The Gender of Judgments: Some Reflections on 'Bias'

Abstract

This article starts by considering the extent to which women have been described as other when it comes to judicial decision making. Their marking by use of an adjective ('women' judges) serves to remind us that maleness has traditionally been presumed to be the benchmark or standard against which neutrality and objectivity in judging are measured. The discourses used to describe issues around judging and in particular, in debates about the diversification of the judiciary, continue to imply a white male heterosexual able bodied norm from which all those who are 'other' deviate. Several cases involving challenges to women's role as legal decision-makers using the bias doctrine or by way of recusal application help to demonstrate the gendered and racialised underpinnings of legal discourses. The article questions whether having more women and other outsider judges will improve the legal system. Ultimately, it concludes that the focus of efforts to bring 'outsiders' into the judiciary needs to shift from simply letting them in to questioning or perhaps reformulating the fundamental ways in which the activity of judging is carried out.

Keywords: judging, legal discourses, women judges, outsider judges, otherness, bias, gender, race, perspective, judging, judges

JEL Classification: K10, K30