Universal-Womens-accesss-to-justice-Publications-Practitioners-Guide-Series-2016-ENG

V
WOMEN’S ACCESS TO JUSTICE FOR GENDER-BASED VIOLENCE 95
promote equality and fairness, the composition of courts
and other judicial offices should reflect the State’s
commitment to equality. The judicial system should also
serve, by reflecting their diversity, so as to preserve and
improve public trust in its credibility, legitimacy and
impartiality.
“…For various reasons, whether historical, cultural,
biological, social or religious, women’s experiences differ
from those of men, and for this reason women can bring
different perspectives or approaches to adjudication,
while fighting against gender stereotypes. Consequently,
a diverse judiciary will ensure a more balanced and
impartial perspective on matters before the courts,
eliminating barriers that have prevented some judges
from addressing certain issues fairly. This reasoning is
equally applicable to the matter of encouraging the
representation of other underrepresented “groups”, like
ethnic, racial or sexual minorities, among others.” 234
One benefit of a diverse judiciary, among others, includes the
awareness that discrimination is discrimination, even if there
was no intention to discriminate; and also, as recognised by
the CEDAW Committee, that “identical or neutral treatment of
women and men might constitute discrimination against
women if such treatment resulted in or had the effect of
women being denied the exercise of a right because there was
no recognition of the pre-existing gender-based disadvantage
and inequality that women face”. 235
Judges should be aware of the need for de facto as well as de
jure equality, and also appreciate that often a view of
“transformative equality” indicates that profound changes in
law and practice must occur. 236
234
Ibid, paragraph 26-27.
235
CEDAW General Recommendation No 28, above note 229,
paragraph 5.
236
See Chapter IV, above, on “Transformative reparation” for genderbased
violence.