The covid-19 pandemic has increased violence and discrimination against women based on gender and their professional development. It is a known fact that is established in countless international reports. This is in addition to old forms of discrimination and exclusion, however. Some of which are extreme, such as those prevalent – again! – in Afghanistan. But the most widespread is, at times, subtle and does not always show up in blatant exclusion rules like those imposed by the Taliban. It is presented with practices in which women, for example, tend to find it difficult to access positions in the high courts. What is called “the glass ceiling”, in a context in which there is no formal prohibition.
A series of well-known international principles and norms establish both equality between men and women and the prohibition of discrimination and violence against women, based on gender. However, there are no specific provisions on judges and prosecutors that include explicit general principles on the need to guarantee gender equality within the judiciary, the prosecution or at different levels of the professional career. And in this there is a problem that is transversal to the judicial systems in different countries in which, in theory at least, there is no discrimination against women.
However, certain practices tend to prevail that end up resulting in discriminatory situations. Three different situations stand out in this, which combine and provide feedback.
In the first place, the real – and positive – fact that in recent decades women tend to occupy, in general, a growing presence in the judicial function, including prosecutors.
Europe is in the lead, with an average of 54%, followed by the whole of the American continent with 51%. These data contrast, however, with those of Oceania, Africa and Asia where women represent 31%, 30% and 29% of the total, respectively. In Latin America, while Argentina has 30% female judges and 26% female attorneys and prosecutors, Peru has 42% female judges and in Colombia 43%. In Uruguay, 81% of prosecutors are women.
Secondly, the above qualifies the fact that gender prejudices and stereotypes continue to affect women – especially the youngest – since they are usually assigned jurisdictions considered “social”. This is a general trend that has few exceptions. This results in the under-presence of women in certain functions of the justice systems for the benefit of being assigned to family, labor or other “social” courts, considering that they are more suitable for them.
Third, that working conditions and, especially, promotion within judicial and prosecutorial careers, which at first glance might seem reasonable, have a different impact on those women with less economic capacity or who have to combine their activity work with the care of the family and the home. For example, the requirement of a higher education beyond the bachelor’s degree or special training courses and in addition to the regular work schedule, in order to be promoted to the highest positions, requires additional financial resources and time, which tends to be more difficult for women to dispose of.
Thus, for women with family responsibilities it is especially difficult to have the time necessary to meet certain academic requirements, especially for promotions and promotions. In some places, such as Peru, a postgraduate degree is required to advance in the judicial or prosecutorial career, which, incidentally, is not necessarily synonymous with professional quality. In practice, this can be an exclusion factor for women who, in many cases, have not had the extra time after working hours or the resources to take these courses, which are expensive in several countries.
Thus, women run into the so-called “glass ceiling”, which is nothing more than that invisible but insurmountable barrier that prevents minorities and women from ascending to the upper echelons of the judicial system, regardless of their qualifications. or achievements. The lack or weakness of explicit and sustained public policies in this field, of political will or of weighty institutions within the State in charge of promoting them, has a decisive impact on this.
The magistrates in Supreme Courts of eighteen Latin American countries represented, at the end of 2019, an average of 27.5%. There were eight countries below 30% (Argentina, Bolivia, Brazil, Colombia, Costa Rica, Panama, Dominican Republic and Peru), four countries between 30% and 40% (Chile, El Salvador, Honduras and Mexico), two countries between 40% and 50% (Guatemala and Uruguay) and one above 50% (Ecuador). In the case of Guatemala, out of a total of 57 presidents (1839-2017), only two women (3.5%) have presided over this high judicial body. In Peru, it was not until 2021 that the first president of the Judiciary was elected in 196 years within an encouraging context in which both the Office of the Prosecutor of the Nation and the presidency of the Constitutional Court also count highly qualified women performing these functions.
States must apply, without pretext or distinction, international standards regarding access and promotion of women in the judicial and prosecutorial career to ensure substantive equality with a gender and human rights perspective. In this direction, they must guarantee that measures to combat gender discrimination and achieve equal access for women to the judicial and fiscal system include policies and norms of affirmative measures to overcome the identified barriers. So there are lights and shadows, but within it many critical issues to be resolved.
What seems to be lacking are decided bets from the political power. The UN Human Rights Committee has estimated that to guarantee equal access, the criteria and processes for appointment, promotion, suspension and dismissal must be objective and reasonable AND that, in some cases, affirmative measures may be necessary to guarantee equal access for all people to public service. There is much to specify and develop in this.
For these purposes, for example, the establishment of quotas in the administration of justice is an effective and necessary tool when reversing historical trends such as the predominance of men in these sectors. The adoption of quotas, which has meant progress for the incorporation of women in all sectors of the State, in general, and in judicial and prosecutorial careers, in particular, should be considered a policy to be applied.
Subscribe here to the newsletter from EL PAÍS América and receive all the informative keys of the current situation of the region
Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.