Breaking the “Glass Ceiling”: Brazil Moves Forward with the Creation of Affirmative Action to Promote Female Judges
Clara Mota is a federal judge. She has a PhD in economic law from the University of São Paulo, is a member of the “Law and Public Policies” research group at the Faculty of Law of the University of São Paulo and a researcher in the areas of judicialization of socioeconomic rights, economic law and gender, and institutions of the justice system. Since 2017, she has worked as one of the founding judges and coordinators of the collective in favor of gender equality in the federal courts. This article was written for issue 89 of the WBO weekly newsletter, dated October 20, 2023. To subscribe to the newsletter, simply enter your email in the form at the footer of the article.
In her last session at the head of the Presidency of the National Council of Justice (CNJ), the administrative body that formulates judicial policies in the country, Rosa Weber, who is also a justice of the Brazilian Supreme Court, ensured the approval of a historic affirmative action program in favor of female judges, creating the possibilities for future gender parity in the composition of appeals courts, which are currently predominantly occupied by men.
Although women make up 38.8 percent of the total number of people in the judicial system, they represent only 25 percent of those who serve on courts of appeal. The data on female participation is even lower in federal court system, where only 32 percent of judges are women. In the appeal system participation is reduced to 19 percent. Finally, according to shocking statistics, only 6 percent of Brazilian judges are Black.
This scenario of inequality has hitherto supposedly been based on neutral rules that have had a different gender impact to the detriment of women and have proven to be quite difficult to change. Studies on judicial behavior in Brazil reveal an underlying idea of “professionalism” that judges project about themselves, with an ideological homogenization that reinforces the adoption of sexist standards and perspectives. This understanding is present in criteria for promotion established by the Federal Constitution.
The constitutional rules designed a hierarchical and vertical judicial career, allowing the advancement of judges based on two criteria that alternate from vacancy to vacancy: seniority and merit. According to the seniority criterion, the judge with the longest experience is promoted to the Courts of Appeal. According to the merit criterion, factors such as productivity and technical improvement must be observed. In practice, in many courts, merit-based promotions end up following strictly political criteria, which are based on personal relationships established with the judges who direct the courts and choose the candidates to be awarded promotion.
This state of affairs underwent a radical change with the affirmative action program instituted by the CNJ. Now, the judicial career will have separate rankings for men and women, so that women will compete against each other, on exclusively female lists, ensuring that, in the end, the vacancy will be filled by one of them. The reservation of vacancies for women will remain in force until each court reaches at least 40 percent female in its composition.
In addition to implementing a series of norms contained in international treaties to which Brazil is a party, especially the Convention on the Elimination of All Forms of Discrimination against Women, judicial parity tends to influence the adoption of similar measures in public careers, having already been reproduced, for example, in the Federal Public Defender's Office. This irradiating effect has not yet been measured and deserves attention. Known in general for being a conservative career, in this arena, the judiciary has become ground-breaking and avant-garde.
Despite this excellent news, the path towards gender equality in the judiciary will still require a lot of effort and coordination. During the session in which affirmative action was approved, resistance to the measure was noticed, expressed by professional entities in the judiciary and heads of courts, who presented requests for postponement of the measure and managed to reduce the scope of the proposal.
In response, Justice Rosa Weber quoted the Spanish poet Antônio Machado to note that “one completes the path by walking it.” With this statement, she wanted to express that progress in the field of gender equality in the courts would not be entirely achieved that day. There is a long way to go to implement parity and break the “glass ceiling,” that is, removing the “invisible” obstacles historically erected to impede the upward trajectory of women in the judicial career.
The issue will certainly shift to disputes in the courts regarding the application of the rule in concrete situations. However, it is possible to say, with certainty, that female judges will be prepared and committed to moving forward.
