Judicial decisions have both an individual and a collective power.

Judicial decisions impact the most intimate details of everyday life, and they also shape the identity of the judiciary. Judicial decisions thus play a major role in defining the character of a democratic nation and in giving meaning to the rule of law. Thus, the Office of the President of the Supreme Court of Mexico aims to promote jurisprudential practices that uphold the principle of the right to equality. Such an effort requires generating tools that can help jurists to adjudicate cases with a gender perspective. The goal of this Protocol for Judicial Decision-Making with a Gender Perspective is to address and remedy certain problems identified by the Inter-American Court of Human Rights in three recent cases against Mexico: the ‘Cotton Field” Case (Campo Algodonero), the Ines Fernandez Ortega Case, and the Valentina Rosendo Cantú Case.


In those cases, the Inter-American Court made clear that Mexican courts must apply, as binding law, the international human rights treaties to which Mexico is party. This Protocol responds to that exhortation by explaining how to implement international human rights treaty law as binding law. It also outlines methods by which adjudicators can improve their awareness of women’s rights under the law and can build their capacity to employ a gender perspective when deciding cases. The Protocol will enable judges, magistrates, justices, and other adjudicators to identify and evaluate the following in the cases they are asked to decide:
• Disparate impacts of laws and norms;
• When gender stereotypes inform the interpretation or application of laws or norms;
• How binary constructions of sex and gender lead to the legal exclusion or disenfranchisement of certain persons;
• How inequitable distributions of resources lead to unequal distributions of power; and •
The legitimacy of using differentiated treatment in laws and judicial decisions.


Given that judicial decision-making must be independent and impartial, this Protocol proposes procedures through which the structural circumstances that perpetuate sex and gender-related human rights violations may be detected, emphasizing that any jurisprudential effort must take into account the complexity of the social, economic and cultural context. The intended audience for this publication is those who impart justice at the state and federal levels, as well as any other persons or institutions involved in legal cases or concerned with access to justice. The Protocol also responds to findings from an internal knowledge assessment carried out within the Mexican Supreme Court in 2008 and 2009, a 2012 assessment entitled “Knowledge and Perceptions about Gender and Human Rights among Mexican Supreme Court Personnel,” and an assessment into gender and work culture carried out in 15 state supreme courts.


KNOWLEDGE ASSESSMENTS AT THE SUPREME COURT OF MEXICO RESULTS FROM 2008 & 2009


• Almost 7 out of 10 judicial personnel (justices and law clerks) of the Supreme Court (67.7%) believe that it is important to include a gender perspective when analyzing legal issues and in their judicial decision-making processes.
• 18.3% of judicial personnel admit that they do not know what a “gender perspective” means, and half of them are not sure how to include it in their work or do not consider it a priority.
• The majority of judicial personnel erroneously believe that adopting a gender perspective means declining to make any distinctions between men and women.

RESULTS FROM 2012

 
• Focus groups assessing justices and law clerks’ comprehension of a “gender perspective” yielded comments such as the following: “I think that what “gender equity” means has not really been made clear. I find it to be a complicated concept.” “...I think that [the concept] is still not well understood. It is understood mainly as parity, which is to say, if there are five men, we must also have five women…”
• And the focus groups made the following comments when discussing whether judicial decision-making could utilize a gender perspective: “…in truth, the Supreme Court’s current approach still relies on very distorted ideas about the spectrum of human rights and the idea of a gender perspective.” “Here, we try to be as fair as possible, and not make distinctions on the basis of gender, race, or religion, and simply resolve cases according to what happened.” “... today with gender equity we have more tools to resolve family law cases.