me completely out of the equation. I'm ambidextrous.

Of course I've picked a completely trivial and hopefully humorous example to make a point. Diversity isn't a catch phrase. It abounds all around us. There are different ways of seeing and talking about the world enhanced by our different experiences. We lessen the experience when we fail to acknowledge those differences or ignore them getting to our point. Being aware that there are variances from our own of how the world is experienced is the initial stage. Explore those differences and the characters we create in our craft will be enriched by the open-minded journey. Try it.

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