Gender and the International Judge: Towards a Transformative Equality Approach

There is a dearth of women judges sitting on international courts and tribunals. This contribution pays attention to the question of why judicial gender matters. Demonstrating that sex-based differences play an important part in judging has challenged even the most committed essentialists. Legitimacy-based arguments are deemed inadequate in so far as they fail to address the structures of power and discrimination that create exclusions. In this contribution, I argue that the dearth of women judges matters because it is both symptom and cause of the highly gendered way in which international law and international institutions operate. Drawing on Erika Rackley’s early work in which metaphor is used to reveal the gendered nature of the judicial role, I call forth the idea of the totemic judge of international law whose male gender is rendered invisible and unremarked and who functions to enrobe the gendered norms and institutions of international law. The female judge, conversely, is a disruptive force as her very presence places gender in the frame. Drawing on accounts from international courts and from the Feminist Judgments in International Law project, this contribution concludes that an approach to judging that acknowledges and challenges structures of power – including gender – contains transformative potential. However, it is potential that must find a way to operate within significant institutional and normative constraints.