Have you ever wondered why 50% of the population is significantly underrepresented in the judiciary, and what consequences this gender imbalance can have?
For a significant period of time, men dominated the legal profession. Women and other marginalised groups had limited access to the political arena, were excluded from law schools, and were often denied opportunities to advance in public life. This historic disparity has resulted in men holding the majority of positions within the judiciary, leading to a gender imbalance that can result in legal biases. For instance, the Supreme Court of the United States has historically exhibited a significant gender gap, with only five women judges serving on the court between 1993 and 2020. Similarly, the European Court of Human Rights and numerous national legal systems have also experienced a lower representation of women judges.
According to the UN Special Rapporteur on the Independence of Judges and Lawyers, the number of women in the judiciary has increased globally, despite remaining underrepresented. The situation is gradually changing, and underrepresented groups are becoming more visible in legal systems, playing a crucial role as catalysts and agents of change. Indeed, there has been a push for greater diversity, representation, and gender-sensitivity in the legal profession, including efforts to ensure underrepresented groups are amongst those exercising the law. By creating a more diverse judiciary, we can work towards ensuring that the legal system is fair and impartial for everyone, regardless of their gender, sexual orientation, age, race, and other characteristics.
That being said, although representation is crucial, representation in the judiciary is not enough on its own. For example, a conservative woman judge, despite being a woman herself, can hold beliefs and interpret the law in ways that undermine gender equality and women’s rights. This is evident when considering the example of Supreme Court Justice Amy Coney Barrett. Her appointment as a woman on the bench, in 2020, might be seen as a form of feminist victory. However, her conservative ideology and strict interpretation of the Constitution has had dramatic consequences on women’s reproductive health and rights, when she, alongside some of her colleagues, voted to overturn Roe v. Wade, which defined the constitutional right to abortion. This example highlights the importance of not only representation in the judiciary but also the need for judges who interpret and apply the law in a manner that upholds and advances women’s rights, taking a form of activist interpretation reflecting the diversity of society. Having a diverse set of judges is vital because they bring unique perspectives and lived experiences to the table, allowing for a more comprehensive assessment of legal cases.
Representation must also be accompanied by an intersectional perspective, to facilitate the recognition of survivors’ specific needs and uncover potential structural barriers they may face while navigating the justice system. Kimberlé Crenshaw’s work on intersectionality highlights the limitations of traditional anti-discrimination laws, as they often fail to address the unique experiences of individuals facing multiple intersecting forms of oppression. By examining the experiences of BIPOC women, Crenshaw, who coined the term ‘intersectionality’, demonstrates how overlapping systems of racial and gendered discrimination make the discrimination faced by BIPOC women unique and not simply a combination of gender and race discrimination. Tackling this form of prejudice necessitates an intersectional approach to ensure comprehensive legal protections. Along with representation and diversity, adopting an intersectional perspective is crucial to improve access to justice for all. It helps to identify and address systemic issues that may be preventing certain groups from receiving fair and equal treatment under the law.
Increasing gender representation within the judiciary has been shown to be particularly beneficial in cases of sexual and gender-based (SGBV) violence. Empirical research suggests that a more gender-balanced judiciary can lead to an increase in survivor-centred and gender-sensitive responses. Seeking justice for SGBV remains a daunting task for survivors, who face numerous obstacles, including the high cost of legal representation, social stigma, and low awareness of their rights. These barriers are even more significant for survivors from already vulnerable and marginalised groups, such people with diverse sexual and gender identities and expressions, BIPOC, people with disabilities, and women. They may also be confronted with fear of retaliation, which further inhibits their ability to come forward and seek legal recourse. Only by recognising and actively working to overcome these barriers can we foster a truly inclusive, transformative, and equitable judicial system.
While all judges, regardless of their gender, are committed to upholding the rule of law and impartiality, their own life experiences and knowledge may influence their reasoning and emphasis on relevant facts when deciding a case. The law is inherently a science of interpretation, which is why diverse perspectives are so important. Judges interpret the law, applying their own understanding to legal principles, making the presence of diverse judges crucial for a more comprehensive and balanced interpretation of the law. By thriving for a more representative and inclusive judiciary, we can enhance public trust and increase survivors’ willingness to come forward, thereby improving access to justice. Recognising and valuing diverse perspectives can ultimately lead to more equitable, just and survivor-centred outcomes.
There are a few examples of current efforts, campaigns and reports working towards increasing the gender-balance and representation in the judiciary. The United Nations Office on Drugs and Crime initiated the Women In Justice, Women For Justice campaign, advocating for greater representation of women judges, enhanced access to justice for women, and the implementation of gender-sensitive training. This campaign aims to address the gender gap within the justice system. Additionally, in 2018, the International Development Law Organization (IDLO) published a report titled “Women Delivering Justice: Contributions, Barriers, and Pathways.” This report examines the valuable contributions of women in the field of justice, identifies the barriers they face, and proposes pathways for empowering women within the justice sector.