Call for Mobilization!!!!

In response to Nienke Grossman’s post announcing a conference titled «The Judge is a Woman» at the Université libre de Bruxelles, I hopped on a plane and headed to Brussels. The event was both thought-provoking and inspiring, as presentations addressing France and Belgium revealed that although women composed the majority of law students and joined the judiciary in increasing numbers, they tended to stay at lower level courts, including juvenile courts and justices of the peace, failing to move up the hierarchy to commercial courts and higher level appeals courts. It was noted that recruitment to higher courts was conducted in a manner lacking transparency and favoring “old boy” connections and networks which women did not access. In addition, there appeared to a be a certain degree of passivity resulting from the attitude that once women reached the judiciary there was no longer a problem. There was a lack of awareness that there might be an interest in promoting women to the top of the judicial hierarchy.
Turning to the United Kingdom, Kate Malleson explained that while women comprised of a majority of solicitors and over 40% of barristers, there was only one woman on the Supreme Court. In spite of having a Diversity Task Force issue 33 recommendations, progress regarding the participation of women among the higher courts of appeal remained slowed by the dominance of a system in which senior judges are appointed from a small group of elite barristers (tending to be white, male, and upper class), thereby preserving homogeneity. She noted that it would probably take decades to achieve change and that this was in essence a question of political will to consider quotas. Hence she calls for political engagement. It is notable that in 2003, the majority of law students in the UK indicated that they had never had a female professor.
In contrast, Arvind Agrawal described the social context in India which resulted in female infanticide, exclusion of girls from education, child marriage, domestic violence, and other forms of severe discrimination which inhibited women from achieving personal and professional aspirations. Nevertheless, he noted that in cases where women managed to make it past the social barriers, there actually was no glass ceiling, as evidenced by women achieving the status of prime minister and serving as judges. In part, this may be a result of the fact that India has quotas to enable the participation of women in political bodies and institutions.
As pertaining the United States, Judith Resnik explained that women remained underrepresented among tenured law professors (composing only 15%), law partners (15%), and judges (29% at state court, Supreme Court 33%, and Federal Court 24%). She explained dilemmas relating to the diverse opinions held by women judges, as some issued decisions contrary to feminist positions (e.g. curtailing the right to abortion). Indeed, Marie-Claire Belleau and Rebecca Johnson responded that their analysis of the decisions by women on the Supreme Court of Canada indicated that it is impossible to predict which way a woman judge will rule on issues (such as criminal law or social justice) based on their gender alone. They noted that the women judges ran the gamut of perspectives, but they were more likely to join in dissenting opinions. They concluded that the value of including women is that it would promote diversity of opinions. Echoing Malleson, Resnik called for collective action.
Addressing International Courts, Nienke Grossman described the “pink ghetto” in which women judges are most present at the International Criminal Court (59%), followed by the European Court of Human Rights (37%). They were more marginalized at the Law of the Sea Tribunal (5%), the WTO (17%), as well arbitration panels. Grossman confirmed that recruitment follows the same “tap on the shoulder” closed processes that exclude women. She described the absence of women among ICJ counsel as nothing less than “shocking”. Most distressingly, she indicated that there appeared to be a culture of complacency and total lack of awareness about the lack of diversity.
Perhaps, most inspiring was Francoise Tulkens, former Vice-President of the European Court of Human Rights, who noted that women compose 50% of the population, hence there is no reason why courts should not reflect the population. The allegiance to principles of equality and non-discrimination are expressions of democracy. She described the history of “token women” who did not threaten the code, the traditional view that the natural occupant of a court is a man, and the need for diversity. She articulated the view that in relation to human rights, courts are expected to be able to appreciate the experience of people in order to address questions of justice. She indicated that it is a myth that a judge can be neutral due to his or her individual background which invariably will influence how one approaches a case. She explained that human rights cases require contextual consideration, and that “neutral” or “objective” language actually may hide biased, inimical views that cannot be articulated explicitly. Tulkens describes human rights law as actually being sentimental and thus requiring pathos for interpretation. Women can be adept at addressing the situation of vulnerable groups given the different experiences they have had in their lives. Rather than speaking in a different voice, Tulkens explains that women come from a different place than men in society and this affects their views-utilizing their different experiences to provide alternative reasoning in opinions. Providing insight as to the actual experience of women on courts, she noted that she underwent treatment that she had never been subjected to in law school, such as being misunderstood by her colleagues when in consultations, being ignored, or having her colleagues respond to her arguments only when raised by a male colleague. She also related the amusing anecdote of the dilemma raised by the pregnancy of a judge on the European Court of Human Rights. As the Court had never envisaged this scenario, there were no regulations to follow. It was suggested that they regard the judge as being on sick-leave. As this received a negative response, appropriate guidelines were later drawn up.

The conference left me with the sensation that there is a very real need for academics, practitioners, and students to engage in order to pursue improved diversity within academia, the profession, and the courts. There should be increased discourse and exchanges between the national and international regimes, and improving the statistics should be made top priority by the professional and academic associations. In short, this is a call for mobilization to address your own faculty, workplace, and jurisdiction. Please let Intl Law Grrls know about your progress!

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