When The Judge Is A Woman

Redressing the historical and structural male domination of judicial systems requires that we consider the impact of gender on judges, citizens, and the text of law itself. Reflections on the conversations at the ‘le juge est une femme’ conference at the Université libre de Bruxelles.

Tunisian judges, magistrates and lawyers demonstrate for their independence.
(Photo: Demotix)

By Heather Mcrobie
What does it mean when the judge is a woman?  The question raised at the Université libre de Bruxelles looks at the implications for the judicial system – and what we consider justice – when the gendered structures and assumptions built into it are taken apart.  In reply to the question, legal scholars and gender theory experts explored the impact of gender on judges themselves, as well as for citizens encountering the justice system.

For all their assertions of impartiality and fairness, the concepts that underpin law – and frame the ways we think about justice–  are laced with gendered notions, from the evolution of the symbol of ‘Lady Justice’ from the goddess Themis to the Enlightenment-era reworking of the relationship between citizen, state and the law through assertions of rights of ‘man’.  And judicial systems worldwide are male-dominated in at least two senses: firstly, judges who identify as male make up the majority of judges in national formal judicial systems, with women historically underrepresented in the judicial profession; secondly, as feminist legal scholars and socio-legal scholars have argued, modern justice systems emerged out of patriarchal conceptions of justice, and as such they privilege the male experience and qualities associated with masculinity.  Gendered ideas of who constitutes the ideal citizen pepper the historical emergence of our modern concepts of justice throughout the Enlightenment, whilst nineteenth-century elevations of the idea of property as a cornerstone of legal status work in tandem with historically patriarchal ideas of property.  Traces of these ideas live on in our current realities through their continued presence in the bloodstream of legal bodies.

Justice Elena Kagan
Began serving on the U.S. Supreme Court
August 7, 2010.
(Photo: Matthew W. Hutchins)

Feminist legal theorists have analysed the tension inherent in the fact that the historically patriarchal nature of legal systems entails the privileging of the experiences of some citizens over others –contrary to the aims of a judicial system to treat all citizens as equal before the law.  Francoise Tulkens, looking at the argument of gender diversity as a condition of legitimacy for the international courts, led a discussion at the le juge est une femmeconference on how feminist concern for the gendered language of international human rights law – from the Enlightenment framing of the ‘rights of man’ – is not mere hair-splitting or contrarism, by living heritage of inequality that plays itself out afresh each time it is used in international legal systems as they operate today.

Keeping the Enlightenment language of ‘man’ in international courts contains within it the problematic assertion of who is considered the ‘ideal’ in the court’s imagination – an issue which becomes further warped by the international nature of these courts, which in other senses entails a radical assertion of the law’s universality.

Tulkens’ analysis goes to the fundamentals of concepts of justice, the law, and the relationship between the individual and a legal system.  But there are more prosaic concerns closer to home, as highlighted by the new empirical research on the ‘gendered experience’ of the judicial system.  If further evidence was needed that judicial systems still privilege male and masculine identities and experiences, academics from socio-legal studies to gender studies have compiled compelling evidence from studies using a number of different methodologies to show how systems with both common law and civil law heritages structurally advantage men.  Judith Resnik of Yale Law School presented findings on the correlationbetween the relative absence of female judges in higher courts and perceptions of who is considered capable of deciding the most significant and complex cases while Pascale Vielle of the Universite Catholique de Louvain presented a comprehensive overview of the gender ratios of Belgian judges, showing the gap between promises for a gender-diverse judiciary and the slow-moving steps of genuine progress in this area.

Justice Sonia Sotomayor accepts the nomination to the
U.S. Supreme Court by
President Obama, May 26, 2009.
(Photo: Medill DC)

In some sense, this is an analytical exercise that can be performed of many professions: highlighting that men are still structurally dominant within the profession, both in terms of holding more high-level positions, in terms of their stronger informal networks, and in terms of how workplace cultures privilege their experiences, from gendered ‘workplace bonding’ initiatives which may alienate women to the lack of recognition of different working-hour patterns which disproportionately impact on those who are caring for young children.   The same could be said of many other professions, of course.  But there is the additional layer, in the case of the justice system, that it is the sphere that deals directly with justice, and equality – surely if any part of public life should be gender-equal, it is the justice system?

There are inherent rhetorical and substantive tensions in making the case for diverse judiciaries (which, in many contexts, would entail promoting more female judges, given their underrepresentation in the higher courts).  In a comparative study on the experiences of judges in several countries including South Africa, Australia and the United Kingdom, Laura Hilly addressed the issue of ‘experienced justice’, the gendered experiences of judges, building a picture from analysis of extensive interviews with judges how they perceived the impact their gender had on their experience of judging.  The analysis highlights the tension in advocating for gender-equal justice systems – the judges repeatedly expressed their concern with ‘identity-determinism’, or the idea that ‘being a woman’ dictated how they would judge, given how this idea stood at odds with their legal training that judges hold a position of impartiality.

The unique case of the justice system for gender equality
This discomfort expressed by the judges Hilly interviewed highlights the significance of gender equality in the judiciary as well as the importance of framing the issue of gender equality in ways that speak to the unique nature of the justice system.  The best case scenario, as scholar Sally Kenney’s work highlights, is that a gender-diverse judiciary corrects the biased false neutrality latent in justice systems that were built under, and reflect, patriarchal values.  The recurring question in new scholarly analysis on gender and the justice system – ‘well, what difference does it make whether the judge is a woman or a man?’ – itself challenges the idea that judicial systems are ‘neutral’ and impartial.

For whilst it may be uncomfortable to acknowledge that earlier bodies of law would not be considered ‘just’ by the standards of feminist legal theory it is clear that contemporary justice systems did develop in tandem, and intertwined with, patriarchal norms.  In other words, the concern is not that there should be more female judges so they can judge from their standpoint of ‘femaleness’, but that a gender-equal judiciary would neutralise the problems – for justice, for fairness and for a society – that follow when one gender-group dominatesthe system and determines what is considered to be ‘just’.  Legal scholars looking at common law legal traditions highlight the historical importance of the idea of trial by jury and the role of non-professional judges as precedence for the idea that the justice system must reflect society, in its plurality, if it is to be just.  And achieving this plurality would, in practice, mean taking measures to reverse the historical male dominance of the higher echelons of the judiciary.

Justice Ruth Bader Ginsburg (center)  began serving
on the U.S. Supreme Court August 10, 1993.
(Photo: Ed Demaria/Medill News Service)

With feminist legal theory having built the case for the imperative of a gender-diverse and gender-sensitive judiciary in order for the system as a whole to be just, new empirical research addresses the task ahead of how to undo the patriarchal privileges of justice systems.  Marie-Claire Belleau and Rebecca Johnson of the University of Laval and University of Victoria in Canada presented an analysis of how the Canadian judiciary eventually developed moregender-equal representation, through removing the de facto barriers in terms of working practices and the pools from which judges were traditionally chosen in order to mitigate against the obstacles preventing women from rising as judges.

Similarly, Ulrike Schultz looked at ‘equal opportunities’ and women’s advancement in Germany’s judiciary as a kind of employment-sector analysis treating the judiciary like any other bureaucracy or company.  And when a judicial system is looked at in this way, the conclusion is that more concrete measures must be taken to mitigate against the historical disadvantages and de facto barriers to equal opportunities that prevent women from rising fairly through the system.  But the wider body of work developing on gender and the judiciary makes a more ambitious assertion: justice systems must be gender-equal, firstly on the basis that gender-equality and diversity is inherently good in a public organisation, and secondly – crucially – because the justice system, particularly, must reflect and be responsive to all those it serves. 

Reprinted with permission from openDemocracy.

"Anti-Rape" Panties Has Some People Pissed Off: Does Product Trivialize Rape?

So-called 'Anti-Rape' panties are made of 'indestructible material' around the thighs, waist, and crotch. Will they discourage rape or encourage even more violence? Or are they just another Jimmy Kimmel prank?

High tech anti-rape panties are pissing people off, despite best intentions (via Pando Daily)

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What's The 'Real Scandal' Behind "SCANDAL?": It's Based On the Real Life Story of Someone Who Did 'Dirty Work' for Right-Wing Republicans

Kerry Washington: Star of  "SCANDAL."  (Photo: David Shankbone)

Currently all the rage in the Black community, the Kerry Washington political intrigue program “SCANDAL” is about a Black Woman whose job is to help Washington DC politicos through damaging and embarrassing dilemmas...The result is a kind of female Obama Effect, shrewdly creating a sense of collective racial necessity for placing Brown faces in high imperial places. The most oppressed segment of American society is encouraged to fantasize about becoming the most effective agents of the same empire that is destroying them. Very shrewd indeed.

What’s most interesting about “SCANDAL” is that it’s based on the real life story of a Black woman who got her political start in the Reagan administration and played a key role in getting Clarence Thomas confirmed to the U.S. Supreme Court despite Anita Hill’s charges of sexual harassment. She also helped clean things up for the Republicans during the Iran Contra Scandal. As recently as May of this year, the real life character behind “SCANDAL” represented Paula Deen, the White TV Cooking Show maven who outraged Black America for allegedly admitting she fantasized about “owning slaves”.

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Race, Feminism and Patriarchy in Pop Culture/Music: The Difference Between Rihanna and Miley Cyrus

Can conversations about women in pop move beyond a binary of agency or exploitation?

By Reni Eddo-Lodge
The feminist debate after Miley Cyrus’ VMA performance rarely touched upon the issue of race.  A comparison with Rihanna’s ‘Pour It Up’ video illuminates the dominant tropes being played out in pop culture

Photo: Sean MacEntee

Sinead O’Connor and Amanda Palmer have swapped open letters, concerned about the future of Miley Cyrus. Between feminist cries of slut shaming, paternalistic concerns of exploitation, and sex positive insistencies of agency, the conversation spirals round with no end in sight. Both Palmer and O’Connor’s letters do not deem race worthy of including in their analyses of Cyrus’ behavior. But why would they? Solidarity is, as always, for white women.

There has been much written about Miley Cyrus' image change. She is not the first white girl to adorn herself in mainstream perceptions of blackness like a Halloween costume, reveling in actions tantamount to the modern day black face. Before her, there was Kreayshawn. Iggy Azalea simmers in the background, too. When Iggy publicly claimed Miley stole twerking from her, irony curled up in a ball and died.

Photo: StarblindKing

Thus, history is rewritten. Twerking’s pop culture reference morphs into whiteness – lacking legitimacy until a famous white person co-opts it for themselves. Elvis was perhaps the most famous example of this phenomenon. Eminem openly rapped about it. In his White Rapper FAQ, comedian Aamerr Rahman writes ‘benevolent white people […] who want to forcibly colonize, appropriate and redefine other people’s culture and history are how racism and wars started.’ In her essay Can the White Girl Twerk, Ayesha A. Siddiqui defines this as ‘racial drag’.

Miley Cyrus’ VMA performance was the cumulative effect of her continued work toward this point. The black women backing dancers who surrounded her performance were difficult to distinguish.  Their eyes were blacked out with sunglasses, but then, no one was looking at their faces. Their bodies were voluptuous- wide hips, thick thighs- a stark contrast to the former Disney star. Every so often, Miley would stop to slap or motorboat their flesh. They were relegated to the side lines so that she could shine.

There was outcry when Miley’s VMA performance partner Robin Thicke used almost naked white and light skinned black women in the background of his latest pop video, Blurred Lines. When it comes to her backing dancers, Miley’s objectifying tactics are not dissimilar.

White women – conventionally attractive white women with access to class privilege – are the "housecats of society." as Chelsea Fagan succinctly puts it. Subject to gendered oppression, of course. But ‘so much [of this] oppression stems from condescension, infantilisation, and over protection.’ What both Fagan and Siddiqui discuss frankly is the perceived purity in straight, white female youth.

Alongside a new found penchant for nudity, Miley considers the perceived hyper-sexuality of black female flesh intoxicating enough to attempt to emulate. She imitates an ugly colonial narrative that stems from a violent past. Our waists, our hips and our thighs are not inherently sexual once we’re released from the restrictions of the male gaze, or the stranglehold of white dominated cultural appropriation.

Photo: Eva Rinaldi

 At the polar opposite of pure white womanhood is blackness and the implications that come with it. Suspicion, aggression, and hyper sexualisation - each adjective is gendered. Like the trope of pure white womanhood, they are rigid and restrictive. Against a backdrop of structural racism and white supremacy, white women indulging in this perceived state of blackness is the ultimate rebellion.

Whilst Miley Cyrus rapidly becomes the pop culture reference point for twerking, Rihanna’s ‘Pour it Up’ video snatches the reference back. The comparison between the two, then, is where much maligned black female flesh fits into performance - if it does at all.

Maya Angelou writes it well. ‘Does my sexiness upset you? / Does it come as a surprise / That I dance like I've got diamonds / At the meeting of my thighs?’

One could argue it’s a subtle difference. But in a video co-directed by the artist, black women are released from the margins, and are taking center stage.  Whilst Miley uses black female flesh as props to make a point, Rihanna takes the position of both client and dancer. Fur coat, shining rocks and dollar bills all signify unbridled power. A pick up artist might call it peacocking. There is no male gaze on screen to lap up the scenes.

What’s prized as aspirational or desirable in white women’s bodies is not the same as black women’s bodies. We’re not represented in many mainstream representations of beauty. Black female artists, then, who opt to twerk center stage with pride, are making a statement. With limited access to the structure of pure white womanhood, we operate within racialized respectability politics. Described well by Tamara Winfrey Harris in Bitch Magazine, respectability politics require black women in the public eye ‘to be noble examples of black excellence. To be better. To be respectable’.

Photo: Julia Stavale

Against this backdrop, Rihanna's attitude can be read as an act of radical self-love. Black women’s bodies, in her limited sphere, are free from the patriarchal construction of the male artist. Whilst too many mainstream representations of sex positivity have sorely lacked any analysis of race, its central ethos has encouraged women to explore and celebrate many aspects of their sexuality free from patriarchal judgement and barriers. Why then, isn’t Rihanna’s twerking celebrated as sex positive agency? Where are the defence barriers insisting that criticism of her is rooted in slut shaming?

Pop music has a long way to go before women can step onto a stage without worrying about their looks. We are too far down the slippery slope of trading on objectification for any conventionally attractive female pop star to totally reject the rules of the game. It would be disingenuous to suggest that liberation can be found in expressions of agency alone, but it’s clear that the conversation about must stretch beyond agency or exploitation.

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About the author
Reni Eddo-Lodge is a writer based in London. She campaigns for a living and is interested in social justice. Her writing achieved a high commendation from Channel 4's Best Young Blogger competition back in 2010, and she blogs here.

Reprinted with permission from openDemocracy.