—Teresa Violante, Friedrich-Alexander Universität Erlangen-Nürnberg
Women’s meaningful representation in the judiciary has gained visibility in national and international fora. Still, women remain under-represented in the top echelons of the judiciary. Although international courts have traditionally been the focus of attention for initiatives to counter the low percentage of women occupying judicial posts, more recently national courts have also come under the purview of gender requirements. A nascent movement for statutorily-mandated gender representation requirements for judges in supreme and constitutional courts seems to be in the making.
Women and the judiciary: the international courts
The Beijing Declaration and Platform for Action, signed at the sixteenth plenary meeting of September 15, 1995, at the United Nations Fourth World Conference on Women, established, for the first time, the principle of equal participation of women and gender balance in decision-making bodies. The Declaration alluded to the Governments’ commitment to equal representation, if necessary, through positive action, in all public activity areas, including the judiciary.[1] In 1997, CEDAW adopted General Recommendation No. 23 on Political and Public Life. It affirmed that States should take all appropriate measures to eliminate discrimination against women in political and public life, particularly the right to perform all public functions at all levels of government. The judiciary is expressly included in political and public life.
The OSCE has also called on Member States to “consider providing for specific measures to achieve the goal of gender balance in all legislative, judicial and executive bodies” and to contemplate legislation that would facilitate a more balanced participation of women and men in political and public life, and especially in decision-making positions, to achieve better gender-balanced representation in elected public offices at all levels of decision-making.[2] In the same vein, the 2011 Report of the Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, welcomed efforts to increase the representation of women, including in the judiciary and exhorted for more work to be undertaken by States in this area.
Despite the broad formulation adopted in these documents of the principle of equal representation and the explicit references to the inclusion of the judiciary in the public instances of power, courts have traditionally fallen out of the “quota revolution”[3] landscape. Political scientists usually fail to frame the judiciary as an institutional site that also requires gender balance.[4] Attention to women’s representation in the judiciary is a recent phenomenon. Women’s associations have increasingly voiced more substantial concerns with the slow process of reducing women’s underrepresentation in higher courts.
The International Criminal Court (ICC) was the first international judicial institution to demand a fixed quota of women judges and that some judges were legally trained on gender-based violence.[5] Under the influence of the Rome Statute negotiations, the statutes of the International Criminal Tribunal for Former Yugoslavia, and the International Criminal for Rwanda were amended to include a gender representation requirement for ad litem judges.
In 2004, the Parliamentary Assembly of the Council of Europe voted a Resolution requiring that the three-candidate list to judges of the European Court of Human Rights (ECtHR) presented by Member States included at least one woman.[6] However, the tone of the Resolution was later watered down. Exceptions to the rule were introduced when a State “has taken all the necessary and appropriate steps to ensure that the list contains a candidate of the under-represented sex but has not been able to find a candidate of that sex who satisfies the requirements of Article 21 § 1 of the European Convention of Human Rights.”[7] Nowadays, of its forty-six members, only sixteen are women,[8] a number below the 40% threshold required by the Council of Europe’s guidelines to render an adequate gender balance.
The absence of soft quota requirements produces even more dismaying results, as the European Court of Justice shows compared to the ECtHR. Out of 38 members today (27 judges and 11 advocates general), only nine women are on the bench in Luxembourg (23,7%).
In an overarching diachronic analysis of the composition of international adjudication bodies, Milena Sterio[9] concludes that only the African Court of Human and Peoples’ Rights has a “more appropriate gender representation” because its constitutive document enshrines the requirement for adequate gender representation in the election of the judges.[10]
Gender balance in the national judiciary
Although gender parity or near parity has been reached in some national high courts (Angola, Australia, Canada, Ecuador, Rwanda, Serbia, and Slovenia),[11] it is still lagging in most jurisdictions. The OECD observes that uneven gender representation persists in high-level courts, particularly at the supreme court level, due to gender stereotypes, bias, and challenges reconciling work and life responsibilities.[12]
The issue of gender requirements in the composition of domestic courts is more recent than in international courts and has gained importance in recent years. In Colombia, a 2000 law requires all public offices, including the judiciary, to comply with balanced gender representation setting a minimum 30% threshold for women.[13] In Argentina, a Decree by President Nestor Kirchner on the regulatory framework for the pre-selection of candidates for the position of judges to the Supreme Court of Justice required that each new proposal considered gender diversity.[14]
The Belgium Act on the Constitutional Court requires, since the creation of the institution in 2003, that it be composed of judges of both sexes. This has led, in practice, to the inclusion of one woman at a time. In 2014, after a decade-long legislative process, gender quotas were introduced to achieve 33% representation of the underrepresented sex. As Adelaide Remiche explains, the introduction of gender quotas was not a revolutionary achievement for a court that had already dealt with the integration of other diversity factors, such as linguistic and professional quotas.[15] In September 2023, the Court will reach full parity on the bench, with six women judges out of twelve members. There are also gender quota requirements for the High Council of Justice members.
The Constitution of Burundi requires that judicial power reflects in its composition the whole population, with a minimum inclusion of 30% of women across the judiciary.[16] The 2010 Constitution of Kenya requires the State to “take legislative and other measures to implement the principle that no more than two-thirds of the members of electoral or appointive bodies shall be of the same gender”, thus encompassing the country’s Supreme Court.
In Kyrgyzstan, gender quotas in appointments to the Constitutional Court, the Supreme Court, the Central Commission on Elections and Referendums and the Auditing Chamber of Kyrgyzstan have been stipulated in the law on the bases for State guarantees of gender equality.[17]
The Venice Commission and the OSCE have started actively promoting the inclusion of gender requirements in the composition of judicial bodies, including high courts. That has been the recent case of the Opinion on the Draft Constitutional Law on the Constitutional Court of Kazakhstan, with an express recommendation that the draft be supplemented with provisions ensuring that gender considerations are taken into account throughout the appointment process[18]; Georgia, where the opinion on the draft amendments to the legal framework on the judiciary suggests that the draft be supplemented with provisions ensuring that gender considerations are taken into account throughout judicial appointment processes;[19] and Spain, with a recommendation to introduce a mechanism to ensure the relative representation of women and men within the Constitutional Court.[20]
Last year, a state law was introduced in Iowa requiring an equal number of men and women from each congressional district to serve on the state judicial commission that vets applicants to the state’s highest courts.[21]
Finally, in recent months, two legislative proposals have been introduced to entrench mandatory gender quotas in the composition of the Portuguese Constitutional Court.
Despite the slow institutional change, these initiatives indicate a growing global trend towards including gender diversity requirements, ranging from soft to hard quota mechanisms at the level of national courts, particularly in the high courts.
“More women on the bench”?
Gender balance requirements on the bench are slowly gaining ground. The entry of women’s organisations into the compositions of courts forced legislators and policymakers to put the issue on the agenda. More recently, international organisations operating on human rights and democracy have also taken an active role in promoting the inclusion of mechanisms to enforce a representative bench, often linked with other issues for judicial reform.
The number of courts enforcing mechanisms to ensure gender-balanced representation on the bench is increasing. It seems that the “quota revolution” that Éléonore Lépinard and Ruth Rubio-Marín have examined in detail will soon reach national supreme and constitutional courts.
Suggested citation: Teresa Violante, The Representation of Women in National High Courts: A “Quota Revolution” in the Making? Int’l J. Const. L. Blog, Jun. 29, 2023, at: http://www.iconnectblog.com/the-representation-of-women-in-national-high-courts-a-quota-revolution-in-the-making/
[1] Paragraph 190 of the Beijing Declaration.
[2] Organization for Security and Co-operation in Europe, MC.DEC/7/09, 2 December 2009.
[3] Éléonore Lépinard and Ruth Rubio-Marín, “Completing the unfinished task? Gender quotas and the ongoing struggle for women’s empowerment in Europe”, in id. (eds.). Transforming Gender Citizenship. The Irresistible Rise of Gender Quotas in Europe. CUP, 2018, 1.
[4] Sally J. Kenney, Gender Justice. Why Women in the Judiciary Really Matter. Routledge, 2013, 108.
[5] Rome Statute, Article 36(8)(a)(b).
[6] Resolution 1366 (2004).
[7] Resolution 1627 (2008).
[8] Data available at https://www.echr.coe.int/Pages/home.aspx?p=court/judges&c=.
[9] Milena Sterio, “Women as Judges at International Criminal Tribunals” (2020). Law Faculty Articles and Essays. 1172, available at https://engagedscholarship.csuohio.edu/fac_articles/1172?utm_source=engagedscholarship.csuohio.edu%2Ffac_articles%2F1172&utm_medium=PDF&utm_campaign=PDFCoverPages.
[10] Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Article 14(3). Currently, five of its eleven judges are women.
[11] Nancy Arrington, et al., „Gender Diversity in High Courts”, V-Dem Institute Working Paper, October 2017.
[12] OECD, Government at a Glance 2021, Gender Equality in the Judiciary, available at https://www.oecd-ilibrary.org/sites/2f520410-en/index.html?itemId=/content/component/2f520410-en.
[13] Ley 581 de 2000.
[14] Decreto 222/2003.
[15] Adelaide Remiche, “Belgian Parliament introduces Sex Quota in the Constitutional Court”, OxHRH Blog, 21 April 2014, available at https://ohrh.law.ox.ac.uk/belgian-parliament-introduces-sex-quota-in-constitutional-court/.
[16] Article 213.
[17] Second periodic report CEDAW Kyrgyzstan. Concluding observations: 30th session.
[18] Parag. 50
[19] OSCE Office for Democratic Institutions and Human Rights, Opinion on the Draft Amendments to the Legal Framework on the Judiciary of Georgia, 15 March 2023, parag. 55. Available at www.osce.org/files/f/documents/7/b/539771.pdf.
[20] OSCE Office for Democratic Institutions and Human Rights, Opinion on the Proposed Changes to the Modalities for Nominating Members of the Constitutional Court of Spain, p.18. Available at www.osce.org/files/f/documents/7/f/540689.pdf.
[21] Iowa Code, Chapter 46 (Nomination and Election of Judges), Section 2.
Comments