Feminist Judgments

Abstract

The chapter discusses how the lack of gender knowledge and approach in judicial decision-making can influence the decision and the result of the case. Particular emphasis is given to the role of gender stereotypes and how gender stereotypes bias the working of the bench and the outcome courts achieve. Feminist judgments projects that have been developed worldwide demonstrate that judging is gendered, and women make a difference in the decision-making process. The rising number of women judges makes the bench more representative, although they face many constraints preventing them from asking the woman question. The analysis of the essential features of rewriting judgments in a gender perspective highlights that feminist judgments could contribute to the enhancement and spreading of gender competent legal knowledge.

Authors are listed in alphabetical order. Sections 5.4 and 5.6 are authored by Marco Evola, Ivana Krstić authored Sects. 5.2, 5.3.1, 5.3.2.2.1, 5.3.2.2.3, 5.3.2.4 and 5.5. Sections 5.3.2.1, 5.3.2.2.2 and 5.3.2.3 are written by Fuensanta Rabadán Sánchez-Lafuente.

1 Introduction

This section will explain how judges’ interpretation of facts relies on their perspective (gender stereotypes), which influences their reasoning and the outcome of cases. Thus leading to discrimination itself. This aspect is usually neglected as there is a perception that judges are very knowledgeable, professional, and objective, while some researches demonstrate that they can be even more biased than the general population.¹ Therefore, it will be explained, having regard to the practice of the Committee on the Elimination of discrimination against women, that gender competent legal knowledge in the judiciary is a necessity to increase the access to justice and more just outcomes of cases with a gender perspective. Gender stereotypes and prejudices will be defined. Finally, the evolution of the gender perspective in the European Court of Human Rights judgments will be studied.

Against the background of stereotypes and prejudices marking the working of the judiciaries, this paper considers the reasons for increasing the representation of women on benches and the limits this solution entrenches. In this perspective, assessing the main features of feminist judgments will substantiate the claim for gender balance in courts and highlight the role it can play in improving and spreading gender competent legal knowledge.

Judges are independent in their assessment of the facts of the case and interpretation of laws, leading to different opinions in the same case. It is particularly evident in cases of international courts when the decision is attached with individual and dissenting opinions. The nature of judicial impartiality, independence, knowledge and experience of judges encourages critical reasoning. However, there is almost no research and perception of how much gender stereotypes can influence the collection of facts and interpretation of existing laws, which are also very often ambiguous.

Gender stereotypes can be defined differently, but one of the possible definitions is:

Definition

“a generalised view or preconception about attributes or characteristics that are or ought to be possessed by women and men or the roles that are or should be performed by men and women.”²

Gender stereotypes can be both positive and negative, for example, “women are nurturing” or “women are weak”.”³ However, whether positive or negative, gender stereotypes can have a detrimental effect on both sexes, rightly underlined in the Konstantin Markin case before the European Court of Human Rights, which will be mentioned below (Sect. 5.3.2.2).

The usual perception of persons that have gender bias is that women are caretakers at home and in the family, whilst men are meant to be the family’s breadwinners.⁴ If a person has grown up in that surrounding, it can affect their social identity, anticipated social role, as well as their short-and long-term goals.⁵ Nevertheless, if that person is a judge, this perception can lead to a biased decision for example, in divorce cases and especially in regard to custodial rights of children.

In recent years, some feminist scholars have paid particular attention to the issue of judges’ bias in delivering judgments and decisions. They raised their voices, by stating that this problem was visible in different jurisdictions and that it can very much influence the reasoning or result of the case.⁶ Therefore, several feminist judgments projects around the world very well illustrate that the reasoning or the result of the case can be different if applying a feminist approach.

This chapter contains five sections.

The first one presents different feminist judgment projects that have been developed since 2005. This part covers projects that apply feminist perspectives and rewrite national judgments, and the latest volume rewriting international judgments and decisions.

The second section deals with legal reasoning and underlines the importance of tackling gender stereotyping in decision-making. It was shown that this issue had been neglected, although it can impede access to justice and influence the court reasoning and decision.

The third section covers the issue of equal representation of men and women in the judiciary and chambers. Although it is essential to achieve greater representation of women on the bench, it is also equally important to train all judges to recognise and combat gender stereotypes and eliminate them during the judicial process. Intersectionality is also more and more important and therefore, this issue needs to cover the representation of women coming from more vulnerable groups in a society.

The fourth section very briefly underlines the importance of rewriting courts’ decisions from a gender perspective and its role in the judiciary and society as a whole.

Finally, the last section covers the main features of feminist judgments, dealing with constraints and approaches to feminist judgments.

Learning Goal

The chapter has several learning goals:

• to understand the importance of applying the feminist perspective in legal writing and legal reasoning;

• to identify the main challenges women judges face in applying a gendered law and in working in a legal environment which has been dominated by male judges, highlighting the contribution that feminist judgments can give in order to reshape the legal culture. As well as the main techniques feminist judges can avail themselves of to introduce the feminist view in the everyday working of the bench;

• to be aware how gender perspective and analytical method change the interpretation of facts of the case and/or results of a court decision, which can lead to limited access to justice and/or impunity.

2 Feminist Judgements Projects around the World

Feminist judgments projects are a form of ‘academic activism,’ which appeared worldwide intending to show that prevailing academic and political discourse around the law was limited,⁷ especially in terms of failing to make an impact on judicial thinking and judging. The feminist judgment projects emerged from the sense that the judgments did not “do justice” in either process or outcome.⁸ Therefore, the primary purpose of feminist judgment projects around the world are to demonstrate that the lack of feminist perspective in key decisions is visible. It leads to unjust results in some cases, while in some other cases it leads to the same result but from different aspects. This perspective is very important as adjudicating is traditionally seen as a matter for judges themselves and critical assessment in many countries is not a part of legal tradition and culture. In addition, this is a good combination of theory and practice as academics have a possibility to implement the feminist theory in real cases to show different solutions in a concrete case. It is very important as it also shows that “the law is a powerful and productive social discourse which creates and reinforces gender norms”.⁹

The feminist projects began in the USA, where two books were published with leading feminist scholars who were invited to rewrite the judgments in the cases Brown v. Board of Education¹⁰ and Roe v. Wade.¹¹ Inspired by these publications, in Canada some feminist scholars and litigators, members of the Women’s Court, were engaged in writing alternative judgments of some major decisions of the Supreme Court, published in 2007 in the Canada Journal of Women and the Law.¹² In Great Britain, Feminist Judgments: From Theory to Practice volume was issued in 2010.¹³ This book contains twenty-three key decisions of the Court of Appeal and House of Lords, written by feminist legal scholars. In their judgments, the authors dealt with many principles, covering civil law (such as the law of trespass, the test for capacity to marry, the equitable doctrine of undue influence and implied contracts). Other principles dealt with included criminal law (causation, criminal liability for omission and the role of consent in relation to causing actual bodily harm). However, many other areas were also represented including administrative law, migration law, international law, etc. This book was an inspiration for some 25 legal academics and practitioners from across Australia to gather at the workshop in December 2010 and to pursue an Australian project. The Project, which commenced in 2011, is administered by the University of Queensland and in 2014 published its own volume.¹⁴

The US Feminist Judgments Project gathered a group of leading legal theorists, practitioners, clinicians and law professors who, in a 2016 book Feminist Judgments: Rewritten Opinions of the United States Supreme Court, rewrote 25 crucial U.S. Supreme Court cases using feminist reasoning.¹⁵ Also, that following year, the Northern/Irish Feminist Judgments Project published a collection of 26 rewritten judgments.¹⁶ The specific approach of this project was that each judgment also contained an introductory commentary explaining a social background of the case. A wide range of legal areas was represented, such as animal rights, discrimination law, education, employment, evidence, immigration law, medical law, reproductive rights and policing. This book was accompanied by the collection of crucial New Zealand judgments. Particular value of this manuscript is the use of complex realities of Maori women’s lives.¹⁷

The Feminist Judgment Project also comprises of some legal academics and practitioners from Africa, India and Scotland, who gathered in July 2019 in Edinburgh to discuss their experience with the Project. The Project from Scotland commenced in 2017, and 2 years later published a volume Scottish Feminist Judgments: (Re) Creating Law from the Outside.¹⁸ Academics from India gathered at two workshops and completed a first volume, which consists of 51 judgments.¹⁹ Contributors from Africa launched the project within the Cardiff Law and Global Justice. They had met twice during 2018 intending to discuss the methodology and scope of the future volume, with a focus on decisions from eastern and southern Africa and some cases of the African Commission on Human and People’s Rights.²⁰

Finally, while all mentioned volumes deal with national judgments, the novelty is the manuscript “Feminist Judgments in International Law”, edited by Loveday Hodson and Troy Lavers.²¹ This book contains judgments of the Permanent Court of International Justice, the International Court of Justice and the Court of Justice of the EU. Other judgments also include those from the European Court of Human Rights and international courts and hybrid tribunals: International Criminal Court, International Criminal Tribunal for the former Yugoslavia and Special Court of Sierra Leone. Interestingly, it also contains rewritings of a decision of the Committee on the Elimination of all Forms of Discrimination against Women. This book is precious as it also shows that international judges lacked a feminist perspective in some crucial decisions which are a milestone of international law, such as the Lotus case. Also, all judgments and decisions were rewritten by several authors working together, compared to other volumes where only one scholar was engaged to rewrite the judgment.

The feminist projects address a range of legal topics and areas such as administrative law, contract law, criminal law, constitutional law, discrimination law, housing, evidence, human rights, etc. However, since 2017, the focus was on specific areas of law, and in this same year, a book on rewriting tax opinions was published,²² followed by family law, reproductive justice, employment discrimination and tort opinions.²³ However, few case projects mentioned a question of sexual autonomy, sexual equality and identity. For example, the U.S. project deals with striking down a state anti-sodomy law on privacy grounds²⁴ and sexual harassment when the harasser was motivated by the victim’s failure to “adhere to masculine (or feminine) stereotypes, including the real or perceived sexual orientation of the victim.”²⁵ The international project included a case of Goodwin v. the United Kingdom, decided by the European Court of Human Rights (ECtHR), in which domestic courts refused to recognise the applicant’s personal identity.²⁶ Also, the feminist project, dealing with tax law, contains three opinions which provide new understanding of LGBTQIA+ rights. Issues also include the refusal to grant a medical deduction to a fertile gay man who used reproductive technology in order to have biologically related children. Furthermore, there is the issue of tax deductibility of gender confirmation surgery and lastly the issue of due process and equal protection by treating some state sanctioned same-sex marriages differently from others.²⁷ With the spread and further development of the feminist judgment projects, it can be expected that more judgments will be rewritten from the gender identity and sexual orientation perspective.

3 Gender and Judging

3.1 Legal Reasoning

Legal reasoning is the most important logical operation. Depending on different actors in a trial, there are different perspectives on legal reasoning. Clients approach their attorneys with a strong sense of injustice, expecting that they will find legal basis and practice and will integrate this into a persuasive case.²⁸ Here, legal reasoning is driven by the desired outcome. Legal arguments used by attorneys and evidence provided are essential for the judge’s ultimate decision. However, judges will rely on their own background knowledge and experience, thus have their own interpretations of the evidence and understanding of the law. Jurors will stick with instructions on the law and will apply that law to the evidence.²⁹ Therefore, the most important role in the proceeding is that of a judge who is trained in the law, who applies the law to the facts of the case and relies on different authorities (national case law, international case law and others) to support the main conclusion.

There are 2 common methods of reasoning: deductive and analogical. Deductive (rule-based) means that the judge begins with facts of the case, relies on the rule that applies to those facts of the case and delivers a judgement. Rules have at least three parts: (1) a set of elements, called a test; (2) a result that occurs when the test is satisfied; and (3) a casual term which determines whether the result is mandatory, prohibitory, discretionary, or declaratory.³⁰ However, it is essential to highlight that some rules have exceptions that can change the result if they can be applied in a specific case. On the contrary, analogical legal reasoning means that the judge can examine similarities and differences of the case and previous cases to select an outcome that corresponds to the holding of the case. In contrast to analogical legal reasoning, deductive reasoning is based on distinguishing cases or finding differences among them, the rule does not apply. Reasoning by policy means that a particular rule will be applied to a specific case, if it will create a precedent that would be beneficial for society. Finally, inductive reasoning is the last method, meaning that the lawyer goes from the specific to the general. In other words, the rule is derived from several cases, taking into account their similarities and differences in facts and is synthetised.³¹

All these methods can be used in order to interpret legal norms, which is always indeterminate enough to leave choices of interpretation. If the philosophy behind is gender neutral, the result of the case can be unjust for a party. Therefore, in all legal matters, including interpretation of legal norm, gender perspective should be relevant. But as we will see below, gender stereotypes and prejudices are present in decision making and manifest in the legal rules. This perspective means that it is considered in a process of judgement. Therefore, the writing of legal decisions needs to include legal analyses of social context, including the existence of gender inequalities.

3.2 Gender Bias in Court Decisions

3.2.1 General Aspects of Gender Bias

The recognition in international and national legal texts of the principle of equality and non-discrimination on the grounds of gender, appears to be an essential first step towards achieving equality between men and women. However, this formal equality has also proved to be insufficient for this purpose. In all areas of society, there are inequalities between women and men based on gender stereotypes or prejudices that cannot be eliminated by simply recognising equality in the rules. It must be borne in mind that, over the centuries, this inequality has been based on the attribution of certain characteristics, functions or roles differentiated by the simple fact of being a man or a woman in order to keep men in a position of power and women in a position of submission or subjugation.³²

In order to achieve equality between men and women, the same rights must be recognised for both. Yet but this cannot be done without taking into account the reality of women, the disadvantaged position they have occupied for centuries and which they continue to hold in practice. For example, this happened in the field of work, where labour rights were initially constructed according to a traditionally male parameter in which pregnancy and child-rearing did not exist, because these are traditionally female roles. Thus, placing women at a disadvantage once again, forcing them to choose between either family and work or to face the difficult task of balancing work and family life (“Wollstonecraft dilemma”). The stereotype also persists, to the detriment of men, who want to devote themselves to child-rearing, contrary to what is attributed to them by their gender. All this hinders the creation of a co-responsible parenting model, even though the rules state that fathers and mothers have the same rights and responsibilities over their children. As a result, even though the regulations state that men and women are equal, inequalities based on gender stereotypes persist in different social areas.³³

Example

The author consulted 30 cases that dealt with custodial rights and the relationship between parents and their children, decided by four appellate courts in Serbia. In most cases, the mother was the sole custodian over the children (around 70%). There is also a growing trend of giving custody to a father. However, it is usually in cases when a mother was characterised as an improper parent due to her unstable personality, had financial difficulties, or a child clearly expressed opinion to stay with a father (sometimes even escaping to live with a father). It was also frequent in cases where a mother was serving a prison sentence, was engaged in jobs that do not correspond to her parenting abilities, such as being characterised of “easy morality” (working as a prostitute).³⁴

According to the United Nations Office of the High Commissioner for Human Rights, a gender stereotype is a widely held view or prejudice about attributes or characteristics that men and women possess, or should possess, or about the social roles that both men and women play or should play. A gender stereotype is harmful as it limits men and women’s capacity to develop their personal abilities, pursue their professional careers and to make life decisions in general. Harmful stereotypes can be negative (e.g. women are irrational) or seemingly benign (e.g. women are nurturing). For example, based on the latter stereotype, childcare responsibilities often fall mainly on women. Gender stereotyping is the practice of assigning specific attributes, characteristics or roles to an individual person, male or female, only based on their membership in a male or female social group. Gender stereotyping is harmful, as it could lead to violations of fundamental rights and freedoms. An example is the failure to criminalise marital rape, based on the social concept that women are the sexual property of their husbands. A further example is the failure to effectively investigate, prosecute and sentence sexual violence against women, based, for example, on the stereotype that women should protect themselves from sexual violence by dressing and behaving modestly. Wrongful gender stereotypes are a frequent cause of discrimination against women and a contributing factor to the violation of a wide range of rights, including the right to health, adequate standard of living, education, marriage and family relations, work, freedom of expression, freedom of movement, and effective remedy and freedom from gender-based violence.³⁵

Therefore, material equality requires removing the gender stereotypes that prevent its achievement through the necessary positive and inclusive measures and actions, but without falling into the trap of paternalism, so that, far from promoting equality, the measures adopted perpetuate these inequalities or stereotypes. Moreover, following a gender perspective is no longer enough to adopt measures focused on a single aspect or sector. Rather, cross-cutting measures are required to remove these gender inequalities or stereotypes, involving different areas (legal, social, educational, etc.) in a connected way (gender mainstreaming).

3.2.2 Gender Bias in Court Decisions

The term ‘judicial bias’ or “judicial stereotyping” can be understood as ascribing particular characteristics, attributes, or roles to individuals, depending on their sex and gender, as well as perpetuating harmful stereotypes by not challenging them.³⁶ In identifying and combating stereotypes, the judiciary can make a significant contribution to addressing the structural causes of human rights violations and to adopting appropriate, effective and meaningful remedies.³⁷

3.2.2.1 CEDAW

The main source of obligation to combat gender roles and stereotypes is stipulated in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This Convention underlines in Article 5 (a) that States Parties shall take all appropriate measures to “modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” Article 2 (f) reinforces Article 5 (a) by requiring States Parties to take “all appropriate measures to modify or abolish laws, regulations, customs and practices which constitute discrimination against women.” It is clear, from this provision, that the State is responsible to take all appropriate measures to combat gender stereotyping in the judiciary. As it was emphasised in its General Recommendation no. 33 (which will be elaborated in Sect. 5.3.2.2.2), the State needs to provide capacity-building programs for judges, prosecutors, lawyers, law enforcement officials and students on gender equality. As well as to “eliminate gender stereotyping and incorporate a gender perspective into all aspects of the justice system.”³⁸

These obligations apply to all branches of government, but particularly to the judiciary,³⁹ and judges themselves need to:

• 1. refrain from stereotyping (obligation to respect);

• 2. ensure stereotyping does not infringe human rights (obligation to protect); and

• 3. ensure women can exercise and enjoy the right to be free from wrongful gender stereotyping (obligation to fulfil).⁴⁰

3.2.2.2 General Recommendation No. 33

The Committee on the Elimination of Discrimination against Women⁴¹ has adopted General Recommendation No. 33 on women’s access to justice (2015) that, in line with Article 5 a) of CEDAW, there is the obligation of States Parties to adopt the necessary measures to remove gender stereotypes that prevent women from exercising and defending their rights and accessing effective remedies.⁴² General Recommendation No. 33 says that “stereotyping and gender bias in the judicial system have far-reaching consequences for women’s full enjoyment of their human rights” and that “eliminating stereotyping in the justice systems is a crucial step in ensuring equality and justice for victims and survivors”.⁴³

It should be borne in mind that the judiciary administers justice in accordance with the law, but that a judges’ interpretation of the facts may be conditioned by the existence of gender stereotypes. This may influence their reasoning and the outcome of the case, leading to a discriminatory result.

Thus, even if a law criminalises sexual violence against women, the judge may be contributing to perpetuate a gender stereotype and, ultimately, a situation of inequality. This could be possible if when resolving a specific dispute, the judge considers that the situation was caused by the woman because of the way she was dressed, being alone during the incident, her personal or professional life (promiscuity, prostitution, etc.), character or personality and insufficient resistance even though the male perpetrator was violent. The last reason may be explained with the stereotypical held belief that women enjoy male perpetuated violence during sexual relations.⁴⁴ Similarly, when sexual harassment is justified as a supposed demonstration of love or romantic closeness, or denied in the stereotypical belief of male-hunter/female-prey, i.e., domination/submission, on the belief that a man has to behave that way in order to be a man.⁴⁵ Another example of gender stereotype is the framing of a murder of the wife (and their children) as family tragedy or act of desperation and not as murder.

Example

The Federal Court of Germany denies murder when “the separation emanates from the victim of the crime and the accused, by committing the crime, deprives himself of what he actually does not want to lose”. BGH of 29.10.2008, Az. 2 StR 349/08.

3.2.2.3 CEDAW’s Jurisprudence

Combating bias among judges is very well perceived in several cases decided by the CEDAW. It was first underlined in V.K. v. Bulgaria.

Example

In V.K. v. Bulgaria, the applicant alleged to be a victim of domestic violence by her husband. Although she submitted complaints seeking protection from domestic violence, the court refused to issue a permanent order as there was no evidence of domestic violence in the month prior to the hearing, despite the fact that she has been a victim of intimate partner violence for years (first psychological and economic, and then physical violence). The main question before the CEDAW was whether or not the refusal of domestic courts to issue a permanent protection order against the author’s husband was arbitrary or otherwise discriminatory. The CEDAW found that domestic courts “focused exclusively on the issue of direct and immediate threat to the life or health of the author and on her physical integrity while neglecting her emotional and psychological suffering”, and “unnecessarily deprived themselves of an opportunity to take cognisance of the past history of domestic violence.”⁴⁶ The CEDAW underlined: “Stereotyping affects women’s right to a fair trial and that the judiciary must be careful not to create inflexible standards based on preconceived notions of what constitutes domestic or gender-based violence.”⁴⁷

In another case against the Philippines,⁴⁸ the CEDAW was dealing with one employee of the Davao City Chamber of Commerce and Industry in the Philippines. A former President of the Chamber raped her after an evening business meeting. Eight years passed before the court delivered a final judgment, finding that there was insufficient evidence to prove beyond reasonable doubt that he committed the rape. The applicant claimed that the decision was based on several gender-based myths and misconceptions about the rape and victims of rape, which are as follows: (1) women need to physically resist sexual assault; (2) the victim must be timid or easily cowed; (3) women are likely to fabricate allegations of rape; (4) older men lack sexual prowess; and (5) perpetrators of rape are strangers.⁴⁹ The CEDAW agreed with the applicant. It found that “the assessment of the credibility of the author’s version of events was influenced by a number of stereotypes, the author in this situation not having followed what was expected from a rational and ‘ideal victim’ or what the judge considered to be the rational and ideal response of a woman in a rape situation.⁵⁰ The CEDAW particularly underlined that “stereotyping affects women’s right to a fair and just trial and that the judiciary must take caution not to create inflexible standards of what women or girls should be or […] have done when confronted with a situation of rape based merely on preconceived notions of what defines a rape victim.”⁵¹

In another case, the CEDAW found that the court proceedings were based on the “stereotyped perception of the gravity of extramarital affairs by women,”⁵² “a stereotyped conception of visiting rights based on formal equality”⁵³ and concluded that judges often “adopt rigid standards about what they consider to be appropriate behaviour for women and penalise those who do not conform to those stereotypes,”⁵⁴ which leads to misinterpretation or misapplication of the law.

The CEDAW also emphasises that gender bias in judiciary can deeply influence the enjoyment of human rights of women.⁵⁵ Firstly, it influences the access to justice for women in all legal areas. It also leads to unjust results of the cases, as they are based on preconceived beliefs and myths, rather than relevant facts. It further influences the witness credibility. Therefore, stereotyping negatively influences impartiality and integrity of judiciary, “which can, in turn, lead to miscarriages of justice, including the revictimization of complainants.”⁵⁶ The CEDAW insists that “women should be able to rely on a justice system free from myths and stereotypes, and on a judiciary whose impartiality is not compromised by these biased assumptions.”⁵⁷

Example

In R.K.B. v. Turkey, the applicant was dismissed for an affair with her male colleague, while at the same time her colleague was not dismissed. Dealing with this case, the CEDAW concluded: “The Committee emphasises that full implementation of the Convention requires States parties not only to take steps to eliminate direct and indirect discrimination and improve the de facto position of women, but also to modify and transform gender stereotypes and eliminate wrongful gender stereotyping, a root cause and consequence of discrimination against women. The Committee is of the view that gender stereotypes are perpetuated through a variety of means and institutions including laws and legal systems and that they can be perpetuated by State actors in all branches and levels of government and by private actors. In this case, the Committee is of the view that the Kocaeli 3d Labour Court has clearly allowed its reasoning based on law and facts to be influenced by stereotypes and the Court of Cassation by failing altogether to address the gender aspect, has perpetuated gender stereotypes about the role of women and men with it being accepted for the latter to have extramarital affairs. The Committee therefore concludes that the State party has violated article 5, paragraph (a), of the Convention.”⁵⁸

3.2.3 Consequences of Judge’s Stereotyping

Stereotypes affect the credibility of women’s statements, arguments and testimony, both as parties and as witnesses. They may cause judges to misinterpret or misapply laws or punish women when they consider that the court/the judges have not behaved appropriately according to them. Moreover, not only judges and magistrates, but also prosecutors and all law enforcement officials can allow stereotypes to influence investigations and trials, so that these stereotypes will be present at all stages of the investigation and trial and will ultimately influence the judgement.⁵⁹

It should be borne in mind that the adverse effects of judging based on gender stereotypes affect the specific case it resolves around and has a broader projection.⁶⁰ Firstly, because the fact that the judge bases his or her judgement on this stereotype contributes to give it legitimacy or institutional backing, as the decision comes from the judiciary, which is ultimately a state power.⁶¹ In the second place, because not holding perpetrators responsible for violations of women’s rights creates a culture of impunity. In the third place, because stereotypes compromise the impartiality and integrity of the justice system. Lastly, because stereotyping in the judicial system can lead to a denial of women’s right to access justice and the re-victimisation of complainants.⁶²

Therefore, the judge in the performance of his or her work must combat gender stereotypes by identifying them in the litigation that he or she resolves. Starting from this point, the judge should avoid the introduction of gender stereotypes in the trial and promote their eradication in the specific case.⁶³ Gender Prosecution implies the obligation of judges or legal operators to combat these gender stereotypes as part of their commitment to equality. Gender Prosecution must be present when applying the law, interpreting legal norms, assessing the facts or the conduct of the persons involved (victim, aggressor) for the purposes of applying the norm.⁶⁴

In this regard, General Recommendation No. 33 of the CEDAW Committee recommends a series of measures to the Member States, including “awareness-raising and capacity-building for all actors in justice systems and law students to eliminate gender stereotypes.”⁶⁵

3.2.4 Gender in the Jurisprudence of the ECtHR

The European Convention on Human Rights prohibits discrimination based on sex and gender in Article 14 of the ECHR and in Article 1, Protocol no. 12. It has a very extensive jurisprudence of this matter, although the ECtHR did not focus on gender stereotypes and prejudices in discrimination cases. However, in the Konstantin Markin case,⁶⁶ the applicant relied on Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect private and family life). He claimed that he was refused parental leave for his third child on the same level as his female colleagues in an analogous situation. Therefore, he claimed to be a victim of gender discrimination. The ECtHR noted that the improvement of gender equality “is a major goal in the Member States of the Council of Europe”, all parties to the Convention.⁶⁷ Thus, “very weighty reasons had to be put forward for such a difference of treatment to be regarded as compatible with the Convention.”⁶⁸ The Court further emphasised that “references to traditions, general assumptions or prevailing social attitudes in a given country were insufficient justification for a difference in treatment on the grounds of sex.”⁶⁹ The Court found that “such difference has the effect of perpetuating gender stereotypes and is disadvantageous both to women’s careers and to men’s family life.”⁷⁰ Also, the Court stands that gender stereotypes, “such as the perception of women as primary child-carers and men as primary breadwinners, cannot, by themselves, be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, origin, colour or sexual orientation.”⁷¹

After the Grand Chamber judgment of Konstantin Markin, the ECtHR captured even more directly the phenomenon of gender stereotyping in judicial decision-making. In the Carvalho Pinto case, the ECtHR found that the higher courts in Portugal diminished the amount of compensation in a case of medical maltreatment, which caused injures that prevented a 50 year old woman to have sexual intercourse with her husband. This was argued to be based on gender stereotypes.⁷² The domestic Court found that she was “already fifty years old at the time of the surgery and had two children, that is, an age when sexuality is not as important as in younger years, its significance diminishing with age.” Further, they pointed out that she “probably only needed to take care of her husband”.⁷³ However, the ECtHR emphasised that this “assumption reflected a traditional idea of female sexuality as being essentially linked to child-bearing purposes, thus ignored its physical and psychological relevance for the self-fulfillment of women as people.”⁷⁴ Even more, in two previous similar cases of men aged 55 and 58, domestic courts awarded a very high compensation and concluded that “the fact that the men could no longer have normal sexual relations had affected their self-esteem and resulted in a “tremendous blow” and “strong mental shock”.⁷⁵ The ECtHR concluded that these considerations show the prejudices prevailing amongst the judiciary in Portugal,⁷⁶ which is the first case of this kind. In this case, it was found that stereotypes prevented judges to make an objective assessment of the evidence, which led to denial of justice, even though the applicant had trial by an independent and impartial court. This can have negative consequences both at individual and societal level, as it can lead to impunity for offenders and distrust of the judiciary. This aspect was particularly underlined in M.C. v Bulgaria,⁷⁷ where it was visible that judiciary can base its assessment on common myths in a rape case.

This aspect was also considered in J.L. v. Italy, where the Court dealt with criminal proceedings against seven men who were charged with having committed sexual violence against the applicant and who were acquitted by Italian courts.⁷⁸ The Court found that the Florence Court of Appeal failed to protect the applicant from secondary victimisation during the procedure.⁷⁹ The Court found that the language and arguments used by the Court of appeal convey prejudices about the role of women in Italian society, which prevents women from effective protection from gender violence -even though the legislative framework is satisfactory. The ECtHR particularly underlined that criminal prosecution and sanctions play a crucial role in the institutional response to gender-based violence.⁸⁰ It is therefore essential that the judicial authorities avoid reproducing gender stereotypes in court decisions, especially by demoralising comments in the judgments.⁸¹

4 Gender Imbalance on Benches

Domestic and international adjudicatory bodies have been male arenas for long time. In a male-powered world, the judicial system was not an exception. Poverty, the limited access to legal education and legal profession, stereotypes, gendered-biased mechanisms of appointment or recruitment are the main reasons for women’s under-representation in the judiciary.⁸² As a consequence, a gendered law has been applied from a gendered bench which is considered as a neutral power because of its own nature.⁸³

The wind of gender equality has been blowing in courtrooms and a slow process to grant men and women equal representation on benches has been reshaping the composition of the judicial system.

Example

The 1998 Treaty establishing the International Criminal Court provides that “the States Parties shall, in the selection of judges, take into account the need, within the membership of the Court, for: (…) (iii) A fair representation of female and male judges (Art 36 (8)).” The 2004 Protocol to the African Charter on Human and Peoples’ Rights creating the African Court establishes: “due consideration shall be given to adequate gender representation in nomination process’ (Art 12)”. The 1996 Constitution of South Africa refers to the ‘need for the judiciary to reflect broadly the racial and gender composition’ of the country and mandates that this need ‘be considered when judicial officers are appointed’ (Art 174 (2)). The requirement that ‘the Court shall be composed of judges of both sexes’ is established by Article 34 (5) of the organic legislation of 6 January 1989 relative to the Belgian Constitution.

The said process stems from the claim that the representation of women on the bench has to be strengthened since female judges change decision-making in courts.⁸⁴ Such a claim has attracted severe criticism, not only among those who oppose gender equality.

This paragraph will make a short review of the comprehensive array of studies on the issue arguing that women judges make a difference. Moreover, attention will be paid to the limits that are entrenched in the simple rising of the number of women judges.

Some authors argue that women judges can empathise with female plaintiffs and witnesses. This ability should support parties and witnesses in their activities before the court, preventing them from experiencing gender oppression in courtrooms (e.g. sexual comments, a male-oriented approach in dealing with the evidence of sexual violence). Furthermore, women on the bench ensure that the court or the parties and their attorneys at law do not act in a sexist or gender-biased manner.⁸⁵

In the same practical vein scholars highlighted that women judges could urge their male colleagues to reason and act without stereotypes and prejudice and to ensure that the working of legal proceedings will not be affected by gender attitudes.⁸⁶

From a different point of view, the outcome women judges can reach has to be connected to the introduction of a gendered sensibility in the decision-making process. This focus on women’s sensibility has been developed in two different ways. The first theory points out that women bring their experience of life into legal proceedings which differs from the experience of their male colleagues. In this perspective courts’ judgments will express not only men‘s view of life, but a more comprehensive understanding of human beings. As long as courts are composed of only male judges, their rulings will be the expression of only a male culture and understanding of the law.⁸⁷

The second theory sheds light on the “ethic of care” women make use of arguing that it leads them to judge differently since men judges adopt the “ethic of justice”. Men’s culture is rooted in an atomistic idea of the human experience and in a hierarchical conception of rights.⁸⁸ Women aim at preserving social relationships and combining rights rather than considering them as a source of conflicts. The idea that women’s experiences raises the quality of justice is marked by an essentialist approach and does not seem persuasive.⁸⁹ The approach fails to take into consideration the variety of women’s experience as well as the role that factors such as race, colour and social class play.⁹⁰ Furthermore, this essentialist reasoning does not take into consideration the challenges women entering the judiciaries are called on to face and the constraints that could also limit bringing their female life experience into judging or silence their different voice.

Before examining such constraints, it is worth to recall the claims for a gender balance on bench, which are not immediately connected to the practical working of the decision-making process.

A judicial system which is composed of both sexes is perceived by citizens as offering equal opportunities to all individuals irrespective of their sex. The presence of women ensures that the recruitment of judges is based on fair and non-discriminatory procedures which pay attention to individuals’ merits.⁹¹ Furthermore, such an arrangement of the bench encourages girls to attend legal education, and to run legal profession or take part in public proceedings for the recruitment of judges.⁹²

A different theory refers to the need for the presence of women in courts to ensure representation and legitimacy. Raising the number of women judges enhances the democratic legitimacy of the bench, since a judicial system composed of women and men represents society in all its different components.⁹³

The approach at stake seems more persuasive not only because rising the number of women in public bodies enhances democracy, but also for the connection between democracy and the presence of women in courts covers domestic judicial bodies as well as international courts due to the public authority they exercise.⁹⁴ Furthermore, anchoring gender balance on bench to democratic representation enables us to take into consideration the constraints women judges are subject to and helps to identify the terms for a substantively different judicial decision-making. Notwithstanding its importance in the light of democratic legitimation, the enrolment of women into the judiciary is insufficient and taken alone, cannot provide a different voice because of structural phenomena which could endanger women’s diversity. Constraints that stem from the law courts are to apply, since it is the outcome of gendered political processes where women had no voice in the first place. A further limit originates from the working of the bench. Judges’ decision-making has been shaped by a set of norms and traditions which are difficult to dismantle and which were molded by all-male courts. Hunter has pointed out that “these norms include deference to the separation of powers and a limited judicial role, adherence to precedent, incrementalism, and the upholding of ‘fundamental principles’ of the common law, which may give rise to resistance to legislative reforms that are perceived to contravene those principles.”⁹⁵

Moreover, women judges tend to behave in order to be legitimised by their men colleagues. The need for being accepted and recognised as equals urges women judges to conform their work and opinions to those of their male peers.⁹⁶ The fear to be disqualified in the eyes of those who have always been sitting on the bench makes no difference in the outcome courts achieve.⁹⁷

Hunter observed that “several studies of women and other non-traditional judges have demonstrated their unwillingness to step out of line, and a feeling that they must distance themselves from any notion of difference in order to establish their judicial authority and to be taken seriously by their peers and the judicial hierarchy.”⁹⁸

Female judges’ strict acceptance and adherence to the law, a field made by and for men, is strong, due to their need for acceptance in such a male dominated career sector. This, however, prevents them from applying their own judgment and inserting their gender competent knowledge into decision-making. Such a remark does not refer only to those systems in which judges are appointed⁹⁹ or are chosen because of political allegiance, such as in international bodies,¹⁰⁰ but also, to the systems which are based on public recruitment through competition, though these latest procedures ensure a wider representation of women on bench.¹⁰¹

The phenomena that were briefly described, make it clear that gender balance on the bench is a step towards democratic representation since dismantling a male-biased judicial system entails the involvement of feminist judges in the decision-making processes of courts. As Kelley has rightly observed, “we need more feminist judges: judges who understand women’s experiences and take seriously harm to women and girls, who ask the gender question, ‘How might this law, statute, or holding affect men and women differently?’; who interpret equal protection and discrimination law in light of those provisions’ broad social change purposes; who value women’s lives and women’s work; who do not believe women to be liars, whores, or deserving of violence by nature; who question their own stereotypes and predilections and listen to evidence; and who, simply put, believe in equal justice for all.”¹⁰²

In other words, the democratic legitimacy of courts can be achieved not only through the presence of women, but rather through feminist judges who contribute to substantial equality by asking the woman question.^103,104 As a consequence, reforms purporting to eradicate gender imbalance on bench are part of a broader process involving the spreading of a gender competent legal knowledge. Feminist judgments do not only demonstrate that women have a different voice but can support the progressive shaping of this legal culture.

5 Rewriting Courts’ Decisions from a Gender Perspective

The role of the judiciary is to preserve the appearance of neutrality and impartiality. However, it does not mean that the feminist approach should not be applied, especially when it means achieving gender equality and justice. On the contrary, by applying a neutral approach, the judge can come to an unjust, even discriminate result, although some argue that if gender matters, a judgment can be seen as highly divisive.¹⁰⁵ But in many cases, decision making involves a choice between different possible conclusions, which depends on the judge’s own approach to the law.¹⁰⁶

Nevertheless, if a feminist approach is accepted, it does not mean that a judge needs to refer to feminist theories, but rather to have feminist awareness, to bear the understanding on the position of litigants, facts, evidence, and legal rules.¹⁰⁷ In other words, it is enough to be aware of the feminist approach. This would naturally led to practicing and incorporating the realities in which women live, to ask specific type of questions, to raise particular issues, and “to embrace insight and knowledge obtained, by viewing the world through a feminist lens”.¹⁰⁸

It also does not mean that a judge needs to identify himself/herself as a feminist, but the judge should not perpetuate negative characterisation of feminism.¹⁰⁹ Feminism in this sense means a fluid, multidimensional methodology and practice, which aim is to create a world in which women enjoy full personhood.¹¹⁰ It is important to underline what is meant by feminism, as it has different branches, and represent different strands, such as liberal feminism, radical feminism, Marxist and socialist feminism, lesbian feminism, cultural feminism, women-of-colour feminism and postmodern feminism. This approach is very often in a conservative legal profession, where even female judges criticise feminism and refuse to use gender sensitive language.

Some authors provide a checklist of approaches to apply the feminist perspective, such as, among others, to challenge gender bias, and “to contextualise and particularise reasoning from context and making individualised rather than categorical or abstract decisions”.¹¹¹ It also presupposes, that fact finding and assessment of witness credibility should not be based on stereotypical and gender-based assumptions, as stipulated in the jurisprudence of the ECtHR and the CEDAW.

However, it is important to underline that this approach does not guarantee that the feminist approach will necessarily lead to a different outcome of the case. It can only lead to different facts of the case that will be considered, or the adoption of another understanding of applicable legal principle.¹¹²

Example

In the Australian Feminist Judgments: Writing and Rewriting Law, it was underlined that in some cases, the result of a rewritten judgment would be the same as the original one. However, even in that case, it is valuable to apply the gender approach: “Most of the feminists included in this collection come to a different conclusion to the original case or to the majority judgment. In seven cases, however, the feminist judgment-writers agree with the outcome of the original decision but take the opportunity to provide a different account of the facts or to adopt another understanding of applicable legal principle, or both. […] Kylie Burns’ judgment in Cattanach v Melchior also concurred with the majority, but her judgment provided an opportunity to address a gap in the majority reasoning in relation to whether pregnancy is a form of economic loss, or some other form of damage or harm.”¹¹³

However, in the majority of cases, a different approach would lead to a different conclusion. Either a legal rule will be interpreted differently or different facts will be considered. Also, it is noticeable that writers who took part in rewriting judgments usually rely on social facts or empirical surveys with the aim to support their view. For example, in one judgment, extra-legal materials were used to demonstrate that women suffer in the workforce, or statistical data was used to find which age group was most vulnerable to sexual assault in Australia.¹¹⁴ Another approach was to give names to parties, where there are statutory restrictions on identifying the parties. Thus, some writers claimed that courts never talk about real children and their names, and that their aim was to humanise the process.¹¹⁵

Rewriting judgments has a triple role:

It can show how feminist ideas can be applied in the practice of legal decision-making;

Feminist judgments can provoke critical thinking about judicial decision-making and show how constructing the facts can lead to different case results; and

It can also encourage discussion on particular decisions and to propose a new judicial approach.¹¹⁶

6 The Main Features of Feminist Judgements

The previous paragraphs made it clear that gender equality entails among other issues the shaping of new techniques of judging through the adoption of the lens of feminism.

The different Feminist Judgments Projects scholars developed focus on several concurring needs: (a) facing the challenges which are embedded in a gendered law; (b) counteracting those stereotypes which affect the working of courts; (c) spurring society to reconsider the relationship between law and gender equality; and (d) displaying that a gender competent legal knowledge can support the achievement of substantial equality. Feminist judgments are based on the idea that law provisions can be applied, taking into consideration the special condition of the women involved in a concrete dispute, notwithstanding law represents the outcome of social and economic processes subjecting women to male domination. Feminist judgments can either give rise to the revision of the gendered approach in the enactment of law and the concepts which are entrenched in the male-dominated assessment of rules, or mold legal concepts.

Example

In rewriting the famous Lotus Case,¹¹⁷ the feminist judges challenged States’ sovereignty as a fundamental principle of the international legal system by exposing “the gendered nature of (Western) sovereignty and the gendered personification of States. Strikingly, for their judgment, the feminist chamber decided to adopt the name of the Turkish vessel, ‘the Bozkurt’, that had collided with the French vessel, ‘the SS Lotus’, thereby directing us to think about the way in which power structures operate in international decision-making. The re-written judgment also places the case in historical context and opens up questions about the right of women that were not posed by the original tribunal. In finding that Turkey’s exercise of jurisdiction did not violate international law, the ‘Bozkurt Principle’ de-centers State sovereignty and establishes international co-operation as a hallmark of international society.”¹¹⁸ The rewritten judgment sheds light on the masculine nature of the concept of sovereignty, which is grounded on the Western legal culture. Furthermore, the rewritten judgment reshapes the role of international law as an instrument for cooperation between States in making application of a different understanding of sovereignty: “the emergence of the Republic of Turkey is indicative of a new era in international law, one where new States are claiming their sovereignty and thus their entitlement to sit within the international community of nations. This marks the end of an Old European Order […] The Court reflects that Turkey has in effect been ‘feminised’ by France and other European powers, through capitulations, formal and informal, and through the type of pressure France is asserting via the raising of this case. The Court notes with concern international law’s history as one which persistently feminises weaker and primitive peoples, that is non-white non-Europeans. This is just as men, including white men from ‘civilised nations’, have subordinated women […] The Court relies on an understanding of sovereignty as built on the spirit of co-operation, community and pacific settlement of disputes, one that resists inequalities in power relations between those recognised as States and thereby also challenges nineteenth century and positivist conception of free will, which assume formal equality without considering the substantive inequalities between States.”¹¹⁹

The consequences of such an effect of feminist judgments will be highlighted after examining the main features marking their writing.

6.1 The Constraints on Feminist Judgments

It has been observed that feminist judgments “present what the tribunals could or should have done rather than what they would have done if exposed to feminist thought circulating at the time of the original judgment.”¹²⁰

Consequently, writing feminist judgments is subject to the same constraints under which the original judges were called upon to operate.¹²¹ Feminist judgments are decided on at the same time as the original judgments were delivered,¹²² and are based on the same facts which were established in the original judgment. The feminist judges are obliged to rely on the same material which was available to the original judges and to take into consideration the proof on which the original judgment was based, comprising expert evidence. The state of the law to which reference can be made is the state existing at the time of the original judgment, which must be applied in accordance with the relevant legislation and precedents. Feminist judges cannot avail themselves of statutory interpretation or the incremental development of the common law. ¹²³ In rewriting appellate judgments, feminist judges limit themselves to the issues and arguments the parties raised in their appeals and the authorities they referred to. In criminal proceedings feminist judgments cannot change the charges the prosecutor made. However, in commenting on the experience of Feminist Judgments in International Law, Charlesworth observed that the international feminist judges seem more prepared overall to abandon black letter law and to prefigure an expansive judicial agenda.¹²⁴

Example

“For the Genocide Convention, the feminist ICJ bench establishes a two-pronged mechanism to deal with the impact of reservations that are objected by other States: all Contracting States must specifically accept or reject a reservation, with objecting States clarifying the legal basis of their objection. In the case of an arguably impermissible reservation, a dispute resolution process is engaged. The Court also introduces the notion of placing a time limit on a reservation effectiveness, with review at least every five years.”¹²⁵

This difference in the approach towards rewriting judgments could be explained having regards not only to the different features of domestic law and international law, but also to the more evident connection between law and politics marking the latter.

6.2 The Feminist Approach to Judgment-Writing

Since the judgments to rewrite are subject to the same procedural rules of the original rulings, feminist judgments can be put into place via the rulings of a single judge or those of a collegiate body. As well as through the use of instruments such as concurring or dissenting opinions, if such instruments are provided for by the statute of the relevant body.

The rewriting judgments projects move from the idea that the original judgment perceived the law wrong or relied on a skewed account of the facts. Instead they involve a series of activities embodying a specific method, making the feminist point of view rise. Hunter has identified several features, marking judgment-rewriting from the practice of feminist judgements.¹²⁶ The first of these features is to be found in asking the woman question.¹²⁷ Writing a feminist judgment originates from the consciousness that neither the law nor the practices which have been developed in applying it are neutral, thus highlighting the consequences that they produce on women‘s legal status or socio-economic conditions.

Example

The International Criminal Court convicted Thomas Lubanga Dyilo of the war crimes of the conscription and enlisting of child soldiers under the age of 15 as part of the rebel group he led during the conflict in the Democratic Republic of the Congo.¹²⁸ “The re-written judgment clarifies the relationship between the crimes of conscription and enlistment, drawing on feminist insights on the notion of consent. It also highlights the silences of the original judgement in terms of the experiences of the girl child, revisiting what it means to ‘actively participate in hostilities’. Finally, it foregrounds the particular gendered experiences of sexual violence that were marginalised in the original judgment. The re-written judgement contextualises the experiences of girl and boy children soldiers and emerges with a more gender-sensitive approach to the questions raised”.¹²⁹

The case is also of interest because it embodies some of the difficulties courts may face in assessing criminal cases from a feminist point of view, since adjudicating bodies cannot widen the charges prosecutors made.

Rewriting judgments entails finding out the way in which rules impact women’s lives and putting them into fore. This approach is anchored in a shift from the perspective of the subject of law as an atomised individual to human relationality and interdependence. This revision of traditional concepts of law urges feminist judges to set aside intention and to focus on effects of actions.¹³⁰

Example

In the Mundon¹³¹ case “the Employment Appeal Tribunal held that an employer would only unfairly dismiss a woman on the basis of her pregnancy if they did so intentionally or if, at the time of the decision to dismiss, they knew that the reason for dismissal was related to her pregnancy. The feminist judgment contends that this creates too wide of a ‘get out’ clause for employers and proposes instead that a dismissal should be considered unfair if it is objectively based on or related to the woman’s pregnancy, and that the onus should be on employers to make reasonable inquiries when dismissals are pending to ensure that they will not be unfairly based on pregnancy.”¹³²

Nowadays, asking the woman question is more and more connected to intersectionality, so that the authors of feminist judgments pay attention to the link between being a woman and other factors such as colour, race, belonging to a minority, social class.

Example

The rewritten decision of the CEDAW Committee in the case Kell v Canada¹³³ widens the perspective of assessment of the law stressing Kell’s indigeneity. Ms. Kell, an indigenous woman living in Canada, secured housing pursuant to a legal scheme laying down special rules for indigenous people. Because of the abuse of her partner, Ms. Kell was forced to leave her home. Kell’s partner changed the locks and managed to place the lease of the home in his name alone. Ms. Kell’s legal battle attempts to regain access to her home was unsuccessful. “In their Views, the feminist chamber argues that her ‘intersectional marginality’ served to make her invisible to the Canadian legal system; she was a single parent, an indigenous woman and a domestic abuse survivor. Although the original Committee found that Canada had violated certain articles of the Convention, the re-written views foreground the blind spots of legal process, in its analysis and adopts an intersectional approach that highlights in particular the role that Ms. Kelly’s indigeneity played in her experience of discrimination and marginalisation.”¹³⁴

The second feature of rewriting judgments is including women. In describing this feature, Hunter pointed out that feminist judgments include women “both in terms of writing women‘s experience into legal discourse (as individual litigants and collectively, drawing on relevant research evidence) and in the construction of legal rules.”¹³⁵ The method takes shape in telling the story of the case in a manner different from that of the original judgment. This approach enables feminist judges to shed light on the specific circumstances of the persons who are involved in the case, placing instead, the women’s conditions at the centre as they emerge from the relevant materials. This arrangement is necessary for the achievement of a different outcome in deciding the case.¹³⁶

Example

The case R v Dhaliwal¹³⁷ offers a good example of this technique. Gurjit Dhaliwal lived with a violent husband and put an end to her life by committing suicide. The extent of Dhaliwal not being involved in the trial is filled up by the writer of the feminist judgment, calling on the Lords to focus on the cruel treatment she was subject to. “The following brief sketch of agreed facts cannot begin to convey the intolerable treatment that the victim, Gurjit Dhaliwal, was subjected to by her husband, Harcharan Dhaliwal, for over a decade. Victims of domestic abuse are too often silenced, metaphorically speaking, by abusers, society and the institutions of the state. The tragic suicide of Gurjit Dhaliwal also renders her voice literally absent from these, and earlier, court proceedings. Posthumous insights from her diaries, witness recollections and official records do, however, provide partial glimpses of her plight.”¹³⁸

Moreover, including women could entail walking along paths which have not been explored by the judges and pushing judgments towards new borders, through the widening of the scope of the legal status that are worth to be protected in the case at issue.

Example

The rewritten judgment the ECtHR delivered in Christine Goodwin v the United Kingdom¹³⁹ clarifies how considering lived experience changes all understanding of the interests involved in a legal dispute and leads to a revisions of traditional legal concepts. The case concerned the construction of gender under international law for Christine Goodwin, a trans woman, who sought legal recognition of her gender before the Court in Strasbourg. The original judgment recognised the breach of art. 8 (right to private life) and art. 12 (right to marry). “The feminist chamber’s rewriting of the judgment shows that the original judgment served to reinforce a binary understanding of gender and was silent on a number of important issues. […] a key method adopted by the feminist chamber was to pay greater attention to the lived experiences of Christine Goodwin and the marginalisation, challenges and humiliation she endured because of the incongruence between her lived and legal gender. Significantly, the rewritten judgment frames the obligation on the State as a negative one; that is, the State must refrain from imposing a gender on an individual that she does not identify with. Placing her suffering at the hearth of its reasoning, the feminist judgment also takes Convention jurisprudence into new territory by finding that the State violated Ms. Goodwin right to be free from inhuman and degrading treatment.”¹⁴⁰ This is one of the crucial points of the reasoning of the feminist judgment: “the applicant submitted that she has suffered numerous humiliating experiences in her everyday life as a result of her inability to change to her legal sex. Although the applicant did not invoke Article 3 of the Convention in her application, the Court considers that Article to be relevant to her complaint because of the centrality and extent of the claims about humiliation. When taken together, the facts submitted by the applicant—in particular, the alleged discrimination at work; the problem at work arising from the link between her previous sex and her National Insurance number; the difficulties created in dealing with the DSS; the inability to access certain advantages in goods and services because of the requirement to produce a birth certificate; and a fear of reporting crime to the police—suggest that the issue of humiliation is fundamental to every aspect of the applicant’s complaint about her inability to reconcile her gender identity with her legal sex. Therefore, the Court considers it appropriate to consider the applicant’s complaint under Article 3 of the Convention.”¹⁴¹

The third feature is the fighting against gender bias which is anchored on those stereotypes marking legal doctrine and judges’ reasoning.¹⁴² One of the most relevant expressions of gender bias is the admission of sexual history evidence in rape trials.

Example

The rewritten judgment in R v A (No 2)¹⁴³ dealt with this problem pointing out that “the treatment of witnesses in court adversely impacts on decisions to report rape to the police. Who would want to put themselves before a voyeuristic court to have their sexual history trawled through and criticised, and often with little direct relevance to the issues at trial? The police and prosecutors often warn witnesses of the harrowing nature of giving evidence at trial, sometimes from the best of intentions, with the result that many withdraw their complaints. Accordingly, while this case is about the admission of evidence at trial, its impact will reverberate throughout the criminal justice system in its dealings with rape.”¹⁴⁴ Such a practice stems from the idea that rape trials are “particularly subject to the danger of deliberately false charges, resulting from sexual neurosis, phantasy, jealousy, spite or simply a girl’s refusal to admit that she consented to an act of which she is now ashamed.”¹⁴⁵

The feminist judgment argued for the need to introduce restriction on the use of sexual history evidence in order to protect the women’s fundamental rights. “Article 8 of the Convention protects the right to respect for private life […] While it will sometimes be necessary to introduce evidence about a complainant’s sexual history, thereby constituting a necessary and justified interference with privacy rights, this is not invariably the case. In particular, it has been demonstrated that many unnecessarily intrusive questions have been asked of complainants, often as a matter of routine; potentially, therefore, in breach of the complainant’s article 8 rights. […] Although not argued before us, it seems to me that restrictions on the admission of sexual history evidence may be necessary to ensure compliance with a state’s positive obligations, inherent in article 3 of the Convention, to bring perpetrators of rape to justice. […] to the extent that the admission of sexual history evidence impedes proper investigation, prosecution and conviction of perpetrators, restrictions may be justified to ensure compliance with article 3 positive obligations. Indeed, where evidence or questioning is not necessary and reaches the requisite threshold of harm, for example by inducing significant psychological injury, article 3 may be directly engaged. Article 3 is a non-derogable right, meaning that if it is breached, other Convention rights such as the article 6 right to a fair trial do not take precedence.”¹⁴⁶

The fourth feature is contextualisation and particularity. In Hunter’s words, it entails “reasoning from context and the reality of women’s lived experience; making individualised rather than categorical or abstract decisions; paying particular and careful attention to the individuals before the court; and not judging women for making different choices from those the judge herself would have made.”¹⁴⁷

This technique is strictly connected with the features already examined since it is functional to ask the woman question and to include women in the narrative of the case. However, it possesses its own hallmarks because of the way in which feminist judges make use of in rewriting judgments.

The introduction of social framework material into the judgment is one of the instruments adopted in order to identify the broader context within which the specific facts of the case or the legal items arising from the case have to be placed. This additional material could derive from research evidence on the topics at stake.

Example

In Baird Textile Holdings v Marks & Spencer PLC¹⁴⁸ the point of departure of the reasoning of the feminist judgment was the acknowledgment that English contract law does not recognise long-term commercial relationships such as that at stake in the case at issue. The need for aligning English law to commercial practice spurred the feminist judgment to rely on research evidence dealing with the dynamics of commercial relationships: “the umbrella contract is an increasingly popular device which can be used to give recognition to long-term relationships in which a series of orders for goods and services are placed over time. In this context, it should be a matter for concern that a mechanism devised by the marketplace to facilitate efficiency is not fully recognised by our courts. There is now a rich body of academic research detailing what motivates the maintenance of a successful commercial relationship on a day-to-day basis and over time. Counsel for Baird have referred us in particular to the excellent empirical studies of the lived world of contract undertaken by Hugh Beale, Tony Dugdale¹⁴⁹ and Richard Lewis¹⁵⁰ in the United Kingdom, and to Stuart Macaulay¹⁵¹ and Lisa Bernstein’s¹⁵² work in the United States. Reading their research I have been struck by how familiar their findings would sound to lawyers such as myself who spent their formative years at the commercial bar. Professor David Campbell in “Ian Macneil and the Relational Theory of Contract”¹⁵³ has aptly observed that we now have so many descriptions of how successful long-term contracts operate in the business world that the real challenge is to determine the extent to which the law of contract is in tune with the standards and expectations of commercial parties. The facts of this case appear to reflect the findings of empirical studies about what binds commercial parties together in successful relationships so well that I would consider it inappropriate not to say something about the enhanced understandings of the commercial sectors which have emerged from academic debate and to reflect on how well the modern law of contract serves the business community.”¹⁵⁴

In other cases, references are made to legal materials which are drawn from international law, the law of other States and domestic sources such as parliamentary debates, policy documents.

Example

In rewriting the judgment, the ECtHr delivered in A, B and C v Ireland,¹⁵⁵ the feminist Court referred to the domestic laws of European States to argue that abortion is available in virtually all of the states parties on certain fundamental grounds¹⁵⁶ and on statistical data pointing out that “the abortion policies of the Irish government impose a significant burden on women. Official statistics of the United Kingdom demonstrate that 4422 women travelled to that jurisdiction to obtain an abortion in 2009.”¹⁵⁷

But the use of these materials is just one element of feminist judgments since they are marked by the introduction of feminist common knowledge.¹⁵⁸ The knowledge of non-legal items and their evaluation are usually the expression of judges’ gendered culture.¹⁵⁹ Feminist judgments dismantle this male appreciation, introducing social experiences into legal discourse counteracting the male mainstream which excludes women from the judicial experience. In so doing, feminist judgments tend to reshape the knowledge of the world in a feminist perspective.¹⁶⁰

The fifth feature of feminist judgments consists of seeking to remedy injustices and to improve the condition of women’s life. Feminist judgments do not stem only from the unsatisfactory solutions of judgments gendered courts delivered. Rewriting judgments is intended to foster the development of gender competent legal knowledge, in order to give new impetus to judicial experience in the wider perspective of contributing to the improvement of women’s social and economic conditions. Charlesworth has pointed out that feminist judgments accord prominence to women’s and other outsiders lives and voices.¹⁶¹

This approach highlights the sixth feature of feminist judgments: promoting substantive equality. Feminist judgments contain a severe criticism of liberalism.¹⁶² The attempt to go beyond the liberal notion of formal equality embodies one of the expressions of this criticism.

Example

In EM (Lebanon) v Secretary of State for the Home Department¹⁶³ the feminist judgment argued that the order of deportation was in breach of the fundamental right to equality: “this House does, however, have a duty to uphold the law, including the law as it derives from regional and international human rights norms. The Convention will preclude the appellant’s deportation to Lebanon if it can be shown that she is at real risk of a flagrant breach of her Convention rights such as to have them completely denied or nullified. As I have alluded to above, in my judgment, in this case the appellant’s right to gender equality in the enjoyment of her family life, including with her child, and in any legal proceedings that relate to her family life would necessarily be flagrantly breached were she to be returned to Lebanon. This is because, by simple fact of her womanhood, she would be automatically denied custody of her child”. As a consequence of this reasoning, the feminist judgment considers the breach of art. 8 ECHR as an unsatisfactory outcome since “to have decided the case on that basis would, in my view, have been to ignore the central feature of this case, namely that the wrong that would be done in Lebanon to this appellant would be most fundamentally to deny her equality because she is a woman.”¹⁶⁴

The last feature of feminist judgments has been identified in drawing on feminist legal scholarship to inform decisions.¹⁶⁵ Feminist judgments are grounded on feminist jurisprudence, though the rewritten judgments make no reference to the theoretical approach grounding it. However, the linkage between gender competent legal knowledge and rewriting judgments comes out from the different techniques that were briefly analysed. The widening of the legal and factual framework, the attention to the specific circumstances of the case, the criticism of liberalism represent the concrete application of the theories which shape the feminist lens feminist judges make use of. The dissenting opinion of the feminist judge in Prosecutor v Karadžić helps us to understand the way in which the female theories of law combines the different features of feminist judgments. Thus highlighting the unsatisfactory results of the gendered application of law.

Example

The International Criminal Tribunal for the former Yugoslavia acquitted Karadžić of genocide in the Municipalities of Bosnia Herzegovina for the genocidal intent was not proved. The feminist judgment reached a different conclusion.¹⁶⁶ “In my judgement, the nature, scale and content of the sexual violence committed in the Municipalities not only amounts to the actus reus of genocide, but also lays bare that the intent in committing crimes of rape, indecent assault, forced gross indecency and assault, sexual slavery, forced prostitution, forced nudity, and forcible impregnation, was to destroy in whole or in part the target group. Through these crimes, domination and absolute control over members of the group was asserted and exercised. These crimes were committed across the length and breadth of the Municipalities, in villages and towns, in public and in private, in streets, in houses, and in detention camps. The number of victims are vast. In the context of patriarchal, patrilineal, religious and conservative communities—and against a backdrop of hundreds of years of ethnic and ethno-religious rivalries and violence, including the perceived genocide of the Serbs in WWII—the only, and compelling, inference to be drawn is that genocidal intent was present.”¹⁶⁷ The Author identified the theoretical foundations of this outcome pointing out: “in contrast to the original judgment, this dissenting judgment, written by an individual feminist judge, will use the techniques of asking the woman question, telling women’s stories and exploring background context to achieve a richer and more complete picture of the issues before the court. Coupled with a willingness to see and understand both the significance of pattern evidence of sexual violence and its deeply communicative purpose and impact, this judgment clearly finds evidence of genocidal intent.”¹⁶⁸

This latest example makes it clear that the feminist assessment of law could reshape gender relationships. In applying feminist theories to real legal disputes feminist judgments enhance the development of a gender competent legal knowledge and give rise to a virtuous circle between theory and practice. Viewed in this perspective, feminist judgments could remove the limits which are intrinsic to the raising of the number of women in courts.

7 Conclusion

Achieving gender equality in access to justice requires the absence of gender stereotypes in the judicial system. This presupposes measures to ensure that the judicial process from its initiation until the delivery of a judgment is free from gender stereotyping. The first step is to achieve a gender balance in court representation. However, the greater proportion will not achieve the greater result in terms of better access to justice and the more just outcome of the case. Therefore, it is essential to monitor judgments and organise training of gender-sensitive judges and jurists, as set out by the CEDAW Committee in its General Recommendation No 33. At the international level, for the past decade, the CEDAW Committee has delivered several important decisions which underline the importance of combating gender stereotypes in the judicial making. Also, the ECtHR in several judgments underlines the importance of tackling gender bias in the judiciary. However, there is still a lack of a gender-sensitive approach in some of its decisions.

The rising number of women judges is a step forward towards democratic legitimacy of the judiciary. Still, it cannot dismantle the male-centered mechanisms ruling the proceedings leading to courts’ decision-making. The need for a more comprehensive number of feminist judges, highlights the role that rewriting judgments could play in developing gender competent legal knowledge. Nevertheless, the experience of states that face feminisation in the judiciary shows that the more critical issue is to secure that judges take into account the feminist perspective, to understand it, and to apply it when assessing the credibility of a witness, facts of the case and interpretation of the law.

Questions

• 1. What is considered to be gender stereotyping?

• 2. Why can gender stereotypes in judicial system hinder women’s access to justice?

• 3. What is the main purpose of feminist judgments projects around the world?

• 4. What are the gender stereotypes that the CEDAW Committee underlines in case of Karen Tayag v. Philippines? What are the rights of Case of Karen Tayag v. Philippines that have been violated, according to the CEDAW Committee? What are the recommendations it makes to the Philippine State?

• 5. What were the gender stereotypes present in case of Carvalho Pinto v. Portugal, decided by the ECtHR in 2017?

• 6. Research and analyse a judgement from the courts in your country that has resolved a case arguing a decision based on gender stereotypes.

• 7. Research and analyse a judgement from the courts in your country that has resolved a case bearing in mind a gender perspective.

• 8. What are the main reasons for gender balance on bench?

• 9. What are the main features of feminist judgments?

• 10. What are the constraints on rewriting feminist judgments?