Brazil’s judiciary moves to address gender gap

Ruth Green

On 5 September, Brazil’s National Justice Council (CNJ) issued a resolution to promote greater female representation across all levels of the judiciary. In one of her last acts as president of the CNJ and president of the Supreme Federal Court (STF) – Brazil’s highest court – Chief Justice Cármen Lúcia signed the resolution and stated: ‘What we’ve made here today is history. We hope it will be repeated in other elective and representative positions across the country…Women are held back in the courtroom almost 20% more than men, which is symptomatic [of a wider problem]. It's not something we can continue to ignore.’

Flávia da Costa Viana is vice-director of international affairs at the Brazilian Association of Judges (AMB). She has been advocating for the gender parity initiative both inside and outside Brazil and believes the resolution is long overdue. ‘Gender parity in Brazil basically means equal opportunities for male and female judges to get promoted to positions in the higher courts, or even to positions of administrative leadership in the courts or the AMB,’ she says. ‘Theoretically we are equal and have the same rights, but it’s not that easy for us to get to the top positions, such as the president of a court, or president of an association of judges.’

Justice Cármen Lúcia, president of the Brazilian Supreme Court

Da Costa has defied expectations. Two years ago she was elected as the first female president of the International Union of Portuguese-Speaking Judges (UIJLP), an international grouping established in 2010 to promote the work of the judiciary in Lusophone countries. Back in her native state of Paraná, she is a judge in a court of first instance in Curitiba. At this level of the judiciary, around 60% of judges are female. The problem becomes clearer as you go further up the court hierarchy: an estimated 21% of judges are female in the superior courts. In the Supreme Court this figure drops to 17%.

Da Costa Viana says there’s no shortage of applicants for the higher courts, but there is one main obstacle to climbing the judicial ladder: ‘Nowadays more women are passing the exams and the number of female judges is increasing. What concerns us more is the process to get to the superior courts. It’s not based on merit, it’s more related to politics and usually men are the ones appointed as judges in the higher court positions.’

The CNJ’s resolution may improve the situation. It’s already prompted the Brazilian Bar Association to declare that at least 30 per cent of the candidates put forward for board positions on its Sectional Councils and Subsections for its next round of elections in 2021 must be female. A working group of ten judges – nine female and one male – has also been established to identify the best ways to implement gender parity policies in courts across the country.

Da Costa Viana is optimistic about the resolution’s impact: ‘The problem has been identified and even though it has been really difficult, especially to change the mindset of judges, now that it’s on paper it will have to be put into practice. It will take time, but this represents a real victory for us – both for female judges and any women that work in the judiciary.’

Women on the bench

Lúcia was only the second woman to be appointed as president of Brazil’s highest court, a position that rotates every two years among the court’s 11 justices. In the UK, the incumbent Supreme Court president, Baroness Brenda Hale, recently spoke out about the benefits of having female judges on the bench during a conference on women in the law in New Zealand. Hale, who was sworn in as the court’s first female president in September 2017, said she felt the presence of female judges ‘improves the quality of debate’ and ‘counters sub-conscious biases’ in the courtroom. Two of Brazil’s 11 Supreme Court justices are female. In the UK, three of the 12-member Supreme Court bench are women, following the appointment of Lady Arden in October 2018.

Da Costa Viana agrees with Hale’s assessment. ‘I would say that women’s contribution in positions of power in the judiciary could only bring benefits to the justice system,’ she says. ‘Whether we have a different approach to men, I’m not sure, but what I’m certain about is that we are just as a capable as they are.’ Greater female input in some cases, such as the abortion debate currently facing the STF, could also be valuable. ‘I think it would be interesting, for this and other issues, to have a greater diversity of opinions and backgrounds and this would enhance the Court’s rulings,’ she says.

These positive moves by the judiciary echo a wider trend in legal circles to tackle gender inequality in the country. ‘Law firms are often stuffy places compared with more modern companies, but in Brazil they are ahead of the curve more generally in terms of female empowerment,’ remarks Ricardo Veirano, a partner at Veirano Advogados and member of the IBA Latin American Regional Forum Advisory Board. ‘Every major firm has a diversity committee and makes a serious effort in this area. This is also happening in Brazilian banks and large corporates.’

However, Veirano says there’s still much work to be done to narrow the gender gap elsewhere in Brazil. ‘We are seeing very slowly the increase of female candidates and the representation of women in Congress, but I think we’ve still a long way to go on that,’ he says. ‘This movement also hasn’t hit society in general and there’s sadly still a lot of violence against women.’