Analysis Of The Gender Diversity Issue In The Judicial System
It took 83 years for a female judge to be appointed regarding the fact that being a judge is seen primarily as a male position in society. This traditional gender role can become an issue as judges are responsible for judicial policy making for both genders, yet we have more male representation in the decision-making process. This is becoming more relevant in today’s society as many young women strive to become positive role models in powerful positions as well as influence gendered decision-making for family, criminal and sexual harassment cases.
The alternative perspective brought to the judicial system by female judges will reinvent outdated views and beliefs that are constantly changing in society. Gender diversity in the judicial system is beneficial for society because female judges are said to take on different approaches to cases, open their male counterparts’ minds to new views, and break stigmas surrounding women in positions of power. This will be demonstrated through gendered decision making in specific cases, female interpretation of the law, female and male theories in the courts, symbolism in the cabinet, and the barriers women face as judges.
As minorities women have had different life experiences than men and therefore, they have particular views on certain matters, this ultimately affects their decision-making process and how they interpret the law. There have been many research studies to explore female gendered decision making and interpretation of the law, however the studies yielded mixed results due to the fact that the theory of gendered decision making assumes that the male point of view and behavior is the normalized baseline with which to compare women (Gill, Kagan, & Marouf, 2017, p. 1).
According to Boyd, Epstein, and Martin (2010) in the article ‘The impact of maleness on judicial decision making: masculinity, chivalry, and immigration appeals’ the majority of cases that have shown results of women deciding an outcome differently than men are in cases that female judges can easily picture themselves in. This relates back to the different experiences in life that influence women to make the decisions they do, for example, women face gender inequalities in legal education and professional opportunities leading them to develop a stronger opinion on specific cases (Kay & Gorman 2008). Due to the fact that women tend to have different perspectives on cases they can relate to, it has been argued that they’re more lenient on female litigants however the following theory disproves it.
Sexual assault cases tend to be more personal towards female judges as they interpret them in a more personal way than their male counterparts, as it can be more daunting and a realistic situation for women. As Justice L’Heureux-Dube suggests in the article ‘Gender Diversity in the Intermediate Appellate Courts of Canada’, women are more likely to take a communitarian approach to these cases (Songer, Radieva, & Reid, 2015, p. 6).
Justice L’Heureux-Dube (2015, p. 6) is referring to the concern of how the defendant’s actions impact the community rather than taking the traditional route of justice where the focus is whether or not the assault had taken place. While the importance of justice for victims of sexual assault cases is high, it must also be noted that the cases in which a female judge is present in the court and in the decision-making process, female litigants have double the success (Johnson, 2017, p. 339). This can become an issue due to the fact that it can be seen as gendered and bias decision making, however, it can also be said that in a predominately male system, the communitarian views many female judges adopt can help victims of sexual assault reach justice.
Criminal law case outcomes from female judges are often more conservative opposing the liberal views they have in family and sexual assault cases. It has been found through studies that women are harsher when it comes to delivering a sentence in criminal law cases because of their communitarian views (Songer et al, 2015, p. 6). This contrasts the opposing view for sexual assault cases in which the communitarian view is seen as more lenient. The focus of these cases is the impact in the community rather than the punishment of the actual criminal (Kathlene (1995). This is in part due to females having stronger ties to their communities, family responsibility and usually cleaner criminal records (Doerner & Demuth 2014).
The article ‘Gender Diversity in the Intermediate Appellate Courts of Canada’ interviewed a panel of 52 female and 202 male judges who were anonymously asked questions on gender diversity of judges in relation to criminal cases, producing mixed opinions (Songer et al, 2015, p. 5). Judge CA8 explains that women tend to have a different angle but nevertheless, they are fair and equal to both male and female defendants whereas Judge CA15 believes some women are tougher on the defendants as they identify with the victim. (Songer et al, 2015, p. 9). Female judges can identify with the victims as they usually find it easier to place themselves in the situation, this produces an alternative view on certain cases that male judges might not have thought of.
Female judges have had a large impact on family law cases as well. They often give female litigants hope that their case will be decided from the perspective of someone who can understand their position fairly. Madam Justice Bertha Wilson, the first female justice, discussed the social factors that accompany many family law cases and how female judges will interpret these factors differently than men (Wilson, 1990, p. 512). In divorce proceedings it is common for the women to assume more domestics and child care responsibilities, relying on their husbands’ wages, leaving them without a sustainable paying job and in a poor economic situation. (Douglas, 1993). Another issue with family law cases is custody battles as the mothers are found to be equipped to rear children and are therefore favoured (Johnson, 2017, p. 337). This reliance of female judges favoring female litigants can be claimed as gender bias or can be viewed as an alternative and fair approach in a male-centered system.
The feminist legal theory provides an explanation for why female judges may have liberal and/or conservative views on specific cases and issues. In the previous case examples the theory’s hypothesis that women are more liberal in family law cases and more conservative in criminal and sexual assault law cases can be proven (Gilligan, 1982). This theory notes that the difference between male and female judges is not necessarily their views but rather women see certain situations in differing ways from males that require them to use different approaches to find solutions (Mack & Anleu, 2012; Gill et al, 2017).
Gilligan (1982) suggests that women bring in new values such as connection, caring, and responsibility that male judges don’t comprehend based on their decision-making skills. Considering this theory and the fact that women understand exclusion and discrimination they process cases differently resulting in harsher punishments or leniency depending on the case and the gender of the litigant (Songer, Davis, & Haire, 1994). This allows for a clear understanding that in most sexual harassment, family law and criminal law cases, female judges are more likely to have a separate view than their male colleagues.
In a further exploration of gender bias, it is said that behaviour and outcome of cases can be predicted based on how female judges interact with female litigants. In many hypotheses, female judges are predicted to be more lenient on female litigants given the fact that they are more understanding of situations women often find themselves in. The reason for this hypothesis is that female judges are compared to the male baseline of leniency or harshness towards female litigants (Gill et al, 2017, p. 7). If female judges were compared to a female baseline than it would be known that female judges treat men and women in court to a higher degree of similarity and equality than their male colleagues (Gruhl, Spohn, & Welch, 1987). Masculinity and chivalry theories (rely on the assumption that male and female judges will decide cases and outcomes based on the stereotypes they make based on the gender of the litigants; these hypotheses fuel many theories about the differences of male and female judges.
As a male-dominated occupation, there have been studies on the impact and downfalls of having a predominately male judicial system. Two theories have been proposed to explain male behaviour on the outcome of cases, masculinity theory and chivalry theory. Masculinity theory (Connell & Messerschmidt, 2005) explains that male judges will be harsher on other males in positions of weakness because they don’t meet masculine norms. Chivalry theory (FeldmanHall et al, 2016) explains that men will have more leniency towards women who find themselves in positions of weakness because men often feel the need to be protective towards women in distress. These theories explain why male judges are often harsher on male litigants, when they are seen in a position of weakness and not upholding the standard of masculinity that male judges expect them to be at (Gill et al, 2017). The theories also explain why male judges are lenient towards female litigants which alters the impression that female judges are also more lenient for female litigants (Gill et al, 2017). However, this will be explored and disproved further in the essay with alternate theories of the impact of adding more women in the judicial system.
Consciousness raising is a large concern while looking into gender diversity in the judicial system. Consciousness-raising also known as panel effects is the theory that with the addition of more female judges to the judicial system the more influence they have over their male colleagues (Songer & Crews-Meyer 2000). A recent study revealed that in the Canadian Supreme Court male voting had changed substantially with the increase of female justices, with males altering their votes to the female perspective (Jilani, Songer & Johnson, 2010).
The results of this study revealed that after the addition of females in the court and on the panel, male judges voted noticeably more conservative in criminal cases as well as more liberal in civil liberty cases contrasting the voting patterns of all-male panels (Songer et al, 2015, p. 7). A differing opinion about the open-mindedness of males altering the voting pattern was negative or seen as forced due to the increasing presence of women whereas the study provides information proving that gender diversity has had a positive impact in the decision-making process (Songer et al, 2015, p. 8). This demonstrates the open-mindedness that male judges display to learn and respect new perspectives to the point where they may adopt them.
The critical mass theory (‘The Story of the Theory of Critical Mass’, 2006) argues against the consciousness-raising theory, stating it would take a critical mass of women joining the court before gendered voting has significant effects. A study following gender differences in the Supreme Court of Canada found that female and male justices vote differently but it cannot be directly linked to having female colleagues on the court or how many were present (Johnson, Songer, & Jilani, 2011). Another contrasting view critical theory suggest as opposed to consciousness raising is that critical mass theory suggests that if solely one female judge is serving with males, her voting behavior will typically conform to her male colleagues (Johnson et al, 2011). This proves that women not only bring different views to the courts but that they are not to blame for the shift in male voting behavior, rather they introduce a differing opinion that male judges may accept and share.
Political representation in cabinets is considered a crucial part of legitimizing political institutions as female representation in cabinets encourages confidence in the government and political participation (Fransceschet, Annesley & Beckwith, 2017, p. 489). The issues with appointing female ministers are that they seem to have less experience than their male counterparts, this is due to the fact that women in politics often play fewer roles in policy-making which correlates to receiving fewer opportunities in becoming a larger part of representation in government (Fransceschet et al, 2017, p. 491). In Canada, the current Prime Minister, Justin Trudeau, has legitimized and balanced his cabinet with gender diversity government (Fransceschet et al, 2017, p. 488)
The women in his cabinet create social identities for citizens to relate and look up to while being an advocate for more female-friendly social policies and influencing more women in join office government (Fransceschet et al, 2017, p. 490). These social policies benefit women, children, and families as they relate to maternity leave, healthcare and employment for women (Atchison & Down, 2009). An analysis has discovered that having more women in politics increased female equality in society, pointed out in the article ‘Women and Minorities in Parliament and Legislators’ the ease of excluding a particular group in the system if they are not present in the system (Reynolds, 1999). The failure to understand and proactively address the issues women face is in part caused by the reliance on the judicial system run by men, this requires a greater number of women in positions of power in government to change.
The main dilemma with acquiring more woman in the judicial system is the discrimination and hardships women face whilst striving for this opportunity. The discrimination against female judges once they have already been appointed proves to be a much larger issue than for men (Resnik, 1996). Having to face this discrimination after years of experience and work to achieve the position of a judge requires female to become stronger and exude more effort as they are often overlooked and not taken seriously (Choi, Gulati, Holman, & Posner, 2011). Another barrier women face as judges is the administrative burdens placed upon them when other administrators fall behind, disregarding the fact that these female judges are overly qualified and have already got a heavy workload (Choi et al, 2011). These barriers often deter women from following this path to accepting judgeships and lessens the quality of work from female judges (Choi et al, 2011). The impacts of these barriers for women results in putting career above marriage and family tends to be a major reason for the lack of women in the judicial system and should be addressed (Choi et al, 2011). As well policies should be implemented in order to promote and support women in these positions who also wish to have a family life outside of their jobs.
It is shown that female judges give up a huge role in their lives than male judges in order to pursue the career all the while knowing the difficulties, work, and sexism that lay ahead for them. In the judicial system, women are said to have both lower marriage rates, higher divorce rates, and fewer children than their male counterparts (Choi et al, 2011). As traditional gender roles unfold in society, female judges are required to put in twice the effort to get where they are, giving them no other choice but to choose between family and career (Choi et al, 2011).
The women are often expected to cook meals, clean the house and take care of the children but as a judge, the time allotted to that is very little and can create riffs in traditional marriages that follows gender roles. This proves that the women who do find themselves in positions of judgeships have given up a family and have the determination and drive to enter the judicial system and make a difference no matter the cost (Choi et al, 2011). For this reason, the empowerment and promoting of more women to take on these roles and break gendered stereotypes in order to balance the courts will benefit society by adding their experiences and views in a positive manner.
Taking everything into account, the call for gender diverse courts is justified, the main reasons outlined in this essay was the notion that women take on different approaches to cases, open their male counterparts’ minds to new views, and break stigmas surrounding women in positions of power. Female judges have faced more discrimination and barriers than men in the same position as well as having to overcome criticisms surrounding their judgement and leniency all the while being compared to the standard of the male baseline.
The theories explained in this essay outline the underlying stereotypes of male and female judges as they explore the factors linked to the lack of women in the judicial system. The empowerment and symbolism women bring into the judicial system is inspiring for others and will lead to a more balanced and fair court for all supporting the call for gender diversity in the judicial system.
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