“The judiciary is now full of women”

Anyone who has frequented Lebanese courthouses since the 1990s has probably heard the above expression multiple times. Male judges have said it, especially those belonging to older generations nearing retirement. Members of the Supreme Judicial Council (SJC) have said it. Court chiefs and heads of the Institute of Judicial Studies have said it. Successive ministers of justice have been saying it over the course of twenty years. This “female invasion” (in the eyes of those who fear it) of the Lebanese judicial profession has manifested in the steady increase of the number of female judges. Since the first woman entered the Lebanese judiciary in 1960s,[1] the number of female judges has now reached almost half the total number of judges.[2] By comparison, the percentage of female judges in other countries, both Arab and non-Arab, is as follows: Egypt (0.34%), Syria (12%), France (64%), Slovenia (78%), and Italy (48%).[3] That the legal systems in many countries, including the ones listed above, have been witnessing a large increase in the number of female judges since the 1990s, which has prompted numerous questions and much opposition, underscores that the phenomenon we are addressing is global, and is not exclusive to Lebanon.

This article has three objectives. Firstly, it will present the main arguments constituting the foundation of the “phobia of the female judge”, a phobia shared by a number of judicial officials as well as some lawyers, legal aids, and litigants. Secondly, it will try to discern the image of the ideal female judge that the current politico-judicial system is trying to impose. Thirdly, it will focus on some of the problematics that may arise from an increase in female presence in a field that men have monopolized for decades. Of course, this issue is not only theoretical or psychological; it has likely had specific practical consequences on judicial politics. One example is the frequent talk in the corridors of courthouses about past attempts to support male candidates, at the expense of female candidates in the competitive exam for entry into the judiciary in order to restore balance to the occupational body.[4] (In fact, women were barred from the entrance exam in 1994 for this exact reason[5]).

Although we have no evidence of such practices occurring in recent years, we have heard wishes to that effect that are themselves very telling. Another example is the issue of the pay raise that judges received in 2011. In an interview with The Legal Agenda, a prominent political official attributed the pay raise to “an attempt to re-attract men to the judiciary after they have, for years, been distancing themselves from it due to the fall in judicial wages and, consequently, the prestige of the profession. This fall has made the profession a refuge for women only”. The official’s testimony leads us to the interesting hypothesis that the low social value of the judicial profession relative to, for example, its value in the 1970s, can explain the increasing number of female judges. The trend of men leaving professions that have lost their social standing to take up new, more attractive professions (e.g., working in international law firms), and women taking their place (e.g., in the local judiciary), can be observed across multiple professions and multiple countries.[6] While the increased presence of women in the profession is ostensibly a positive development in women’s status, it further provides evidence that their status remains inferior.

Phobia of the Female Judge: “Tomorrow she will stay home pregnant”

Some of the concerns conveyed by judicial officials about the increasing female presence in the judiciary, are similar to those found in other professions that are witnessing similar changes. However, some concerns are specific to the judicial profession and its position in society. Generally, these concerns can be classified into two groups. The first group pertains to concerns relating to the “natural biological” characteristics that patriarchal thought affixes to women broadly, and to female judges in particular. The second group includes concerns relating to the judicial profession’s social prestige, which could allegedly be damaged if the profession develops a female face, while a large portion of society still considers women incapable of taking on certain responsibilities.

The image of a pregnant judge in the courts and courthouses is undoubtedly a cause of concern for multiple judicial officials (as well as the heads of many public and private institutions). The same image of pregnancy is a source of pride and joy for these same men when they view it within the family or private sphere. As many studies (for which there is no room to elaborate on here) have shown, what is expected of women in the private sphere (pregnancy, motherhood, etc.) is exactly what is used against them in the professional sphere; in this case, the judicial profession. In an interview in 2012 investigating a different topic, a judicial official said the following:

“If the entire judiciary comes to consist of women, that is fantastic. But what will I do when they become pregnant? A girl enters the judiciary when she is 24, 25, or 26. This means that she will become pregnant two or three times, if not more. Each time, she stays home for months. Great, but what will happen with the cases she is examining? This puts more pressure on her colleagues. So instead of solving the problem of an insufficient number of judges, we are actually making it worse.”

The same logic is applied to the task of motherhood after pregnancy. The social system imposes upon women the responsibility of caring for the family, children, and the home with little help from men. At the same time, this familial responsibility is considered an obstacle to women taking on professional responsibilities. They will not be able to take on the responsibilities they need to because, presumably, they are always occupied with family matters. This logic leads to the common presumption that a female judge is less productive than a male judge, “because she will quickly leave the court to return home to take care of her children and organize her house, whereas a male judge has no problem staying back in his office for hours to complete work”. To my knowledge, there is no credible and comprehensive statistic concerning Lebanon or any other country that shows a difference in productivity between male and female judges. It follows that this presumption remains the product of a patriarchal mentality, imposing itself on the general judicial discourse. Biological stereotypes also continue to impose themselves on the image of female judges, as we often hear that female judges are more compassionate and emotional than male judges, thereby implying that they are not always fit for judicial-legal work, which requires the use of rational arguments and rulings.

Regarding the profession as a whole and its social standing, we often hear that the reasons women enter the judiciary differ from those of men. As indicated earlier, such claims are not supported by studies, research or statistics, but are solely derived from the pure patriarchal discourse, so self-assured that it does not need to provide evidence or arguments to prove the truth and validity of its claims, or at the least that these claims closely represents the current reality. We often hear that women want to become judges for purely material reasons. These include: an acceptable salary for a women that is no longer acceptable for the successful and ambitious Lebanese man; a long judicial holiday that allows them to accompany their children during their school summer holiday; comprehensive health and social insurance coverage; and various privileges, such as special number plates (that suit their supposed-concern with appearances). As a result, “a woman does not pay as much attention as a man to the judicial vocation. Therefore, she is less sensitive to key issues like the independence or prestige of the judiciary. She sees the judiciary as nothing more than a comfortable job”.[7]

Finally, one of the main causes of concern over the increase in female judges is no doubt a fear that the judiciary’s standing in the eyes of the population will decline. According to people who harbor this fear, a judiciary with a female majority faces more difficulty in awing and gaining the respect of litigants in a society that, for the most part, still approaches these matters in a traditional manner and is not ready to accept such changes.

What Kind of Female Judge Does the System Wish to Install?

In addition to the concerns expressed by judicial officials towards the work of female judges, the male-controlled Lebanese political-judicial system is trying to impose a set of specific characteristics that purportedly define female judges. In the absence of studies on this subject, we can only rely on the various observations we made during a number of years of research work within the justice system in Lebanon. This was done in order to better discern the nature of these imposed attributes, regardless of the extent to which attempts to normalize them within the judiciary have been a success or a failure. In this regard, one striking and telling fact is the absence of veiled women judges, even though a significant portion of Lebanese women do wear the hijab. Of course, there is no law banning hijab-wearing women from being judges. This absence or prohibition therefore stems from practices within the committees that oversee the judicial entrance exams. These practices are hard to observe and document.

However, multiple sources have assured us that these systematic practices have existed for years, producing one result: there is, as far as we know, not a single veiled woman within the Lebanese judiciary. The argument for this is, of course, that a judge, whether male or female, should avoid displaying any sign of bias towards one party, sect, or religion, or any evidence to suggest that they have preconceived convictions, as these things may affect the confidence litigants have in them. This argument would be convincing if religious displays were not present in the offices and cars of some Lebanese judges. That senior judges openly visit their respective religious authorities also confirms that displaying religiosity is not so much the problem, as the imposition of a specific model of woman that men want in the judiciary: a woman who leads a western lifestyle.

This “western female judge” model (the image of an ideal judge that the judicial-legal system is trying to propagate, which does not reflect the actual diversity of female Lebanese judges today) is largely confined to the visual manifestations of a typical western life-style. Ultimately, a Lebanese female judge is still expected to be married in order to properly fulfil her position within the judiciary. Naturally, there are many unmarried female judges in Lebanon, especially young ones who have entered the judiciary recently. However, senior judges constantly and persistently “advise” unmarried female judges to marry, in direct and indirect ways. Such “advice” even comes from the administrative heads of the female judges’ own courts. The subject of marriage and its necessity is part and parcel of the interactions between unmarried female judges and senior judges, even when the topic of conversation is legal or professional. Senior judges use this fatherly advice to undermine female judges’ legal arguments and position in any confrontation with them, and to deter them from instigating such confrontations in the future: “Do you know what you need? A groom.” The obvious implication of this patronizing advice is that a female judge’s objection or criticism [in the course of her interaction with the senior judge] does not stem from a shortcoming in the organization or actions of the judiciary, but rather from the female judge. Her bachelorhood is rendered a shortcoming that makes her see issues at hand in a similar, inadequate, light or at least weakens her ability to accept these matters as is, as others do.

The ideal female judge must also be pure and removed from society’s horrid perversions. A young female criminal judge, for example, should not investigate cases of homosexuality, prostitution, or other sexual practices deemed obscene that could offend her modesty. In at least two documented instances, the distribution of work and cases between male and female judges of the same court, perhaps at the instigation of the chief clerk, adhered to such a standard. The allocation of work remains a major issue, as the process sometimes resembles an act of distributing gender roles within the judiciary. Some court chiefs, for example, prefer to assign female judges to juvenile courts, sometimes because the judge in question has a “baby face that will reassure the children appearing before her”, and other times because she is “ultimately a mother, and therefore more understanding of the needs of infants and children”.[8] It is noteworthy that the judges who have become famous in Lebanon for issuing rulings protecting juveniles from certain traditional practices, such as Fawzi Khamis and Janah Obeid, are men. Finally, it is remarkable that when a female judge is seen as successful in her work, capable of keeping order in her hearings and facing opposing parties, defendants and lawyers, manly attributes are quickly affixed to her, not just by lawyers and other judges but also by the population and litigants themselves. We need only spend a little time in front of the office of a female judge to hear numerous comments along the lines of “Her lordship is a tough guy [qabaday], like a man or stronger; she could be president”.

Half of Lebanon’s Judiciary is Female: What has Really Changed?

The issue of the growth in the number of women within Lebanon’s judiciary is not just an issue of male chauvinists fearing for their position, or being held prisoner by their own traditional and stereotypical fantasies. Rather, it also raises serious questions, most of which we are still unable to answer in the absence of quantitative and qualitative studies. We will briefly outline these issues below, before approaching them within the context of the Lebanese reality.[9]

The issue of women entering the judiciary. Today, it is widely understood that French-inspired legal systems are more open to female judges than Anglo Saxon-inspired legal systems. This is because the first group (which includes Lebanon) relies on exams for admittance into the judiciary, whereas in the second group judges are chosen on the basis of reputation and fame, which may allow more room for patriarchal considerations [i‘tibarat dhukuriyyah].[10] In any case, would it be beneficial to adopt policies that encourage equality between men and women in the judiciary given the declining percentage of male judges? Would it be beneficial to implement an official system of gender quotas, instead of seeing the backstage whispering continue? What would be the legitimacy of such measures, especially given that the judiciary was, for centuries, monopolized by men without that having prompted such recommendations?

The issue of the judiciary’s public image. Given the increasing numbers of female judges, to what extent does the judiciary remain associated with masculine conceptions, as was the case for a long time, wherein man is the decision maker in the private sphere (the head of the family) and public sphere (the leader or judge)? How much has the increase in the number of women judges affected this image, and how is judicial work and its social dimensions in Lebanon being affected by these practical changes?

The issue of work positions. The few studies available confirm that, in Lebanon and in many other countries, female judges have for a long time mostly occupied relatively minor or less distinguished positions.[11] However, in the last few years this has begun to change in Lebanon, as female judges have acquired a number of high positions (such as posts in the Supreme Judicial Council, the Court of Cassation, and the criminal courts, as well as the head position in the Institute of Judicial Studies). Yet there are still fewer women in high positions than men. Can this be explained by the fact that their experience in the judiciary is still limited, which could be delaying their acquisition of such positions? Or is there a “glass ceiling” that, through various pretexts and standards, some openly acknowledged and some unseen, obstructs women from taking charge of important judicial positions?

The question of the changing nature of judicial work. We should not only monitor the number of female judges and the increase thereof; rather, it is also useful to consider the qualitative changes that this quantitative increase may instigate. Do female judges issue rulings that are qualitatively different from the ones issued by men? Could this be true, in particular, in cases of sexual harassment, immigration and asylum, family law, labor law, and criminal law? Do they behave differently in their daily judicial work in terms of their relationships with colleagues, bosses, lawyers, and litigants? Do they (actually) view their job, as well as their occupational appearance (e.g., their clothes) differently, and if so, how? Can these questions be asked without presuming that women have tendencies that differ fundamentally from that of men, a presumption that strengthens preconceived ideas about gender roles?[12] In any case, do female judges adopt the methods men use relating to work and their thought processes in order to increase their chances of integrating into a profession that has a distinctly masculine character? If true, that could repress any possible difference (if it exists), as demonstrated by experiences in other areas.[13]

What relationship do female judges have with feminist ideas and movements? Are they well acquainted with them? Do these ideas and movements have any effect on how they do their job or their conception of it? Do female judges, or a portion of them, form a subgroup within the judicial body through the development of a kind of unique professional identity that binds them together in their work and occupational concerns?

The question of the mandate of the Institute of Judicial Studies. Should gender issues, or at least issues relating to social roles and their effects on the creation and application of laws and decrees and on the work of judges and lawyers be incorporated into the institute’s training program for judges, both males and females? Would that be beneficial in Lebanon in the current circumstances, and to what extent is it feasible?

What about the increase in the numbers of women in the other legal and judicial professions and sectors (from lawyers, to law students, to functionaries)? What effect is it having on the institution as a whole and on its social image?

Towards a More Inclusive Judiciary?

Pending satisfactory answers to all these questions, it is fair to say that the Lebanese judiciary remains a theatre of unprecedented historical changes. Whatever the opposition and objections, whatever the power of the social norms that impose certain ideas and behaviors on women, and obstruct them from acquiring certain positions, the judiciary of tomorrow with its female majority, will not resemble the judiciary of yesterday when a group of men determined the ideal judge and the sensitivities of the judicial institution. The female majority will cause changes that we do not yet know. If we do not see these changes in the content of rulings, we will likely see them in the image of the judiciary and its role as seen by litigants in Beirut, Tripoli, Baalbek, Tyre, Mount Lebanon, the Beqaa Valley, and other regions of Lebanon. Whatever the nature of these changes, it is hoped (and suggested by some modest academic studies) that tomorrow’s female-majority judiciary will -because of women’s marginalized position in our past and present society- be more sensitive to the needs and expectations of vulnerable groups within the population, like women who, for decades, have been neglected by the capitalist-patriarchal system.

This article is an edited translation from Arabic.

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[1] According to Faiha Abdulhadi, a woman judge was appointed in Lebanon in 1969. See: Faiha Abdulhadi’s, “The Arab woman and the Arab culture”, Ibn Rushd online magazine, Issue No. 16, Winter 2014-2015; visited on March 1, 2015. Some judges maintain that women entered the judiciary a few years earlier.

[2] See: Nizar Saghieh and Lama Karame’s, “Feminizing the Judiciary: Which Positions? Which Jobs? Which Districts?”, The Legal Agenda, 2012. The authors state that in 2010, female judges constituted 38% of the Lebanese judiciary. This percentage has no doubt risen since that time.

[3] See: Ulrike Schultz and Gisela Shaw, Gender and Judging, Onati, Hart Publishing: Oxford, IISL, 2013; special attention to the first chapter.
[4] We have also heard such talk in European countries. See ibid. pgs.14 and 125 for France, and p.267 for Holland.
[5] Statements made by Joseph Moghaizel and Zaher el-Khatib, Parliament minutes, 18th Legislative Cycle, Second Regular Session, Fourth Sitting, December 14, 1993.
[6] Regarding the judiciary, see: Schultz and Shaw, Gender and Judging, 2013, p.14.
[7] Interview with the same official.
[8] All of these expressions were heard and recorded during field research that we conducted in past years (interviews and observations).
[9] Here too, most of these issues have been investigated in the context of a number of countries (though not Lebanon). See: Schultz and Shaw, Gender and Judging, 2013.
[10] Ibid., refer to p.14 et s.
[11] Regarding the Lebanese situation, see: Saghieh and Karame’s, “Feminizing the Judiciary”.
[12] For a discussion on these issues regarding female judges, see: Schultz and Shaw, Gender and Judging, 2013, p.26 et s.
[13] Ibid., refer to p.27.