Thursday, April 25, 2019
Kathryn Stanchi, Bridget Crawford, & Linda Berfer, Why Women: Judging Transnational Courts and Tribunals, Connect. J. of Int'l Law (forthcoming)
Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more female judges. Instead, judges with diverse perspectives and life experiences, regardless of their gender, will make a difference in the substance and form of judicial decisions.
This essay makes two contributions to the dialogue about judicial diversity. First, the essay posits that the overall justice project would be better served by abandoning binary categories like “men” and “women” in favor of recognizing that there is great diversity in both sex (however measured) and gender identity (however expressed). Framing any policy discussion in terms of “men” and “women” will fail to account for biological variety, individual difference, diverse gender identities, multiple sexual orientations, and the significant role that law and society play in constructing these identifiers.
The essay’s second intervention employs an expansive view of feminism as a broad justice project to consider that multiple facets of a judge’s lived experience, identity and perspective inform decision-making. Bias and elitism in legal education and the legal profession occlude the judicial pipeline. Instead of carrying a flag for more “women” in the judiciary, advocates for more diverse courts and tribunals should focus on elevating those with the least professional capital: people of color, low-income people, immigrants, graduates of non-elite schools, professionals from rural areas, and people with non-cisgender identities, to name a few groups. Adding more women to the bench may seem to be an immediate solution, but it will not achieve the goal. Attaining true diversity will be more difficult.