Shattering the International Glass Ceiling for Female Judges

By Suzanne Dovi

Israel’s Ministerial Committee on Legislation is expected to vote soon on the appointment of women as Sharia judges. This bill would require at least one female representative among the kadis (judges) serving on the courts that rule according to Islamic law. Currently, there are only 11 male judges serving on regional Sharia and appeal courts in Israel.

The government, though, is expected to oppose the bill because it could serve as a precedent for rabbinical courts. In response to the expected rejection, Knesset member and bill sponsor Issawi Freij (Meretz) stated, “all the talk of gender equality suddenly disappears when it comes to Arabs.”

Freij’s comment highlights the hypocrisy of those espousing a commitment to gender parity. Gender parity is all too easily sacrificed for political expediency.

Freij, though, is wrong about the scope of the hypocrisy. For while gender parity is a norm that most modern liberal democracies follow domestically, such states do not share the same commitment to gender parity in international politics. For there is a glass ceiling for women on international tribunals and monitoring agencies.

Let’s be clear. Most modern liberal democracies have not come close to reaching gender parity in politics. In 2015, the global participation rate of women in parliament hovers around 20 percent, according to UN women. In the United States, only 104 (76 Democrats and 28 Republican) members of Congress are women, making women 19.4 percent of the 535 members.

Similarly, gender equity can be lacking on the bench. The US Supreme Court has three female justices out of nine, and Israel has four female judges and 11 male judges sitting on its Supreme Court. In England and Wales, more than half of the judges under 40 are women, but the overall number of female judges was only 25.2 percent in 2015. In Africa, the chief justices of Ghana, Nigeria, Sierra Leone, Gambia, Malawi, Lesotho and Zambia are all women. In Austria, the Czech Republic, Croatia and Italy, the number of female professional judges exceeds the number of male judges. The domestic commitment to gender parity varies from state by state, institution by institution.

Nevertheless, increasingly modern democracies adopt institutional mechanisms aimed at increasing the number of women in politics. In fact, the majority of Western liberal democracies have enacted gender quotas. (Two notable exceptions are the United States and New Zealand.) Even non-democratic states like Libya and Saudi Arabia have adopted gender quotas.

The commitment to gender parity also explicitly extends to the judicial realm. Armenia achieved its gender balance by requiring at least 25 percent of the total number of judges on the candidates’ list be female. If the number falls below, five more names of women must be placed in the list.

In Iceland, the promotion of gender parity with regard to judges and prosecutors is carried out on the basis of the Act No. 10/2008 on equal status and equal rights of women and men. Although the form of the commitment to gender parity can vary, as moderns, we increasingly recognize the need to have different gendered experiences on all levels of political governance.

Why do we need more women in politics? Political science offers three main answers. First, it is a matter of justice. The political institutions that govern diverse societies ought to reflect the diverse make-up of those societies. The absence of women in courts smacks of discrimination and impartiality.

Second, the legitimacy of these institutions partially depends on their perceived fairness.

Third, having women on courts can impact rulings, especially when the ruling is on gender discrimination. Christina L. Boyd, Lee Epstein and Andrew D. Martin found that “when a woman serves on a panel with men, the men are significantly more likely to rule in favor of the rights litigant.” Having a male judge decreases by about 10 percentage points the probability that the judge will rule in favor of the party alleging gender discrimination. To the extent that these tribunals deal with gender discrimination, having more female judges could significantly improve the chances of victims obtaining justice. Women bring their wide-ranging gendered experiences into the judicial arena.

Although human rights organizations increasingly recognize the importance of gender, the norm for gender parity hits aglass ceiling in the international human rights tribunals. According to GQual, the International Criminal Tribunal for the former Yugoslavia has only two female judges out of its 17 permanent judges. The International Criminal Tribunal for Rwanda has two (out of 10). Only nine of the 95 members on the European Court of Justice have ever been women. The Inter-American Court of Human Rights currently has no woman. As of September 2015, women occupied only 17 percent of all positions within the main international and regional tribunals.

Similarly, no woman has ever served on the UN Special Procedures for the Equitable International Order or as Special Rapporteur on Discrimination. (The UN Special Procedures are individual independent experts who are charged to report or advise on certain human rights themes.)

To be sure, having female judges is not a guarantee that rulings will change (or be different from the rulings of male judges). For instance, the UK’s first female Sharia judge ruled with her fellow male judges that the UK government cannot prohibit Islamic polygamy. Women can have a wide array of political commitments and judicial interpretations.

But these dismally low numbers of women show that the nomination and selection processes to these international bodies are broken. Increasing the transparency of these processes is one way to address the international glass ceiling. Another would be for states to take the same kind of proactive steps internationally that they do domestically. Modern democracies need to commit to nominate and support more female candidates to these international tribunals and monitoring agencies. They need to shatter the international glass ceiling.

Suzanne Dovi, Ph.D., is an associate professor at the School of Government and Public Policy at the University of Arizona and a Public Voices Fellow with The OpEd Project.  She is currently a Fulbright Fellow at the University of Oslo, Norway and Guest Researcher at PluriCourts Centre.

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