When the judge is a woman

Redressing the historical and structural male domination of judicial systems requires that we consider the impact of gender on judges, citizens, and the text of law itself. Reflections on the conversations at the ‘le juge est une femme’ conference at the Université libre de Bruxelles.

Heather McRobie
19 November 2013

What does it mean when the judge is a woman?  The question raised at the Université libre de Bruxelles looks at the implications for the judicial system – and what we consider justice – when the gendered structures and assumptions built into it are taken apart.  In reply to the question, legal scholars and gender theory experts explored the impact of gender on judges themselves, as well as for citizens encountering the justice system. 

For all their assertions of impartiality and fairness, the concepts that underpin law – and frame the ways we think about justice–  are laced with gendered notions, from the evolution of the symbol of ‘Lady Justice’ from the goddess Themis to the Enlightenment-era reworking of the relationship between citizen, state and the law through assertions of rights of ‘man’.  And judicial systems worldwide are male-dominated in at least two senses: firstly, judges who identify as male make up the majority of judges in national formal judicial systems, with women historically underrepresented in the judicial profession; secondly, as feminist legal scholars and socio-legal scholars have argued, modern justice systems emerged out of patriarchal conceptions of justice, and as such they privilege the male experience and qualities associated with masculinity.  Gendered ideas of who constitutes the ideal citizen pepper the historical emergence of our modern concepts of justice throughout the Enlightenment, whilst nineteenth-century elevations of the idea of property as a cornerstone of legal status work in tandem with historically patriarchal ideas of property.  Traces of these ideas live on in our current realities through their continued presence in the bloodstream of legal bodies.

Feminist legal theorists have analysed the tension inherent in the fact that the historically patriarchal nature of legal systems entails the privileging of the experiences of some citizens over others –contrary to the aims of a judicial system to treat all citizens as equal before the law.  Francoise Tulkens, looking at the argument of gender diversity as a condition of legitimacy for the international courts, led a discussion at the le juge est une femme conference on how feminist concern for the gendered language of international human rights law – from the Enlightenment framing of the ‘rights of man’ – is not mere hair-splitting or contrarism, by living heritage of inequality that plays itself out afresh each time it is used in international legal systems as they operate today. 

Keeping the Enlightenment language of ‘man’ in international courts contains within it the problematic assertion of who is considered the ‘ideal’ in the court’s imagination – an issue which becomes further warped by the international nature of these courts, which in other senses entails a radical assertion of the law’s universality. 

Tulkens’ analysis goes to the fundamentals of concepts of justice, the law, and the relationship between the individual and a legal system.  But there are more prosaic concerns closer to home, as highlighted by the new empirical research on the ‘gendered experience’ of the judicial system.  If further evidence was needed that judicial systems still privilege male and masculine identities and experiences, academics from socio-legal studies to gender studies have compiled compelling evidence from studies using a number of different methodologies to show how systems with both common law and civil law heritages structurally advantage men.  Judith Resnik of Yale Law School presented findings on the correlation between the relative absence of female judges in higher courts and perceptions of who is considered capable of deciding the most significant and complex cases while Pascale Vielle of the Universite Catholique de Louvain presented a comprehensive overview of the gender ratios of Belgian judges, showing the gap between promises for a gender-diverse judiciary and the slow-moving steps of genuine progress in this area.

In some sense, this is an analytical exercise that can be performed of many professions: highlighting that men are still structurally dominant within the profession, both in terms of holding more high-level positions, in terms of their stronger informal networks, and in terms of how workplace cultures privilege their experiences, from gendered ‘workplace bonding’ initiatives which may alienate women to the lack of recognition of different working-hour patterns which disproportionately impact on those who are caring for young children.   The same could be said of many other professions, of course.  But there is the additional layer, in the case of the justice system, that it is the sphere that deals directly with justice, and equality – surely if any part of public life should be gender-equal, it is the justice system?

There are inherent rhetorical and substantive tensions in making the case for diverse judiciaries (which, in many contexts, would entail promoting more female judges, given their underrepresentation in the higher courts).  In a comparative study on the experiences of judges in several countries including South Africa, Australia and the United Kingdom, Laura Hilly addressed the issue of ‘experienced justice’, the gendered experiences of judges, building a picture from analysis of extensive interviews with judges how they perceived the impact their gender had on their experience of judging.  The analysis highlights the tension in advocating for gender-equal justice systems – the judges repeatedly expressed their concern with ‘identity-determinism’, or the idea that ‘being a woman’ dictated how they would judge, given how this idea stood at odds with their legal training that judges hold a position of impartiality.

The unique case of the justice system for gender equality

This discomfort expressed by the judges Hilly interviewed highlights the significance of gender equality in the judiciary as well as the importance of framing the issue of gender equality in ways that speak to the unique nature of the justice system.  The best case scenario, as scholar Sally Kenney’s work highlights, is that a gender-diverse judiciary corrects the biased false neutrality latent in justice systems that were built under, and reflect, patriarchal values.  The recurring question in new scholarly analysis on gender and the justice system – ‘well, what difference does it make whether the judge is a woman or a man?’ – itself challenges the idea that judicial systems are ‘neutral’ and impartial.

For whilst it may be uncomfortable to acknowledge that earlier bodies of law would not be considered ‘just’ by the standards of feminist legal theory it is clear that contemporary justice systems did develop in tandem, and intertwined with, patriarchal norms.  In other words, the concern is not that there should be more female judges so they can judge from their standpoint of ‘femaleness’, but that a gender-equal judiciary would neutralise the problems – for justice, for fairness and for a society – that follow when one gender-group dominates the system and determines what is considered to be ‘just’.  Legal scholars looking at common law legal traditions highlight the historical importance of the idea of trial by jury and the role of non-professional judges as precedence for the idea that the justice system must reflect society, in its plurality, if it is to be just.  And achieving this plurality would, in practice, mean taking measures to reverse the historical male dominance of the higher echelons of the judiciary.  

With feminist legal theory having built the case for the imperative of a gender-diverse and gender-sensitive judiciary in order for the system as a whole to be just, new empirical research addresses the task ahead of how to undo the patriarchal privileges of justice systems.  Marie-Claire Belleau and Rebecca Johnson of the University of Laval and University of Victoria in Canada presented an analysis of how the Canadian judiciary eventually developed more gender-equal representation, through removing the de facto barriers in terms of working practices and the pools from which judges were traditionally chosen in order to mitigate against the obstacles preventing women from rising as judges. 

Similarly, Ulrike Schultz looked at ‘equal opportunities’ and women’s advancement in Germany’s judiciary as a kind of employment-sector analysis treating the judiciary like any other bureaucracy or company.  And when a judicial system is looked at in this way, the conclusion is that more concrete measures must be taken to mitigate against the historical disadvantages and de facto barriers to equal opportunities that prevent women from rising fairly through the system.  But the wider body of work developing on gender and the judiciary makes a more ambitious assertion: justice systems must be gender-equal, firstly on the basis that gender-equality and diversity is inherently good in a public organisation, and secondly – crucially – because the justice system, particularly, must reflect and be responsive to all those it serves.  

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