18/01/2021

The parity illusion in the Justice system

Discrimination against women and the gender gap has remained stable in Justice and the Judicial Power in our country at least since 2011, when the Supreme Court of Justice began to prepare the so-called Gender Map of the Argentine Justice[1]. It constitutes the best empirical evidence that, despite the progress derived from feminist demands, women in the Judiciary and the Magistracy continue suffering structural disadvantages to access higher positions in the judicial establishment, where they remain systematically and historically excluded from.

Although the female participation in decision-making spaces has improved, regional averages are below 30%. Within the highest courts of Justice in Latin America it has reached the number of 32.1% in 2018. Nevertheless, in Argentina, despite the fact that women represent around 61% of the positions at the civil service and administrative staff level, their presence is reduced to 44% among magistrates, defenders and prosecutors, and is even lower among the highest judicial authorities, where they only occupy 28% of the positions.

In order to achieve the inclusion of more women at all levels of the administration of justice, a few possible mechanisms include gender quotas, the banning of same-sex integration of the different judicial organs, and/or the imposition of the parity principle -which has been scarcely regulated in some jurisdictions. In this sense, Resolution 266/2019 of the Council of the Magistracy of the Argentine Nation established the mandatory participation of women in the interview process for applicants and the incorporation of at least one woman in the candidates’ list.

Despite the undoubted progress that this implies regarding women's rights, in recent conformations of triads of judges and magistrates it has not been applied, under the argument that the rules that introduce parity criteria should be applied if and only if the announcement of the contests has been after this regulatory amendment. This interpretation does not conform to the prescription of article 7.1 of the Civil and Commercial Code of the Argentine Nation, which establishes that, from its entry into force, laws must be applied with the maximum possible extension on the future effects of past relationships and in stages of its development not yet completed precisely because the new legislation allows progress on the previous rule of law, surpassing it in the achievement of substantive justice. Therefore, pending acts, relationships or situations -verbatim the final conformation of the triples- must be subject to the new rules, which must have an immediate effect on them.

On the other hand, beyond the quotas or formal parity, a deeper debate is still pending on which are the determinations and structural obstacles to real equality in the Justice. From John Stuart Mill to the most current critical feminisms, the demand of women to obtain a public and egalitarian position with respect to that of men unmasks and challenges both the place attributed to women in the domestic and in the family sphere. Therefore, to understand this exclusion and to put an end to gender inequality, the mere modification of regulations or the application of the idea of ​​equality as non-discrimination or as the absence of arbitrary treatment during the selection process is not satisfactory.

In this sense it seems essential to analyze whether the public contest system, as implemented today, is effectively aimed at achieving the best possible merit selection under equal conditions, or whether, on the contrary, it would be necessary to use more objective methods of evaluation, or to set a true judicial career, or to shorten its duration, or to carry out broader calls, or calls on dates away from holidays or vacation periods, and so on. It would also be necessary to review the application, examination, shortlist and selection of candidates mechanisms and comprehensively evaluate them from an intersectional and intercultural gender perspective that allows for the detection of economic, geographical, cultural and symbolic factors that, among others, hinder the access of women to decision-making positions and reproduce gender biases in evaluators and juries.

What is even more important is to reflect on the power, subjection and subordination relationships inherent to the patriarchal judicial system of privileges that affect women and men in this sector, an aspect in which the associations of female judges and magistrates, professional associations and Justice gender issues observatories find a common axis on, on the one hand to gain ground on the public agenda and, on the other, to deepen the reflection on the situations or conditions that are at the root of this structural disadvantage.

These types of bodies could cooperate to strongly contribute to the design of programs, research, and monitoring and supervision devices that provide innovative ideas on how to create better conditions for the full participation of women and other structurally disadvantaged groups in the Justice, to identify the causes of their self-exclusion from the competition for higher positions, to monitor the achievements and challenges they face in exercising their rights to participation and access to public office. Also, to study how identities are constructed and managed within the judicial system, or which are the affirmative actions and the to-implement mechanisms in order to strengthen their main role, on women leadership and empowerment to promote their participation in contests; on how to improve the female conditions within the judicial powers; on which are the sexist practices and culture that pervade the judiciary and on how to modify them; on how to guarantee the sex alternation in the highest-ranking single-person positions; etc.

In times of Covid-19, when one every four women in high-level positions is considering reducing her job responsibilities, taking leave or leaving the workforce altogether due to caregiving responsibilities and unpaid work overload at home that fall mainly on them, it is not possible to neglect the interrelation between the public and private spheres, the persistence of the sexual division of labor and the unfair social organization of care (ECLAC, 2017), all of which has become one of the main political and economic problems that needs to be addressed.

Reviewing myths and illusions, for instance that of a level-playing field on women's starting point, is a pressing need in order to overcome patriarchal structural inequalities and to prevent society from continuing to be, as Carole Pateman described, a succession of men's clubs of which women are excluded from, or where we only participate as assistants in positions of lesser hierarchy or subordinates within the Judicial Power.

Sandra Verónica Guagnino is a Chamber Prosecutor specialized in Gender Violence at the Public Prosecutor's Office of the City of Buenos Aires and a founding member of the Association of Women Judges of Argentina.

[1] Source: OM/CSJN. Gender map of the Argentine Justice. Report edition 2019.