IWD: Balancing the Bench – Why We Urgently Need More Female Judges

5 March 2019

The judicial profession in the UK is lagging behind on the journey towards gender equality. A 2016 study by the Council of Europe found that only 30% of professional judges in England and Wales were women. Only two Member States had worse records of employing female judges than the three constituent legal systems of the United Kingdom (England and Wales, Scotland and Northern Ireland). This blog looks at the importance of balancing the bench, reflects on the achievements of pioneering female judges and considers what can be and has been done to ensure more women enter the ranks of the judiciary.

The legal philosopher Ronald Dworkin created a mythical judge, Judge Hercules, who could reason towards the one right answer to any legal question. Even if we accept Dworkin’s premise that there is a single right answer, no human judge will always reach Hercules’ lofty standards and find it. Human experience and bias (however unconscious) will inevitably factor into judicial decision making and it is therefore important to be able to draw from a wide range of experience when reasoning in decisions. This is particularly true when adjudicating on family and human rights issues. It might be difficult to understand what amounts to inhuman and degrading treatment, or a disproportionate interference in private and family life if you have not experienced or felt threatened by those treatments or interferences yourself. Lady Hale, whose work we look at in more detail below has emphasised the importance of “diversity of background and experience“ on the bench in interviews with the media and has gone as far as to express disquiet about the composition of the UK Supreme Court in a judgment. In Radmacher (formerly Granatino) v Granatino [2010] the Court was asked to decide on the enforceability of ante-nuptial agreements. The object of such agreements, Lady Hale explained, was “to deny the economically weaker spouse the provision to which she – it is usually although by no means invariably she – would otherwise be entitled.” There was therefore “a gender dimension to the issue which some may think ill-suited to decision by a court consisting of eight men and one woman”. As well as improving the quality of our law by bringing a wider range of experience to judicial reasoning, a more diverse bench would improve the public perception of it. As Lady Hale explained, the public need to “look at the judges and say ‘They are our judges’,” rather than seeing them as “beings from another planet”.

The UK’s ’Queen of Law’ Lady Hale was the first female Law Commissioner, the only woman ever to be appointed as a Law Lord, the first female Justice of the UK Supreme Court and that Court’s first female President. She has been able to raise issues in the UK’s highest court that may not have come to the attention of an all-male bench and empathise in a way that such a bench could not. In R(Limbuela) v SSHD, a successful challenge to the government’s provision of support for applicants for asylum, Lady Hale highlighted the suffering a woman would face if they were expected to live indefinitely in a London car park (as one of the male applicants did), “without access to the basic sanitary products which any woman of that age needs and exposed to the risks which any defenceless woman faces on the streets at night”. In R(Gentle) v Prime Minister & Ors she was able to speak mother to mother with two women whose sons had died in the Iraq war and who wanted an inquiry to look into the legality of that war. Though ultimately finding against them, she stated, “Not surprisingly, the mothers of these young men wanted to know how and why their sons had died… If my child had died in this way, that is exactly what I would want.” Despite the clear benefits of a female voice at the top of the judiciary it took over 13 years for another woman to be appointed as a Justice of the UK Supreme Court, and there was not a female majority hearing a UK Supreme Court case until October 2018.

The lack of gender parity within the judiciary is not an issue which only affects the U.K, but is also evident across the pond in the U.S. As part of our recognition of International Women’s Day this year, Kingsley Napley are holding an internal film screening of ‘RBG’, which is an incredibly engaging documentary about U.S Supreme Court Justice Ruth Bader Ginsberg (sometimes affectionately referred to as ‘The Notorious RBG’) which does an excellent job of highlighting the way in which Justice Ginsberg uses her voice on the bench to progress women’s equality in the U.S.

As an attorney, Justice Ginsberg appeared before the U.S Supreme Court six times to represent her clients. When President Bill Clinton appointed her to the U.S Supreme Court in 1993, she was the second female Justice ever to be appointed and she remains there today, one of three women on the bench of nine. In the ‘RBG’ documentary, she is credited with having “changed the way the world is for American women” and many of Justice Ginsberg’s opinions and dissents are considered to have led to real changes in legislation and helped to transform the way sex discrimination cases are dealt with in the U.S.

United States v Virginia (1996)

The Virginia Military Institute (VMI) was an exclusively male public higher education institution and in 1996, the U.S. brought a case against Virginia and VMI on the basis that its admissions policy was unconstitutional because it violated the 14th amendment’s equal protection clause. The VMI proposed to create a female only institute for women in leadership (called the “VWIL”) to address the issue but the U.S. appealed to the Supreme Court who agreed by a 7-1 decision, with a majority opinion from Justice Ginsberg, that the VMI’s male only admissions policy was unconstitutional because the VMI failed to provide an “exceedingly persuasive justification” for it and the VMIL could not offer women the same benefits as VMI offered men. Justice Ginsberg noted in her judgement that “all gender based classifications today” should be evaluated with “heightened scrutiny” and with that, the Court essentially struck down any law which (as Justice Ginsberg wrote) “denies women, simply because they are women,…equal opportunity to aspire, achieve…and contribute to society”.        

Ledbetter v Goodyear Tire and Rubber Company (2007)

Lilly Ledbetter sued Goodyear Tire for gender discrimination on the basis that during the course of her 19 year career with the company, she had been consistently underpaid compared to her male counterparts. In 1997, as the only female manager, she was earning less than the lowest paid man in the department.  A lower court initially found in favour of Ledbetter but after an appeal by Goodyear the Circuit Court reversed the decision and dismissed Ledbetter’s complaint on the basis that she was outside the 180 day time limit for bringing a pay discrimination claim. The Supreme Court upheld the Circuit Court’s finding that the discrimination claim was time-barred. In her dissent (which, unusually, she read from the bench), Justice Ginsberg claimed that the majority’s ruling was out of tune with the realities of wage discrimination and suggested that “the Legislature may act to correct the Court’s parsimonious reading of Title VII [of the Civil Rights Act 1964]”.

In 2009, the Lilly Ledbetter Fair Pay Act was the first bill to be signed into law by President Obama. It stated that the 180 day time limit for filing an equal pay claim re-sets with each new pay-check, directly addressing the reasoning behind the Supreme Court’s decision in the Ledbetter case, and aimed to reflect the realities of gender pay discrimination in the work place. 

Legal Idols

The attention and media coverage which Justice Ginsberg and Baroness Hale attract in their respective jurisdictions has meant that they have found themselves being hailed almost as legal superstars or pop culture icons. This is evident in Justice Ginsberg’s nickname as the ‘Notorious RBG’ (for those unsure of the cultural reference, perhaps re-visit your 90’s East Coast rap collection) and even Baroness Hale has been referred to as “the Beyoncé of the legal world”. In many ways, the attention given to their incredible efforts towards improving women’s rights is a wonderfully inspirational message.  However, it could also be an indication that, to an extent, Justice Ginsberg and Baroness Hale are simply the exceptions that continue to prove the rule.       

It has been 100 years since women were permitted to enter the legal profession in the UK with the passing of the Sex Disqualification (Removal) Act in 1919, and yet women continue to remain woefully underrepresented within the judiciary in the UK. As set out above, just 30% of our court judges are female and senior roles show lower representation than less senior roles. Whilst the Judicial Diversity Committee recognises that there is still more to be done and they have published a broad action plan to address these issues, the pace of change is simply too slow and there is still a long way to go before we properly balance the bench in the U.K., which is why it remains important to raise this issue within the context of International Women’s Day, particularly when the theme is ‘balance for better’.

The changes that Justice Ginsberg and Baroness Hale have helped to bring about in terms of gender equality across the legal landscape in the U.S and the U.K demonstrate that female voices within the judiciary can make a real difference to women’s rights. Here in the U.K., we have a precedent based common law system with a long history of male dominated jurisprudence and there is still a presence of frankly sexist opinion among some male judges. Clearly an urgent, pro-active approach to ‘balancing the bench’ should be a real and genuine priority for our judiciary.

IWD is an opportunity to build on the progress that has been made towards gender parity and to celebrate the achievements of women on a global scale. This year, #BalanceforBetter.

Look back at our insights from International Women's Day 2019

Look back at our insights from International Women's Day 2019

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