The Personal and the Judicial: Sex, Gender and Impartiality

Abstract

Taking Judge Edwin Cameron’s public revelation of his HIV status and the lawsuits brought by Judges De Vos and Satchwell as a starting point, this article examines and critiques the construction of the public/private dichotomy in relation to judges and judging, focusing specifically on its gendered implications. It asks how the public/private dichotomy either enables or constrains women from becoming and being recognised as judges. It does so by using three concepts which are marginal to traditional legal scholarship but which, nevertheless, illuminate the problem of gender equality on the bench in interesting ways. They are first, visual representations of judges in films and judicial portraiture; secondly, the concept of authority; and finally, the ideal of impartiality. Despite the influence of the public/private dichotomy, there are nevertheless indications that women judges actively contribute to the transformation of gendered legal discourses. Evidence for this ability is found by comparing the voting patterns of the Constitutional Court’s women judges and Justice Sachs in the gender cases, on the one hand, to their voting patterns in all cases, on the other hand. This comparison shows that these judges are more likely to write leading judgments or separate judgments in gender cases than they would in their opinions on the whole. Furthermore, they are far more likely to agree with one another, and less likely to agree with other members of the Court in gender cases, than in all cases. The inclusion, in my analysis, of Justice Sachs illustrates that women judges do not necessarily have to shoulder the burden of gender equality by themselves. Male judges are capable of understanding, accepting and expressing a feminist point of view and should, in fact, strive to do so.