Abstract
The case for gender equality on the bench wouldseem too uncontroversial to requirejustification. Yet the practical realities ofthe slow progress of women towards equality ofparticipation both quantitative and qualitativein the judiciary testifies to the continuingneed to argue the case for change. To date, theprimary rationale for promoting gender equalityhas been that women will bring a uniquecontribution to the bench as a result of theirdifferent life experiences, values andattitudes. Such arguments derived fromdifference theory have had a strong appealsince they appear to give legitimacy to theundervalued attributes traditionally associatedas feminine while also promoting the meritprinciple by claiming to improve the quality ofjustice. However, this article argues thatdifference theory arguments are theoreticallyweak, empirically questionable andstrategically dangerous. Instead, it argues forthe adoption of a rationale for gender equalitybased on equity and legitimacy; that equalparticipation of men and women in the justicesystem is an inherent and essential feature ofa democracy without which the judiciary willlose public confidence. This approach, thoughless immediately appealing, is ultimately moresound.
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REFERENCES
Abella, R., “The Dynamic Nature of Equality”, in Equality and Judicial Neutrality, ed. S. Martin and K. Mahoney (Toronto: Carswell, 1987).
Abrahamson, S., “The Woman has Robes: Four Questions”, Golden Gate Law Review 14 (1984), 489.
Aliotta, J., “Justice O'Connor and the Equal Protection Clause: A Feminine Voice?”, Judicature 78 (1995), 232.
Allen, D., “Voting Blocs and the Freshman Justice on State Supreme Courts”, West. Pol. Quarterly 44 (1991), 727.
Allen, D. and Wall, D., “The Behaviour ofWomen State Supreme Court Justices: Are they Tokens or Outsiders?”, Justice Systems Journal 12 (1987), 232.
Barwick, H., Burns, J. and Gray, A., Gender Equality in the New Zealand Judicial System: Judges' Perceptions of Gender Issues (Wellington: Joint Working Group on Gender Equity, 1996).
Cooney, S., “Gender and Judicial Selection: Should there be MoreWomen on the Courts?”, Melbourne University Law Review 19 (1993), 20.
Crowe, N., The Effects of Judges' Sex and Race on Judicial Decision Making on the U.S. Courts of Appeals, 198–1999. PhD dissertation, The University of Chicago, Department of Political Science, 1999.
Davis, S., Hair, S. and Songer, D., “Voting Behaviour and Gender on the U.S. Courts of Appeals”, Judicature 77 (1993), 129.
Davis, S., “The Voice of Sandra Day O'Connor”, Judicature 77 (1993), 134.
Fraser, N., Justice Interruptus: Critical Reflections on the 'Postsocialist' Condition (New York: Taylor &; Francis, 1997).
Frug, M.J., “Progressive Feminist Legal Scholarship: CanWe Claim 'A Different Voice'?”, Harvard Women's Law Journal 15 (1992), 37.
Gatfield, G., Without Prejudice: Women in the Law (Wellington: Brookers, 1996).
Genn, H., Paths to Justice (Oxford: Hart, 1999).
Gilligan, C., In a Different Voice: Psychological Theory and Women's Development (Cambridge, MA: Harvard University Press, 1982).
Goldman, S., “Should There be Affirmative Action for the Judiciary?”, Judicature 62 (1979), 489.
Grant, I. and Smith, L., “Gender Representation in the Canadian Judiciary”, in Appointing Judges: Philosophy, Politics and Practice (Ontario: Ontario Law Reform Commission, 1991).
Gottschall, J., “Carter's Judicial Appointments: The Influence of Affirmative Action and Merit Selection on Voting on the US Courts of Appeals”, Judicature 67 (1983), 165.
Gryski, G., Main, E. and Dixon, W., “Models of State High Court Decision Making in Sex Discrimination Cases”, J. Pol. 48 (1986), 143.
Gruhl, J., Spohn, C. and Welch, S., “Women as Policymakers: The Case of Trial Judges”, American Journal of Political Science 25 (1981), 308.
Hale, B., “Equality and the Judiciary: Why Should We Want More Women Judges?”, Public Law (2001), 489.
Kritzer, H. and Uhlman, T., “Sisterhood in the Courtroom: Sex of Judge and Defendant in Criminal Case Disposition”, Social Science Journal 14 (1977), 77.
Lahey, K., “Until Women Themselves Have Told All They Have To Tell”, Osgoode Hall Law Journal 23 (1985), 519.
Laster, K. and Douglas, R., “Feminized Justice: The Impact of Women Decision Makers in the Lower Courts in Australia”, Justice Quarterly 12 (1995), 177.
Marshall, T., “Public Opinion and U.S. Supreme Coutt Decision-Making in Women's Rights Cases”, Paper presented at the annual meeting of the Midwest Political Science Association. Chicago, IL (1995).
Martin, E., “The Representative Role of Women Judges”, Judicature 77 (1993), 66.
McCormick, P. and Job, T., “Do Women Judges Make a Difference? An Analysis by Appeal Court Data”, Canadian Journal of Law and Society 8 (1993), 135.
McGlynn, C., The Woman Lawyer: Making the Difference (London: Butterworths, 1998).
McRae, S., Women at the Top (London: The Hansard Society, 1996).
Menkel-Meadow, C., “The Comparative Sociology of Women Lawyers: The 'Feminisation' of the Legal Profession”, Osgoode Hall Law Journal 24 (1986), 897.
Naylor, B., Gender and Sentencing in the Victorian Magistrates' Court: A Pilot Project (Canberra: Criminological Research Council, 1992).
O'Connor, D., “Portia's Progress”, New York University Law Review 66 (1991), 1546.
Phillips, A., The Politics of Presence (Oxford: Clarendon, 1995).
Pitkin, H., The Concept of Representation (Berkley: California, 1967).
Raday, F., “Women in Law in Israel”, Georgia State University Law Review 12 (1996), 525.
Resnik, J., “On the Bias: Feminist Reconsideration of the Aspirations for our Judges', South California Law Review 61 (1988), 1877.
Roach Anleu, S., “Women in Law: Theory, Research and Practice”, Australia and New Zealand J. Stats. 28 (1992), 391.
Russell, O., “Judicial Free Speech: Justifiable Limits”, N.B.U. Law Review 45 (1996), 156.
Segal, J., “The Decision Making of Clinton's Nontraditional Judicial Appointees”, Judicature 80 (1997), 279.
Sherry, S., “The Gender of Judges”, Law and Inequality 4 (1986), 159.
Shientag, B., “The Virtue of Impartiality”, in Handbook for Judges, ed. G. Winters (American Judicature Society, 1975).
Slotnick, E., “Gender, Affirmative Action and Recruitment to the Federal Bench”, Golden Gate Law Review 14 (1984), 519.
Sommerlad, H. and Sanderson, P., Gender, Choice and Commitment: Women Solicitors in England and Wales and the Struggle for Equal Status (Aldershot: Ashgate, 1998).
Songer, D. and Crews-Meyer, K., “Does Judge Gender Matter? Decision Making in State Supreme Court”, Social Science Quarterly 81/3 (2000), 750.
Steffensmeier, D. and Hebert, C., “Women and Men Policymakers: Does the Judge's Gender Affect the Sentencing of Criminal Defendants?”, Social Forces 77 (1999), 1163.
Thornton, M., Dissonance and Distrust: Women in the Legal Profession (Melbourne: Oxford University Press, 1996).
Ward, D., Still Hearing Voices: The Persistent Myth of Gendered Judgment. VIIth Biennial Conference of the International Society for Justice Research, College of Management, Rishon Lezion, Israel, 2000.
Wikler, N.J., “Identifying and Correcting Judicial Gender Bias”, in Equality and Judicial Neutrality, eds. S. Martin and K. Mahoney (Toronto: Carswell, 1987).
Wilson, B., “WillWomen Judges Really Make a Difference?”, Osgoode Hall Law Journal 28 (1990), 507.
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Malleson, K. Justifying Gender Equality on the Bench: WhyDifference Won't Do. Feminist Legal Studies 11, 1–24 (2003). https://doi.org/10.1023/A:1023231006909
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DOI: https://doi.org/10.1023/A:1023231006909