Does a judge’s gender make a difference?
University of Canterbury Law lecturer Dr Rhonda Powell looks at the reasons why it matters who the judges are in the New Zealand legal system and how they make judgments.
A recent news article caught my eye: women now outnumber men within the New Zealand legal profession and yet true equality is ‘‘some way off’’.
Despite women lawyers being the majority in New Zealand, there are still insufficient women in leadership roles, such as partnerships in law firms, Queen’s Counsel and the judiciary (the New Zealand Supreme Court being a welcome exception).
The assumption that things will change over time has proven incorrect. Whether the issue is implicit bias, glass ceilings, unsupportive or unfriendly working cultures, or whether women’s careers are compromised when they start families, it is now clear the trickle-up effect has not worked.
This is an issue that we should take seriously. As well as being unfair, research shows that increasing diversity throughout organisations leads to faster and better decision-making.
This is partly because exclusive organisations exclude talented people. It is also partly because people of different backgrounds bring different qualities to their roles. Increasing gender diversity in the judiciary should lead to better decision-making because women judges should bring new and critical perspectives to their judging.
Yet for the most part increasing the number of women in leadership has not in fact led to significant changes in the institutions themselves, at least not yet. The players may be slowly changing but the rules of the game are the same as ever. It is business as usual, with added women.
It seems that adding women is not enough. Why is this?
It may be that only certain women, those who play the game in the way it has always been played, reach the top. It may be that when women do reach the top, their positions are too precarious to risk destabilisation by introducing changes. It may be that we need a critical mass of women in leadership in order to effect change. It will be interesting to see whether the balance tips within the legal profession in coming years.
Recent allegations of sexual abuse of women law students on summer placements within a New Zealand law firm show that gender discrimination within the legal profession continues to be a problem.
Perhaps then, as well as demanding a better gender balance among our leaders, we should also demand a positive commitment to making improvements in pursuit of equality. Whatever their gender, we need leaders who are open to critically examining whether our institutions are truly as fair as they purport to be or whether systematic biases against women and others persist.
A group of New Zealand lawyers, both men and women, recently explored the sorts of decisions a feminist judge would make. One of the ideas behind this enterprise was the realisation that increasing the number of women in the judiciary has not been successful in stopping the perpetuation of gender inequality through the law.
The Feminist Judgments Project Aotearoa, which was funded by the New Zealand Law Foundation, tasked participants with rewriting real New Zealand legal cases, without changing the facts in dispute, and without changing the law. Some of the feminist judges reached different conclusions than the original decision. Others got to the same result by different (and perhaps better) reasoning.
The project allowed participants to define feminism for themselves through their work, whether by challenging rape myths, considering how their decision would affect women’s lives, applying a feminist theoretical approach such as the ‘‘ethic of care’’, or challenging gender bias.
For example, in Director of Human Rights Proceedings v Goodrum an experienced and qualified woman auctioneer claimed sex discrimination against her employer who passed her over for an untrained and unlicensed man. In the original decision, the Human Rights Review Tribunal had rejected her allegations of sex discrimination and confirmed that the young man possessed the essential characteristics of an auctioneer, ‘‘the X factor, and presence, a loud and deep voice, stature, height and the personal characteristics for which he was regarded popular’’.
In the rewritten feminist judgment, Associate Professor Selene Mize identified that the employer had discriminatory ideas about how an auctioneer should look and sound, and acknowledged that the applicant had been subject to sex discrimination.
It is likely that implicit bias – stereotypical ideas about how a good lawyer looks and sounds – is an issue in the legal profession too.
The law is not black and white nor cut and dry. If it were, we would not need judges, whose role is to interpret, apply and, if necessary, develop the law. Words on paper can take different meanings depending on who reads them, and the context in which they were written. In interpreting the law and applying it to a dispute there is room for the judge’s personal experiences and perspectives to inform their decision-making.
It does matter who the judges are. It matters that some of our judges are women. Women judges can and should bring unique and valuable qualities to their judging.
However, it also matters that all of our judges use the tools available to them to avoid perpetuating gender bias through the law.
We don’t just need more women in leadership positions.
We also need people who are willing to use their positions to tackle systematic discrimination that operates to perpetuate disadvantages suffered by women and others.
It is not just who you are but also what you do that counts.
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