Why do women in the judiciary matter? The struggle for gender diversity in European courts

The exclusion of women from the legal world was one of the last gender inequalities to be outlawed in most Western democracies. Yet, it persisted in many countries despite the explicit constitutional prohibition of sex discrimination and the achievement of female suffrage. In the UK, the 1919 Sex Disqualification (Removal) Act followed the 1918 recognition of women’s right to vote and paved the way for the admission of women to the legal profession: although women joined the Law Society in 1922, the first female judge was not appointed until 1962, one year before the enactment in Italy of Law no. 66 of 1963 laying down rules for the admission of women to public offices and professions, including the judiciary. A few years earlier, in decision no. 56 of 1958, the Italian Constitutional Court upheld Law no. 1441 of 1956 limiting the number of women magistrates in juries, implicitly arguing that the performance of judiciary duties is better suited to the male than the female intellect. Even in the US, where the first female federal judge was appointed in 1928, the exclusion of women from juries was one of the last sex-based classifications to be declared unconstitutional. In 1994, with its decision J.E.B. v. Alabama ex re, the Supreme Court held that peremptory challenges based on sex violate the equal protection rights of prospective jurors. The participation of women as equals on juries has remained problematic in many other common law judicial systems where sex exemptions were not outlawed until the end of the last century.  These are just a few emblematic examples of the traditional exclusion of women from judgeship and they appear sufficient to explain why it has been argued that “the exercise of judicial power is enmeshed in powerful cultural norms of masculinity”. A parallel can easily be drawn between female political representation and women judgeship. Many decades after the achievement of both women’s suffrage and the right to enter a judicial career, only two countries in the world have 50 percent or more female representatives in their single or lower houses, and women are still a minority in top-ranking judicial positions like supreme, constitutional and European courts. Electoral gender quotas (and, in a few Asian and African countries, reserved parliamentary seats) have been a partial response to the continuing under-representation of women in politics for many years. More recently, given the fact that “the torrent of women's entry into the legal profession has not produced a pipeline to power for women in the judicial branch of government”, some efforts have been made to include more women in the judiciary as well, with special attention to constitutional and apex courts. Some countries have adopted specific positive action policies in favour of women in the judiciary, while in most cases, the appointment of female judges can be considered a sort of ‘implicit quota’. In the US, following President Jimmy Carter’s commitment to the principle of a gender diverse bench, the appointment of a certain percentage of female judges to federal courts has never been called into question. With regard to the Supreme Court, women make up one-third of the members since the confirmation of Associate Justice Elena Kagan in 2010; similarly, appointments to the Supreme Court of Canada obey a customary rule requiring the presence of three women among the nine justices. More recently, gender balance in the judiciary has become an explicit aim pursued by judicial appointment commissions and other bodies involved in national and supranational judicial selection processes. The latest are emblematic of the struggle for an increased female presence in the judiciary: at the European level, judicial appointments to the European Court of Human Rights (ECtHR) and to the Court of Justice of the European Union (CJEU) have just begun to take gender into account with a view of redressing the persistent under-presence of women on both benches. Analysis of the set of rules governing the complex procedures for the composition of the two European courts represents a starting point for addressing the main question underpinning this chapter: what is the purpose of a judicial body reflecting the gender composition of society? In other words: is gender balance in the courts a matter of equal opportunity between women and men in access to the legal profession or should it be achieved in order to increase the representativeness of the judiciary and the quality of judicial decisions? Clearly, such a question implies other more general, subtle and delicate issues that have divided generations of feminists. To mention just a few: Do women represent women? Do women judge differently? While the first of these two questions has been widely addressed by the literature on women and politics since the Seventies, the second is strictly related to the more recent battle for greater judicial gender diversity… (continues)