ON WOMEN IN THE JUDICIARY, BIAS - AND WHY HEALTHY INSTITUTIONS CANNOT BE BUILT ON IDENTITY.
In relation to the debate that has been running in recent days about women in the judiciary and in the Supreme Court, I have gathered my thoughts to strike a friendly - but firm - blow for common sense.
What follows is a line of thinking that can be applied far beyond law. In fact, in almost every field. So it will probably set some hair on fire.
I hope so.
Because there is a strong need for us to confront the malaise that has slowly crept deep into the thinking of institutions, companies and government. So hang on and perhaps read this in a cold shower
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In several places I read the argument that we should have more female judges - including in the Supreme Court - to guard against bias, because women have a different view of the world, life and humanity.
That is - a 'different' bias.
The argument is often presented as "scientifically proven" - that women's different makeup from men's supposedly gives them different prerequisites for thinking, assessing and judging - and that this should therefore trigger an active correction in the judiciary.
I will not contest this. Men and women are different - in a way that requires neither scientific documentation, references to advanced psychological theories nor doctoral dissertations. So let us note that people have biases, blind spots and interpret the world vastly differently. Most know this long before they can spell "cognitive psychology".
Temperament, upbringing, experiences, traumas, ambitions, culture, intelligence and interests - all this shapes people's view of the world. It is banal anthropology.
So let us simply accept the premise fully.
Yes - judges are human.
Yes - humans have bias.
Precisely therefore our legal system is not built around the individual's feelings, experiences or identity, but around law, procedures, precedent and burden of proof. THE WHOLE POINT is to train people past their private inclinations - not to amplify them by making identity a criterion.
A state under the rule of law is precisely characterised by not seeking truth through identity, but through procedures.
The court exists because we have historically recognised that people's subjective experiences and perspectives are too unstable as a foundation for the exercise of power. Therefore the court has been deliberately made impersonal - not because people are alike, but because they are not.
But let us just take the step further, so we get down to the substance.
If one genuinely believes that the built-in mechanisms of the rule of law are not sufficient - or that trust in them is so low that we do not believe they correct for bias at all - then one is actually saying something far more far-reaching than one may realise.
For if gender itself is designated as a necessary correction factor, one must also explain why this logic suddenly stops there.
Why not also correct the judiciary for -
Ethnicity
Religion
Socioeconomic background
Political conviction
Parent vs. childless
Upbringing in nuclear family vs. divorce
City vs. province
Trauma history
Intelligence profile
Many of these factors shape people's worldview far more than gender alone.
So what is the criterion? When is a difference significant enough to require representation - and when is it suddenly irrelevant?
And why is it precisely gender - and only two at that - that is designated as morally and legally necessary markers, while all other differences are ignored?
If gender itself is a necessary correction factor, we must also accept that the judge's identity becomes a legitimate parameter in the exercise of judgement itself. In the final consequence, it means that two citizens can no longer expect to be judged by the same standard, but according to which identity the judge represents....
Can you not hear it!? Unless one is deranged, that is not equality before the law - that is differentiated law presented as justice.
If the answer is "because gender", then we are no longer in law.
Then we are in symbolic politics.
And there we move away from the court as institution - and towards the court as stage.
This, friends, is not progress.
It is regression, presented as insight.
And we cannot accept this premise.
It does not change the fact, however, that there actually exists a pattern that deserves a serious explanation - not a symbolic one. For it is true that we see a recurring phenomenon, which many react to - including because it is not explained to them.
The higher up in the hierarchies - in business, academia, politics and the judiciary - the fewer women.
This is an empirically observable fact.
The question is not whether it exists, but why it exists - and even more importantly - what we can actually do about it, IF we want to change something WITHOUT creating new problems.
The first error in the debate arises when one makes gender the primary explanatory variable. For gender explains very little in itself. It is not men as a biological category who "displace" women from the top of the hierarchy. It is rather a combination of life choices, risk profile, tolerance for strain, type of ambition, work patterns and priorities over time.
Top positions - also in the Supreme Court - require extremely long educational paths, many years in highly competitive environments, high degree of capacity and willingness for confrontation, responsibility for decisions with serious consequences and often a way of life where work is consistently prioritised over relationships, leisure and family life for decades.
Statistics show again and again that more men than women - on average - choose and maintain precisely these paths, especially when the costs become clear in one's thirties and forties. (We can go through the circumstances that lead to this, but that will have to be in the comments).
It does not mean that women cannot.
It means that fewer will pay the price.
And that is a crucial difference.
Men and women are not calibrated identically by nature, but are mutually complementary. This is also reflected in top positions, where even among men it is only a very small minority who reach the very top. We are talking about a narrow outer percentile, willing to accept an extreme elimination race and sacrifice virtually everything else to hold a top position. Far, far, far most of us do not give two figs for a top position - and do not have what it takes either.
The second error arises when one assumes that representation automatically provides epistemological superiority in the judiciary.
That men should not be able to understand, assess or judge cases about harassment and assault, because they are men, is a DEEPLY problematic premise. For it undermines the very idea of the rule of law - that judges are chosen on professionalism, judgement and the ability to abstract from their own feelings - not on identity.
If we first accept the argument that only certain groups can understand certain types of cases, then we dissolve the universal principles of law. Then courts no longer become places for law, but for what we might call "representative experiential voting".
It does not mean that experience is irrelevant. On the contrary. Diversity of experiences can be a strength. But experience is NOT the same as gender.
Read that sentence again.
Two women can have radically different life trajectories, values and perspectives. Two men can have deep insight into abuse of power, vulnerability and assault - both professionally and personally. Gender is a crude and imprecise proxy for something far more complex.
The third error is to call this a "democratic problem" without specifying what democracy means here.
If democracy is understood as equal access to pursue positions on equal terms, the crucial question is -
Is access closed?
Are women systematically excluded?
Are they filtered out on the basis of gender?
If the answer is no - and there is very little evidence that this happens in the world's most equal and egalitarian nation, Denmark, today - then differences in outcomes are not necessarily a democratic failure, but a result of 'free choices' made over time.
If one instead defines democracy as 'equal distribution of outcomes - as some parties in parliament seem to advocate for - then we are no longer in a liberal democracy, but in an outcome democracy.
And then one must also be honest about the consequences - quotas, political interventions in recruitment and a shift from merit to representation.
In plain terms, it means that people must be pushed into educations and careers that do not accord with their own wishes and priorities - so that the outcome can fit into a politically determined distribution scheme.
The intention behind these demands is often well-meaning. But institutions must never be judged on intentions - only on consequences. A state under the rule of law that begins to organise itself according to identity ceases to be impersonal, no matter how noble the motives may be.
If one wants to change the pattern without reducing professionalism or undermining trust in institutions like the Supreme Court, there is really only one viable path -
One must change the incentive structures earlier in life.
1. Make top careers more compatible with family life - for both genders (good luck changing this...)
2. Acknowledge differences in life choices without moralising - and recognise, as extensive Gender Equality studies have shown again and again over recent decades, that the freer career choices a society offers, the more gender-differentiated/stereotypical men's and women's choices become.
3. Accept that equality in opportunities does not yield equality in outcomes.
And above all - hold fast to the principle that gender should NEVER be the only - or primary - differentiator.
Neither in analysis, criticism or solution.
Otherwise we risk doing precisely what we say we want to avoid - reducing people to categories - and weakening the institutions that are supposed to stand above them.
...
You can take this image as a reminder of something fundamental - That men and women are not placed in this world to compete, suspect each other or be divided as genders.
We are created to unite.
To strengthen each other.
To lift each other up - not pull each other down.
When we acknowledge differences without making them into conflicts, and differentness without making it into hierarchy, something stronger than equality emerges - cooperation, balance and shared direction.
And nothing is more feared in this world - by any power structure - than a nation of united and unified women and men.
So now you know.
