ABSTRACT
Historically, the Judiciary has been a male-dominated area in Spain. Women were forbidden to enter the Judiciary until 1966, and it was not until 1977 that the first woman was nominated as a judge. Since then the scene has significantly changed. Nowadays women account for almost half of the judges and magistrates in the country, and in the last years have been entering into the judicial career in greater numbers than men. However they still face a number of boundaries that prevent them achieving the highest levels in the judicial career, even when they have enough capabilities and merits to get to the top. In this article we will analyze the gender bias in the determination and the procedure of assessment of merits amongst the facts that could affect the exclusion of women from the highest positions.
The Glass Ceiling in the Spanish Judiciary
Historically, the Judiciary has been a male-dominated area in Spain. Women were forbidden to enter the Judiciary until 1966, and it was not until 1977 that the first woman was nominated as a judge. Since then the scene has significantly changed. In 1995 women were only 31% of the members of the Judiciary; nowadays they account for 49.16%, and even last year, 63% of the new entries corresponded to women.
Despite the feminization of the career in the last two decades, the figures show a significant gender gap as we look at higher grades in the hierarchy compared to the lower ones. 65.3% of women chair first instance tribunals on civil matters, but only a scarce 11% sit in the Supreme Court, and in the Constitutional Court there are only two women magistrates out of 12 members.
If we look to the positions of maximum responsibility, no woman has ever chaired either the General Board of the Judiciary or the Supreme Court, and only one has chaired the Constitutional Court (from 2004 to 2011). There is only one woman presiding over one of the High Courts of Justice of the Autonomous Regions (out of a total of 17 Courts), and 20.8% of women chairing the Provincial Courts.
One of the reasons that could be argued to explain this gap is the later incorporation of women in the Judiciary. But looking into the data this fact cannot solely support the existing imbalance. The following tables show the number of active members disaggregated by sex, age and seniority, and the percentage of senior women and men by years of experience:
AGE GROUPS 1 |
||||||||
| 20-30 | 31-40 | 41-50 | 51-60 | 61-70 | Total | Medium age |
Average seniority |
|
|
Women
%
|
59 |
919
66,3%
|
926 52,4% |
452 36,7% |
48 11,5% |
2404 49,16% |
44,1 | 13,5 |
| Men | 30 | 467 | 841 | 779 | 369 | 2486 | 50,1 | 18,4 |
| Total | 89 | 1386 | 1767 | 1231 | 417 | 4890 | 47,1 | 16,0 |
| SENIORITY (years of experience in %) 2 | ||||
| 1-9 years | 10-19 years | 20-29 years | 30-39 years | |
| Women | 59.84% | 46.65% | 39.30% | 3.85% |
| Men | 40.16% | 53.35% | 60.70% | 96.15% |
According to the figures presented, there are an important number of women with enough years of experience to be appointed to the highest tribunals. However, only 11.3% of magistrates in the Supreme Court are female 3.
In the National Court the representation of women is more balanced, accounting for 34.4% of the total number of magistrates 4. But even though women have a quite balanced presence and similar average experience to their male colleagues, there is no woman chairing any of the mentioned Courts up to now.
The data seems to indicate that although there are women magistrates with enough experience and capacity, there still remain boundaries that prevent them opting in to the highest positions of power and decision-making.
One of the obstacles recognized by the Commission of Equality of the General Board of the Judiciary is related to the procedure, and the criteria taken into account, for the nomination of magistrates to the highest Courts.
The appointment of the members of the Supreme Court (including the President), as well as the Presidencies of the National Court, High Courts of Autonomous Regions and Provincial Courts follows the procedure of discretionary nomination (regulated by Regulation 1/2010, of 25 February, on the provision of discretionary nominations for the Judiciary) which is different from the standard ways of access to and professional promotion in the rest of the tribunals.
These members are selected by the plenary of the General Board of the Judiciary 5, attending to the assessment of merits and capacities of the candidates.
The general merits taken into account for the jurisdictional seats primarily relate to additional years of experience, practice of relevant judicial activities out of the jurisdictional function, and the resolutions issued of special relevance and particular technical quality. The general merits considered for the seats of governance include further participation in organs of governance of the tribunals 6.
One of the criteria that has an evident negative impact on women is the requirement to have experience in the governance organs of the tribunals, since there are almost no women chairing the main Courts.
But the general criteria considered for jurisdictional positions are not gender-neutral either.
One of the most valued merits is seniority. As mentioned before, to be appointed as magistrate in the Supreme Court it is necessary to have a minimum of 15 years within the Judiciary. But the medium seniority of the magistrates who sit at the Supreme Court is 28,6 years, and 70% of them have more than 35 years of experience. Of magistrates with more than 30 years of experience, 96.15% are men. In the National Court the situation is quite similar, since 89% of magistrates of the National Court have more than 27 years of experience.
Another of the criteria taken into account relates to the practice of jurisdictional activities out of the Judiciary. This requirement has also a negative impact in the equal assessment of women and men. Women are less likely to carry out professional activities other than their work as judges, given the unequal distribution of reproductive and care work, which is an additional workload almost exclusively performed by women.
In this regard, a poll taken in 2008 regarding work and family life balance in the Judiciary is of great interest 7. The majority of respondents (56,9% women and 41,3% men) recognized that familial responsibilities have a great impact on the possibility of performing additional professional activities. There was a great consensus regarding the need to improve the measures to reconcile work and family life in the Judiciary, and a great number of people considered that there has not been any improvement in the last years.
According to this poll, the need to reconcile work and family life also plays a decisive role in the decision to apply for the roles provided within the discretionary nomination procedure, with 55,5% of women (vs. 35,5% of men) considering that having family responsibilities has a paramount impact on their decision not to offer themselves as candidates for those roles.
But apart from the work and family life (im)balance, gender itself is seen as a fact that impacts on the decision to apply for these high profile roles. As many as 39% of women consider that being a woman is per se an obstacle to apply for these roles provided by discretionary appointments. In fact, in 2012, 37% of the candidates for discretionary appointments were women, but amongst those finally nominated, women accounted only for 12% 8.
Another variable that could be considered significant in the low rates of women nominated to the highest seats in the Spanish Courts is the gender imbalance in the composition of the selection board. This variable is of paramount importance because it is widely recognized that men tend to select male candidates 9.
As mentioned above, in Spain the appointment of the members of the Supreme Court (including the President), as well as the Presidencies of the National Court, High Courts of Autonomous Regions, and Provincial Courts are selected following the procedure of discretionary nomination by the Plenary of the General Board of the Judiciary.
Until 2008, the General Board of the Judiciary 10 was absolutely male-dominated, as can be seen in the following table:
HISTORICAL COMPOSITION OF THE GENERAL BOARD OF THE JUDICIARY 11 |
||||||
| 2008-2013 | 2001-2008 | 1995-2001 | 1990-1995 | 1985-1990 | 1980-1985 | |
| Women |
7
(33.3%)
|
2
(9.5%)
|
4
(19%)
|
2
(9.5%)
|
1
(4.7%)
|
0
(0%)
|
| Men | 14 | 19 | 17 | 19 | 20 | 21 |
| Total members | 21 | 21 | 21 | 21 | 21 | 21 |
To correct the misrepresentation of women in the positions appointed by discretionary nomination, the Commission of Equality of the General Board of the Judiciary provided a gender-sensitive assessment of the Regulation 1/2010, of 25 February that rules the procedure of discretionary appointments 12.
In line with the mandate of the Organic Law 3/2007 of Equality Between Men and Women, that foresees the adoption of positive actions in the public sphere to correct the conditions of discrimination against women that still persist, the report brings forward a number of proposals with regard to the selection criteria:
– Establish maximum periods of experience for each jurisdictional order, so that further years of experience beyond those stated should not be considered. The criterion of seniority without any reasonable limit systematically favours men.
– Include the criteria of continuous training and specialization as an alternative to the practice of jurisdictional activities out of the Judiciary. As mentioned before, the balance of work and family life makes it difficult for women to engage in other activities out of working hours.
– Introduce the appraisal of organizational capacities demonstrated by participation in task forces, groups of analysis within the Board of the Judiciary, or judicial associations.
– Lessen the weight of the requirement of previous participation in governance bodies, which is not gender-neutral since it is almost exclusively men who sit in the governance positions.
– Introduce a system of quotas to ensure balanced representation, to be applied in cases where candidates have the same level of merits and capacity.
– Include in the singular motivation of each decision of selection a specific chapter related to how gender was taken into account to assess merits and capacities of the candidates.
Despite the fact that the Regulation explicitly recognizes its commitment to the principle of equality and formally foresees the further development of measures which foster the balanced representation of women in line with the principles of merit and capacity, the final draft has not clearly included the measures proposed by the Commission of Equality. However, it states that in the calls for single appointments it will determine the concrete merits and capacities that candidates should meet in a way that ensures concurrence in conditions of equality to all applicants; and regarding the motivation of the decision it should include the necessary elements to assess whether any discrimination on the grounds of gender has occurred within the selection procedure.
This commitment to the principle of equality is hence not fully guaranteed by the Regulation, which should have included more concrete measures in its articulation, shifting therefore the responsibility to introduce positive actions to the further single calls for each appointment.
However, in order to provide a stronger framework to develop the principle of equality within the Judiciary, the Commission of Gender Equality has recently published the first Plan of Equality of the Judiciary, adopted by the Plenary on February 2013 13, with the objective of “promoting real equality between men and women within the judiciary, combating all continuing manifestations of discrimination, and removing persistent obstacles and social stereotypes”.
Special emphasis is made on the access to judicial career and career advancement within the judiciary. To that end a comprehensive diagnosis is being made to analyze the obstacles and further opportunities to foster the promotion of women in the process of appointing government posts.
The reconciliation of work and family life is another area of paramount importance in achieving this goal. Special attention is given, among other issues, to the adoption of measures of co-responsibility, and on guaranteeing that the right to reconciliation would not be an obstacle for professional advancement.
The Plan is intended to be comprehensive, and therefore provides a wide range of measures to mainstream gender into the Judiciary, articulated around 11 main lines, as follows:
I. Access to Judicial Careers
II. Career advancement within the Judiciary
III. Vocational training and awareness-raising
IV. Reconciliation
V. Occupational health and safety
VI. Non-sexist language
VII. Remuneration
VIII. Inspection procedure
IX. International relations
X. New technologies
XI. Information and participation
In order to assess its functionality and provide any revision or proposal needed in order to fulfil its objectives, the Plan foresees the creation of a Monitoring Commission. Besides, the Commission for Equality will draw up annual reports on all matters covered by the Plan to analyze the improvements achieved.
CONCLUSIONS
Since 1977, the year in which the first woman entered to serve as a judge in Spain, the Judiciary landscape has seen an enormous change. Nowadays women are almost half of the judges and magistrates in the country, and are entering the Judiciary in a higher proportion than men. However, they continue to face the glass ceiling that persists in all areas of the social scenery. In every profession women face gender discrimination to achieve the highest positions, even when they have enough merits, capability and experience to be equally successful in their career as their male counterparts.
The Law on Equality between Men and Women passed in 2007 14, has had a huge impact, compelling all the public and private structures to promote the participation of women as full actors in society, and to effectively integrate the constitutional principle of equality in all spheres of public and private life. The Law has affected all the national and regional regulations, and the composition and structure of public bodies and agencies at all levels. As a consequence, a number of new structures to foster gender equality in the institutions have been created to respond to the requirements of the Law. In the General Board of the Judiciary, the Commission of Gender Equality 15 was created in October 2007 16, with the aim of assessing the Board on the measures needed to implement the principle of equality on its competencies and on the judicial career.
Nevertheless it seems that the principle of equality and the commitment to foster equal representation for women is still not fully embraced in our society. There remains a certain reluctance to introduce quotas or corrective measures to overcome the persistent inequalities that prevent women from accessing the highest positions. It seems that it is still expected that time by itself will correct the discrimination of women.
But it is not that easy to overcome the historical inheritance that excluded women from education; the discrimination women faced in accessing civil rights and to be considered as citizens and, ultimately, as humans. These shadows are still present in our society, and printed in the mind of both men and women. Some examples of the abuses women face nowadays are violence in close relationships, and sexual harassment in the workplace and in society, amongst others. These shadows still produce stereotypes, which condition women’s opportunities.
For that reason, stronger positive actions and measures are needed to foster the presence of qualified women in every seat, in every position where they are not equally represented, both in the judiciary and in all other areas, bearing in mind that it is only with the full consideration and participation of both men and women that we can achieve an equal society.
Sandra Isabel Novo Canto
Sandra Isabel Novo Canto
Sandra holds a Master of Laws (LLM) and a Master’s degree in Gender and Equality Policies from the University of Salamanca. Currently a PhD candidate, in her research she explores the implementation of international and EU laws on gender-based violence in the EU 28.
Sandra has a strong professional background in gender, acquired in her working experiences with the Spanish Ministry of Equality, the Spanish Agency for International Development Cooperation (AECID) and the European Parliament.
She is specialized in the analysis of laws and public policies from a gender and human rights standpoint. Her main interests focus on international and EU law in the areas of migration, asylum, gender-based violence and human trafficking.
Besides, Sandra is a passionate feminist, and has a strong commitment to work for the advancement of women’s rights.
- Source: Equality Plan of the Judiciary (2013). General Board of the Judiciary of Spain. Available in English (EN) at: http://www.poderjudicial.es/cgpj/es/Temas/Igualdad_de_Genero/La_igualdad_de_genero_en_la_carrera_judicial
- Source: Gender Assessment Report on the Regulations on the provision of discretionary appointments (2010). General Board of the Judiciary of Spain. Available in Spanish (ES) at: http://www.poderjudicial.es/cgpj/es/Temas/Igualdad_de_Genero/Estadisticas_e_informes/Informes_de_impacto_de_genero
- The experience required to serve as a magistrate of the Supreme Court is 10 years in the category of magistrate with 15 years of seniority in the Judiciary. One position in each five is reserved for lawyers of renowned competence with at least 15 years of experience. To be appointed as President of the Supreme Court it is necessary to have served for at least three years in the category of magistrate of the Supreme Court (arts. 343, 345 and 342 LOPJ).
- To enter the National Court it is necessary to have eight years of experience in the jurisdictional order concerned. To be appointed as President of the National Court it is necessary to have served for at least 10 years in the category of magistrate and eight years in the jurisdictional order concerned (arts. 330.7 and 333 LOPJ). More information can be found at (ES): http://www.poderjudicial.es/cgpj/es/Temas/Igualdad_de_Genero/
- The Commission of Equality of the General Board of the Judiciary was created pursuant to the Law on Equality between Women and Men (LO 3/2007, of 22 March). Its main objective is to assess the Board on the measures needed to implement the principle of equality in its competencies. To this end, the Commission provides gender impact assessments on the decisions of the Board, as well as training, research and statistics related to gender equality in the Judiciary. More information can be found at (ES): http://www.poderjudicial.es/cgpj/es/Temas/Igualdad_de_Genero/
- For more information see Regulation 1/2010, of 25 February, on the provision of discretionary nominations for the Judiciary. Available at (ES): http://www.poderjudicial.es/cgpj/es/Temas/Compendio_de_Derecho_Judicial/Reglamentos/Reglamento_1_2010__de_25_de_febrero_de_2010__que_regula_la_provision_de_plazas_de_nombramiento_discrecional_en_los_organos_judiciales
- Available at (ES): http://www.poderjudicial.es/cgpj/es/Temas/Igualdad_de_Genero/Estadisticas_e_informes/Documentos_relacionados/Encuesta_a_la_carrera_judicial_sobre_la_conciliacion_de_la_vida_familiar__cuarto_informe_ano_200
- Source: Equality Plan of the Judiciary (2013). General Board of the Judiciary of Spain. Available in English (EN) at: http://www.poderjudicial.es/cgpj/es/Temas/Igualdad_de_Genero/La_igualdad_de_genero_en_la_carrera_judicial
- Apart from the empirical experience that shows the huge gender gap among company boards, there are a number of studies that demonstrate that the boards of selection tend to favour those candidates with similar characteristics to themselves, and gender is significantly relevant in this “fitting” perception. See, among others: Doldor, E. et al. (2012), Gender and Diversity on Boards: The Appointment Process and The Role of Executive Search Firms, Cranfield University (available at: http://www.som.cranfield.ac.uk/som/dinamic-content/media/news/EHRCGenderdiversityonBoards.pdf ); Ladegard, G. et al. (2012), “Exploring director recruitment: What characteristics constitute an appointable candidate?” (available at: http://groladegard.no/Exploring%20director%20recruitment%20book%20chapter.pdf ); Farrell, K. & Hersch, P. (2005), “Additions to corporate boards: The effect of gender”, Journal of Corporate Finance 11 (2005) (available at: http://digitalcommons.unl.edu/financefacpub/18 ); Dobbin, F., Jung, J. “Corporate Board Gender Diversity and Stock Performance: The Competence Gap or Institutional Investor Bias?” (available at: http://www.wjh.harvard.edu/~dobbin/cv/workingpapers/Board_Diversity_and_Performance_07_01_10.pdf)
- The members of the General Board of the Judiciary are elected by the Congress and the Senate, among the judges and lawyers of renowned competence.
- Data available at: http://www.poderjudicial.es/cgpj/es/Poder_Judicial/Consejo_General_del_Poder_Judicial/Informacion_Institucional/Composicion
- Report available at (ES): http://www.poderjudicial.es/cgpj/es/Temas/Igualdad_de_Genero/Estadisticas_e_informes/Informes_de_impacto_de_genero/Informe_de_impacto_de_genero_al_proyecto_de_Reglamento_1_2010__del_Consejo_General_del_Poder_Judicial__por_el_que_se_regula_la_provision_de_plazas_de_nombramiento_discrecional_en_los_organos_judiciales
- Available in ES and EN at: http://www.poderjudicial.es/cgpj/es/Temas/Igualdad_de_Genero/La_igualdad_de_genero_en_la_carrera_judicial
- Organic Law no. 3/2007, of 22 March, for the Effective Equality Between Men and Women (Ley Orgánica 3/2007, de 22 de marzo, para la Igualdad Eefectiva de Mujeres y Hombres). Available at (ES): http://www.boe.es/buscar/doc.php?id=BOE-A-2007-6115
- Website of the Commission of Gender Equality: http://www.poderjudicial.es/cgpj/es/Temas/Igualdad_de_Genero
- The current Commission was reorganized in 2007 pursuant to the Law on Equality, on the basis of a previous Commission of Equality created in 2005.