By Tobias Thienel
The ECtHR yesterday gave an Advisory Opinion on a question related to the equal representation of the genders on its Bench. I have already commented on that. But in another (contentious) case decided yesterday, one of the judges (pictured) raised another issue of fairness between, or rather to, the sexes, which I would not want to keep from our readers. I will let the Judge speak for himself; the excerpt is from the ‘Personal Conclusion’ of the Partly Dissenting Opinion of Judge Borrego Borrego in Kafkaris v. Cyprus (para. 13):
I shall conclude my opinion with one final observation: in the judgment, from start to finish, all those who are mentioned are given the appropriate designation for their sex, with the exception of the judges and Registrar of the Grand Chamber. I object to the presentation of judges as sexually neutral individuals in a society made up of men and women. The distinction between the two sexes in relation to judges is expressly acknowledged in the Rules of Court, since Rule 25 ยง 2 requires the Court’s composition to be gender balanced. It is also a matter of concern to the Parliamentary Assembly of the Council of Europe, which advocates the presence of women on all lists of candidates for posts as judges of the Court. This has prompted the Committee of Ministers to request an advisory opinion. So the opinion on the sex of candidates for posts as judges will be given by judges who are presented to the public as sexually neutral. Any comment would, to my mind, be superfluous. But to avoid any confusion, I wish to point out that I belong to the male sex.
Any such confusion tends to subside fairly quickly after looking at this page on the Court’s website. (Judge Borrego Borrego is no longer featured there, having left the Court, which is why I provide his picture here). But seriously, it is a fair sentiment that the Judge expresses there (although the fact that the first names of the judges are given in the list of members of the Chamber seems to go a long way towards meeting his concerns). I have a feeling, however, that it is more relevant to the French versions of the Court’s judgments (in which language the Judge has penned his opinion). In English, the word ‘Judge’ may be used as a title, replacing ‘Mr’, ‘Ms’ and the like with a gender-neutral designation. That is hardly remarkable; indeed, the same applies to ‘Dr’ or ‘Prof’. Unlike, for example, in German, it is just not possible to say ‘Mr Dr Smith’ (‘Herr Dr. Schmidt‘) or ‘Ms Dr Smith’ (‘Frau Dr. Schmidt‘), or indeed ‘Mr Judge Borrego Borrego’ (‘Herr Richter Borrego Borrego‘) or ‘Ms Judge Tulkens’ (‘Frau Richterin Tulkens‘). (It is, admittedly, possible to say ‘Mr Justice Smith’ and ‘Mrs Justice Smith’, as in the English High Court, but that is not a likely designation in an international court. It is also imaginable that the list of judges might give their names as ‘Mr Borrego Borrego’ etc., followed by the word ‘judges’ at the end of the list. That would simply add the gender designations to today’s form of the list. But that might still not be welcomed by all, as ‘Mr’ etc. just might be taken to imply the – unlikely – absence of other titles.) In French, it is absolutely permissible to say ‘M. le Juge Koroma‘ or ‘Mme. le Juge Higgins‘, as the ICJ does (see, e.g., this and this opinion). Judge Borrego Borrego certainly cannot be faulted for preferring that form of reference (having regard to the fact that the first names, adverted to above, may not be of much help due to language barriers or other problems). But that is hardly the most serious issue even in the field of equality between the sexes in the Court.
The kind of issues brought up here, while appearing relatively trivial, fall into an area of feminist theory that is much debated. That is: do we celebrate the gender differences, or do we declare ourselves the same as men? I personally believe that it is not as simple as choosing one road at the fork in the road and following that direction.
Take the example of women in the legal profession. Law is traditionally a boys’ club. Women in many developed countries make up over 50% of law graduates now, but when you look at higher legal positions (partners in firms, judges, etc), the numbers of women are far below 50%. Women are relegated to the “warm and fuzzy” areas of law like family law, not seen as “tough enough” to “survive” in fields such as commercial law. Yet when a woman does display the necessary ability to succeed in (e.g.) commercial law, she is usually termed a bitch, & certainly criticised for being too masculine- when all she is doing is trying to succeed in a field where created & structured by men. I personally do not see the problem in embracing the different attributes that women have and thus can bring to the legal profession. There is nothing wrong with the involvement of emotion in law- especially in a field such as human rights. How could someone possibly “process” a victim of human rights violations in the same ambivalent manner as they would process a tax form? The former is a task that a woman is most likely to be better at because of her attributes and abilities that make her different from man.
It is also a fact of life that men and women are different, both physically and mentally.
At the same time, this does not mean that people should be discriminated against for their gender- or sex. It really should be irrelevant if a judge is male or female in terms of the decisions they make and the job they do. Should it matter what they are called? Stewards and stewardesses are nowadays called flight attendants; actresses are called actors- although it has to be pointed out that in the latter case the ‘gender-neutral’ term adopted was of course the masculine term! I see no reason for the court to need to apply two titles to the judges. In English, “Mr Judge” and “Ms Judge” simply sound superfluous.
For interest, some other pertinent trans-gender cases from the ECHR and the UK are I v United Kingdom Application No. 25680/94 (May 1997); Corbett v Corbett [1970] 2 All ER 33 7; Bellinger v Bellinger [2001] EWCA Civ 1140. There is also a very well-known Australian case, Re Kevin, said to be a ‘landmark case’ because it recognises rights of post-operative transsexuals. In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074 (12 October 2001); and on appeal: The Attorney-General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equal Opportunity Commission [2003] FamCA 94 (21 February 2003).
Thanks!
I actually met Deirdre (formerly Donald) McCloskey at a conference in The Hague, where Nussbaum was also present. I didn’t know she was a man!
Perhaps Tobias knows better, but I don’t think any of the European judges have gotten a sex change.
Well, this is may at first have been a meaningless linguistic distinction that may not have always existed, but since the rise of feminist studies, queer studies, and other cultural studies departments, it has become quite common and is now conceptual. Sex, or biology, is irreduceable – no amount of hormones or anything else can actually change your chromosomal make-up, XY, XX, or any of the other variants (apparently there is also X, XYY, XXY, and XXX as well). In addition to chromosomes I think it can also be used to describe physical features at birth, though there are cases (like the Guevadoce or hermaphrodites) where the `physical sex’ also changes.
Gender, on the other hand, refers to culturally determined roles, e.g. men making money, women taking care of children. As such gender is always fluid and contested – gender roles have changed significantly over time.
Where transgendered individuals are concerned, it is clearly the socially determined roles and norms that make these individuals feel alienated and not at home with their biologically determined sex – their desire to sometimes undergo surgery and chromosomal change to be more like the other sex is often based on the desire to fit in and physically conform to how they feel.
There is a fairly famous economist, Deirdre (formerly Donald) McCloskey, who underwent a sex change operation, and although it is uncommon in academia and many professional fields, I was curious if something like this ever came up with the European courts, and if so, how that might fit into their desire to achieve equal representation of gender/sex. It is becoming an issue – in Canada this went to a provincial human rights tribunal, and they recognized the right of a man to get a sex change operation paid for under the government run healthcare system (http://www.tgcrossroads.org/news/archive.asp?aid=688).
Man I love the Canadian courts…
Hi Nick,
Could you perhaps explain in more detail the difference between gender and sex? It is an interesting distinction, and I hear it all the time, but I still don’t know exactly what is meant by it.
Otto
There is some provision for the rights of transgender and intersex persons in EU/EC law (probably only EC law) and in European human rights law, as established there by cases such as Christine Goodwin v United Kingdom (2002). But I’m not an expert on any of this, I’m sorry to say.
I don’t think the issue has surfaced in the context of the fair representation of minorities on the international Bench (not that women, the subject of the policy concerned in Tuesday’s Advisory Opinion, are a minority). I don’t know of any transgender or intersex persons serving on any international Court, and while it is possible that I wouldn’t know, I still think that’s because there aren’t any such persons at present.
Of course, it is desirable that minorities or other underrepresented groups should have a role in international courts, so far as the size of the Court allows such considerations to come into play. One should bear in mind in this context the relative sizes of the minority and majority; for instance, it may not be desirable to elect a member of a small national minority in one State to the ECtHR, if that would mean sidelining the majority of that State’s population – as it might well do, since every State only gets one Judge, and the minority in question may be so different from the rest of the population that a Judge elected from such minority might not be able to fully represent, or be seen as fully representing, the population of the State.
Mind you, as the ECtHR has rightly pointed out in its Advisory Opinion, no amount of goodwill relating to the fair representation of all societal groups can aver be allowed to displace the requirement (Art. 2 of the ICJ Statute, Art. 21(1) ECHR) that all Judges must be fully qualified to do their job.
In any event, I doubt that any formalized measures are available to promote the fair representation of minorities on the Bench, in the manner that the fair representation of women is ensured by the Parliamentary Assembly of the Council of Europe through the operation of the rule that all lists of nominees must or should contain at least one female candidate. This particular measure, for instance, is right out if you start considering the representation of smaller groups than the female population, i.e. actual minorities. You couldn’t possibly require States to nominate at least one member of a small minority (take your pick) in a list of only three. Similar problems apply elsewhere: you cannot start to mandate the representation of minorities in fairly small bodies, or else the body in question would soon be filled with minority candidates only.
None of this is to say that minority candidates ought not to be elected, or that their minority status should be counted against them. I guess, however, that the noble aim of full representativeness must to a large degree be left to the political election process.
Out of curiosity, is the definition used by the courts and by the EU that of gender (which is based on identity) or sex (which is biological)? What are the provisions for transgendered or intersex individuals? Are there any such individuals in the European courts? I imagine that once we get past the hurdle of equality between the sexes, this will become an important item on the agenda. What about representation of other minorities as well?