Document Type

Article

Disciplines

International Law

Abstract

At the 2019 Association of American Law Schools ("AALS") Annual Meeting, the panel on Judicial Diversity in Transnational Courts asked, "Why do so few women serve on transnational courts and tribunals?"1 That line of feminist inquiry has a long tradition. As Catharine MacKinnon observed, "Feminists have this nasty habit of counting bodies and refusing not to notice their gender." 2 Underlying the panel's organizing question-and indeed much of feminist jurisprudence-is the belief that the presence (or absence) of women has consequences in almost any context. Based on personal and professional experience, we share this foundational assumption, though we note that the research on whether women judges make a difference in outcome is equivocal.

Despite our understanding of the intuitive power of asking for more women, we do not pursue the panel's original inquiry. Instead, this essay takes up a second-order question: why ask why so few women serve on transnational courts and tribunals? If the reason for posing this question is to strengthen these tribunals in their work of recognizing and remedying injustice, the question limits the range of potential solutions. This perspective is informed by our experience with the Feminist Judgments Projects, an international collaboration of feminist scholars and lawyers who use feminist reasoning and methods to rewrite judicial opinions. The feminist judgments methodology demonstrates that judges who apply feminist perspectivesnot judges who claim a particular biology or gender-can make a difference in the substance and form of judicial opinions. As editors of the U.S. Feminist Judgments Project, we specifically declined to guide contributors on what we meant by "feminism."5 From a personal and professional perspective, though, we understand feminism as a historical and contemporary movement, related to politics, that motivates multiple social, legal and other projects seeking women's equality.6 At the same time, feminism to us is "a movement and mode of inquiry that has grown to endorse justice for all people, particularly those historically oppressed or marginalized by or through law."7 Our version of "feminism" therefore is not the unique province of "women," and we believe that both terms must include multiple and fluid identities and perspectives.

Thus, even if tribunals were full of "feminist" judges, they would be applying feminisms that are sufficiently complex, nuanced and different that even majorityfeminist benches would disagree. For that reason, the overall justice project may be better served by asking why in transnational courts and tribunals there is so little diversity of all kinds. Part I of this essay provides an overview of the limitations of using binary categories like "women" and "men." Part II reframes the initial question as part of a broader quest for diversity in decision-making. The essay concludes by considering further avenues for inquiry.

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