Jurisprudence

Elizabeth Holmes’ Conviction Is Actually a Win for Women

Elizabeth Holmes, founder and former CEO of Theranos, arrives for motion hearing at the U.S. District Court House in San Jose, California.
Elizabeth Holmes, founder and former CEO of Theranos, arrives for motion hearing at the U.S. District Court House in San Jose, California. Yichuan Cao/Sipa USA via Reuters Connect

The conviction of Elizabeth Holmes, the founder and former CEO of Theranos, on four counts of fraud and conspiracy is a welcome rejection of the dubious gender stereotypes Holmes’ defense team rolled out in an effort to secure her acquittal. By arguing that Holmes, whose company was once worth billions, was merely a victim working under the direction of her male business partner, the defense advanced a perspective that risked undermining the fragile gains women have made in tech and business.

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For years, Holmes has molded her gender presentation to align with her interests, beginning with her self-portrayal as an essentially masculine entrepreneur and ending with her presentation at trial as a feminine victim of male abuse.

As a budding billionaire aiming to boost Theranos’ reputation and eventual valuation, Holmes embraced all things masculine. Her black pants and turtleneck uniform was meant to conjure Silicon Valley’s revolutionary, Steve Jobs, who was too busy upending the tech industry to bother with different outfits. Holmes also had a commanding presence and intensely relentless eye contact. According to some, she adopted an artificially low speaking voice.

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Holmes was especially drawn to the macho world of national security, recruiting prominent statesmen and military leaders like Henry Kissinger and James Mattis to her board. She peddled the lie that Theranos tests were already in active use on the battlefields of Afghanistan. “This CEO Is Out for Blood,” read Fortune’s swaggering cover story about her.

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But once Holmes faced trial for fraud, the leopard changed her spots. No longer fighting for investments from notoriously sexist venture capitalists, and instead angling for sympathy from the regular men and women who comprised the jury, Holmes became the feminine yin to her formerly masculine yang. Her harshly straightened Theranos-era hair was restyled into feminine waves, framing her pale pink lipstick. She often entered court holding her mother’s hand or carrying a large diaper bag.

Commentators described her new look as muted, secretarial, and closer to a “student trying on a grown-up interview look than the mastermind of a multimillion-dollar fraud scheme.” A teardrop charm dangled from her dainty necklace.

Holmes’ competing masculine and feminine images played perfectly into stereotypes about which we ought to be deeply suspect. Namely, only those who seem like men can run skyrocketing startups. Conversely, those who seem like everyday women can’t possibly be guilty of complex corporate crimes.

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Details about Holmes’ actual behavior also map onto stereotypical gender norms. At Theranos, Holmes was in command. Employees testified that she was a hands-on leader, in charge of all meetings with key investors and business partners. Echoing Harry Truman’s “the buck stops here” attitude, Holmes asserted in a TV interview, “I’m the founder and C.E.O… anything that happens in this company is my responsibility.” The ex-CEO of Safeway compared her ability to control the room to that of U.S. presidents he’d met. Holmes’ reputation as a 19-year-old Stanford dropout connected her to ambitious boy geniuses like Mark Zuckerberg and Bill Gates.

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Fast forward to Holmes’ trial, where her lawyers argued that she was too young and inexperienced to be accountable for what happened at Theranos. Holmes testified that she actually dropped out of Stanford and turned to Theranos because she was a victim of rape, ultimately processing her trauma by pouring herself into building her company. She didn’t have the expertise to run a research lab or understand the science behind her own product, the defense argued. Her mistake, according to her lawyers, was relying on and putting her trust in – you guessed it – a man, Sunny Balwani. Portraying herself as an ingenue to his general, Holmes’ defense team sought to show that an abusive Balwani was the one in control. Seen through this lens, Holmes was a victim we ought to pity, not a badass boss who created a $9 billion company. Guess which version the defense was betting that jurors would find more likable?

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Even fully accepting Holmes’ account of sexual and psychological abuse by Balwani, which he denies, we ought to be intensely skeptical that the abuse somehow explains or justifies her comprehensive fraud, perpetrated via well documented lies and maintained over years. For example, Holmes testified that she personally added the logos of pharmaceutical companies to reports which claimed to validate Theranos’ research, when no such validation had occurred. She admitted that she knew, but didn’t disclose, that Theranos often used altered devices made by other companies to run their tests.

Importantly, Holmes testified that Balwani didn’t control the claims she made to business partners, investors, or to the board. One wonders, then, in what way the abuse was relevant to this case other than to feminize her or make her seem damaged and incapable of high-stakes leadership. And given CDC findings that one in four women has experienced intimate partner violence, this imagined link between domestic abuse and corporate fraud would seem to disqualify large numbers of women (and many men) from executive jobs. Not a feminist win.

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The defense team has argued that Balwani’s alleged abuse impeded Holmes’ ability to think clearly during the period in which she committed fraud. Certainly intimate partner violence can lead a victim to lash out against an abuser or to engage in substance abuse or other destructive behavior. But the idea that domestic violence causes victims to defraud investors, and actively work to cover it up, is a bridge too far. And it undermines the credibility of all women, and survivors of sexual assualt, in business.

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Holmes’ actions harmed other women in direct ways, too, according to witnesses. Faulty Theranos tests led one woman to believe her breast cancer had recurred when it had not. Another woman got a positive HIV result, later proven false. One Theranos test indicated that a woman was in the process of miscarrying her pregnancy. After discussing termination with her provider, she learned the test was inaccurate and was able to carry the pregnancy to term. These are women who actually merit our concern. Meanwhile, Holmes continued to deceptively promote Theranos, firing the lab director who warned her of serious problems, including that two years’ worth of tests were no good. Holmes also retaliated against male and female whistleblowers who raised real concerns about the truth.

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Throughout history, feminists have fought against patriarchal legal systems that have assumed women are “noble, pure, passive, and ignorant.” These norms have been used to deny women the right to vote, own property, fight in war, run for office, and occupy the C-suite. The struggle for agency has been a long one, and of course that agency goes hand-in-hand with the type of accountability Holmes now faces.

By painting Holmes as a victim, her lawyers tried to exploit important new concern for victims of abuse brought about by #MeToo. They sought to cloak their case in feminism, but really they suggested that a women like Holmes didn’t have the wherewithal to run a complex scheme; the real culprit must have been a man. Luckily, the jury didn’t buy it.

It’s important that we leave room for women who are in charge and responsible for their own actions. Indeed, accountability for powerful women who falter is consistent with principles of equality and the need to see women as complex, intelligent, imperfect, and fully actualized human beings. As a woman, I’ll take capable and accountable over naïve and incompetent any day.

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