Judging in the United Kingdom: a man’s job?

The underrepresentation of women in judicial office is often at the core of judicial diversity arguments. A motivating catalyst for judicial diversity is the structural discrimination and marginalisation that women in law have had to confront. Whilst equality of opportunity is a deeply rooted argument fuelling the appointment of more female judges, it is nonetheless not sacrosanct. While much of mainland Europe, including France, Spain, Italy, Holland, Denmark, Poland and Greece, have a majority of female judges; Britain paradoxically has one of the lowest proportions of women on the bench. In Scotland, the proportion is only 21.6% with Azerbaijan being the only state with a worse gender balance at 10.5%.

I.   Phallocracy in courts: a historical truth

An undeniable matter of fact is that historically, the judge has been male. Stereotypically, the judge in England and Wales is male and is of a particular social standing and educational background. Interestingly, Lady Hale has observed that the wearing of wigs “humanises us all into men. They deny us our femaleness let alone our femininity.”[1]

Women in France were admitted to the legal profession by law in 1900, but they were prohibited from ascending to the judiciary until 1946. Once they entered the profession, female lawyers demanded the right to judge and challenged gender discrimination in employment. The legislative efforts to secure women’s judicial eligibility were halted by the perception of women’s social and cultural inferiority and legal inequality.

II.   The current situation

The Council of Europe, in its report on European judicial systems[2], has pinpointed that the UK judicial system is well behind the rest of Europe with regards to gender balance. The report by the Council of Europe shows that women make up only 25% of judges in England and Wales. Nonetheless, significant reforms of the processes, procedures, and criteria for appointment have been implemented in the UK. Most of these reforms are based on equal opportunities measures. It is axiomatic for contemporary democracies to be meritocratic, however it has been revealed that this is not always the case. By introducing the equal merit (tie breaker) provision, this allows diversity to be taken into account when there are two applicants of equal ability since the one from a less well-represented minority should be given the position.

Lady Hale has become the most senior female judge in British legal history with her appointment as deputy president of the UK’s supreme court. Lady Hale joined the Law Lords in 2004 and has been an outspoken advocate for improving diversity on the bench. Interestingly, she is the only woman among the 12 Supreme Court justices. Whilst the UK Supreme Court has only one woman, interestingly in the US Supreme Court three of the nine judges are women.

III.   Why do we need female judges?

A strongly founded argument for greater representation in the United States was that female judges would indubitably “improve the legal status of women”, a vision that was not fully achieved.[3] Moreover, a heavily criticised argument in favour of women judges is that of Gilligan[4]. Her thesis is founded on the basis that men and women have different moral values. The suggestion here is that women judges would attain a different ratio decidendi to that of their male counterparts. This not only reinforces that men have a more rights-based approach but seems to further reiterate that certain ideals are perceived as unique to women. Is it logical, however, to allege that women are more compassionate than men?

The “difference of voice” argument has certain inherent flaws and it is thus evident why numerous scholars have rejected it. The two dominant arguments today are equality of opportunity and the fact that the judiciary should be reflective of society. It is important to note that today inequality on the bench consequently undermines the public’s confidence in the courts. Furthermore, it is imperative for the judiciary to reflect the society it serves. Law should not be reduced to the decisional outcome of a judgment, nor should the outcome differ if the judge happens to be male or female. This would weaken the concept of justice and the judicial system. We need both male and female judges; it is a prerequisite to the correct functioning of the courts. However, a lack of women in judicial authority will undoubtedly damage the UK legal system.

Christina AVGOUSTI