“The Importance of Judging with Gender Perspective: Italy” by the Hon. Carla Marina Lendaro

The importance of judging with gender perspective at every level of jurisdictions, in Italy too, is an extremely vast topic which is exceedingly full of too many unsolved matters.

The regulation against discrimination in Italy is part of the Constitution, especially in its art. 51. The regulation is part of the civil law, which has been recently updated thanks to the innovative introduction in the corporate law of the so called Golfo-Mosca law, n. 120 of 2011, concerning listed companies, so this regulation is ultimately also part of the European Union Law.

Being an Italian magistrate, when speaking of gender gap, I cannot but start from the words of the Italian Constitution, because it allows us to reflect on genders and at the same time it allows us to use the gender issue to reflect on the Constitution.

The Constitution is grounded on innovative bases, in terms of “gender equality”.

It should be remembered that the Italian Constitution was promulgated at the end of the Second World War, during which, while men were fighting on the front, women enabled the country to move on, even though they did not benefit from fundamental rights. Until the Second World War women did not have the right to vote, most of them did not work nor study and they were subjected to their husband; they had to obey to him under the bounding of the patriarchal family. In this historical context the universal suffrage lays the foundations for the Constitution of the Italian Republic.

The right of vote has recognized women the full political citizenship and has acknowledged women’s political rights as inviolable within the Constitution.

Women became fully integrated in politics and got access to representative offices, for which could be fulfilled a democracy consciously inflected according to genders, that is able to acknowledge differences between genders and to treat them in a non-discriminatory way.

The presence of women in representative offices can impact the production of laws that define the status of women and men.

The Italian Constitution describes the difference in terms of “sex” (directly in the fundamental principle of art. 3) and in terms of “gender” in various articles that acknowledge a different status of men and women with respect to “work” and “family”, expressly in articles 36, 37, 31, and more indirectly in articles 29, 48 and 51 of the Constitution.

The first paragraph of art. 51 of the Constitution, which was updated by the Italian constitutional law no 1 of May 30th 2003, dictates that citizens of every gender, being they men or women, have access to public and elected offices in “equal” status, according to the applicable legal requirements, and it significantly states that “… in this regard, the Republic promotes equal opportunities among men and women”; this statement of the Constitutional Court recalls the principle of “substantial equality” (see below art. 4 of 2010 of the Constitutional Court).

By virtue of this law today, not only have the Court admitted “positive actions” for equal vote, but as a matter of fact, the Court has urged these to finally face and solve the “sub-representation” of women also in democratic institutions.

The constitutional reform of 2003 aimed at achieving and pursuing the objective of “equal opportunities” by adopting appropriate State measures.

It must be remembered that the following constitutional jurisprudence kept the anti-discrimination measures introduced with the law that aimed at enhancing the election of women inside of elective Assemblies. Furthermore, the decisions of the administrative jurisprudence concerning the composition of regional councils and municipal councils must be remembered, thanks to which it appeared clear that the “absence of women” in these public offices represented not only a constitutional violation, but also a symptom of malfunction of the system.

The absence or sub-representation of the female gender from decisional offices not only is against any fundamental principle of non-discrimination but it is also against the interest of these bodies, which in this way are not allowed to make decisions based on the dialogue of sensitiveness, different point of views and mentalities that are expressions of the different ways of being that belong to the two genders.

Constitutionalist professor Valerio Onida recalls that “gender equality” “has two faces: the two words equality and difference do not mean only eliminating unjustified disparities, but also enhancing such differences in a proper way”.

The famous constitutionalist noticed that currently this issue is only addressed in terms of access to public and elective offices – therefore only in the context of art. 51 of the Constitution, and he smartly observed that today it would not be even imaginable to be a man as compulsory requirement to become a magistrate, since this type of magistracy would express a male centred society and it would therefore result to be inadequate at representing the needs of our Society: differences and complementarity between genders are a resource and “…The best form of representation is the one which takes into consideration the differences in the body that has to be represented…”. A Supreme Council of the Judiciary (CSM) that today is (almost) exclusively made by men – as occurred for a long time – is not favourable, since it cannot represent the “diversities” of the Magistracy body and therefore also “gender diversity”.

This is with no doubt a political issue, being it the part that represents the Magistracy office in its best and fully way.

If we think about it, it did not just happen that in Italy, during the ’80, “non-ordinary” women judges took a seat in the Supreme Council of the Judiciary (Ombretta Fumagalli Carulli e Cecilia Assanti) only by a political initiative, and that the first “ordinary” female member appeared in the following council term already, in the person of the woman judge Elena Paciotti, a woman who besides of this record – which has never been reached later – until today was also the first and only woman judge who became president of the National Association of Judges (ANM).

Learning to acknowledge the differences is a need that meets the requirement of Justice, which represents a functioning factor as well as a resource of our system.

The equality stated in the Constitution does not only mean eliminating disparities in a proper way, it means something more.

It involves the intrinsic values of democratic and social growth.

Both men and women must be allowed to participate in a democratic State.

This is provided in various Italian laws: in law no. 215 of the 23rd of November 2011, that promotes a new gender balance in ‘Councils and committees of municipalities and in regional Councils”; in law no. 65 of the 22nd of April 2014 for the election of the European Parliament; in law no. 20 of the 15th of February 2016 about equal representation of men and women in regional councils; in the election law no. 165 of the 3rd of November 2017 about gender representations in the election lists for the Chamber of Deputies and for the Senate.

Previously I have also mentioned the corporate law, in which improvements have been made, once again, thanks to politics. In fact, an improvement in corporate law was made with law no. 120 of 2011, for which board of listed companies having a term that was about to expire on the 12th of August 2012 could have been elected again for a decade (up to 2021), “on condition that one fifth on the board members were made up of the sub-represented gender”, which is women, at the moment.

By this important and “positive balancing measure”, the legislators aims at raising awareness in the sub-represented gender that women not only have knowledge of corporate law and sector, but also the right attitude for it – and as we know this can only be proved “on the field”, from which we as women had been excluded until then – furthermore, this law has imposed women to take part in boards of directors in listed companies and to take responsibilities in order to assert their competences.

The challenge underneath was for our Country to be able, by the end of the decade, to contribute to the creation of value without resorting to a law in order to overcome the gender issue, since it would have been common in the society to nominate for public offices those who had the most suitable requirements for that role, no matter if male or female.

The change desired by the legislator has been implemented.

In these last eight years the female presence inside boards of directors has increased from 8% in 2009 to 36%, as per figures of June 2018, which means one out of three members (one woman and two men), however the leverage affect we were hoping for has not occurred yet.

A similar growing in female presence inside non-listed companies is still missing, and at the moment few listed companies have a number of women above the minimal requirement imposed by the “Golfo-Mosca” law. Most of all, there are very few women in executive boards of listed companies (only 11,9% in 2019) and the number of top management positions is undoubtedly ridiculous. And this is so, regardless the high pay gap that has been recently proved by reliable researches, which hit the headlines in national press: in fact, the Executive Compensation Outlook 2019, a study that analyses the pay of executive managers and board members of companies listed in the Italian stock exchange, in the conclusion stated that “despite the increasing presence of women in board of directors, in terms of pay an enormous gap still exists”.

The path of women has always been marked by steps forward and steps backwards, and it has moved forward after all despite the obstacles or periods of stagnation.

A recent example comes from the region Friuli Venezia Giulia, in the north-east of Italy, in October 2019, where for the third time the double voting for men and female, which can be considered as a mere chance of female election, was not applied in the Electoral Law of Friuli Venezia Giulia, while on the contrary the double voting has been introduced in the vast majority of Italian regions, with exception of only 4 of them. The discussion on the introduction of double voting in Friuli Venezia Giulia has been postponed on a long-term basis, almost one year later, to Summer 2020, during which a new revision of the entire Electoral Law in Friuli Venezia Giulia is planned.

Moreover, the arguments against the introduction of double voting appeared to be merely stereotypes and they were also backed by the only 6 women out of the 47 elected members (15% in total), who have strongly opposed this “positive” measure, which according to them could be considered as “non necessary” or “not wanted” by women anyway, despite the many statement in favor coming from women of the same region that work in universities, in business and associations, the women representatives of the regional committee for equal opportunity and the same municipal committee in Trieste.

Women must “be” there so they can “do”.

Women must certainly possess the requirements and professional skills, but they must also learn to team up and work together as a network, as the members of opposite gender can do.

The path of women shall continue anyway, as occurred in the most part of Europe, where inequalities have been overcome with a quite satisfying result.

According to the Treaty on the European Union (art. 157TFUE and art. 23 of the Charter of Fundamental Rights), “gender equality” is an objective that Member States must pursuit and implement by adopting any possible mean of “rebalance”.

During 2000, the European Parliament (Resolution B5-0180) urged every Member State to actively work towards a more equal presence of women and men in every institution and fixed the minimal number required to “at least one third” of women to be part in institutional offices; furthermore the European Parliament stated that in key sectors sub representation of women could be rebalanced by the introduction of female quotes as transitory measure to reach the objective.

In fact, on the 12th of March 2003 in the “Recommendation on balanced participation of women and men in political and public decision-making” the Council of Europe encouraged the Member States to reach 40% of female participation also by introducing specific measures “…aimed at promoting and supporting female participation in decision-making processes in political and public field”, and it urged them to publicly acknowledge that a peer representation of women and men, being they of different age or background, results in a stronger and richer democracy.

After that, in the Communication of 21st October 2010 entitled “Strategies for equality between women and men 2010-2015” the European Parliament reaffirmed the contents stated during the Beijing World Conference of Women in 1995, as far as concern access measures to power structures, decision-making processes and managing roles.

The goals achieved along 15 years as a result of these decisive interventions are listed in the 2017 report on Equality between men and women in the EU, by the European Commission.

From reading the report it is clear that the desired minimum standard of 40% of female presence in the European Magistracy was reached only by a few Member States, while the European average is lower: 33% in Supreme Courts, 28% in self-governing bodies, and 51% in Courts of First Instance.

These figures make us think.

It is important to consider that although women judges today in Italy represent more than half of the Magistracy (53,8%, 5189 women on 9612 total judges), the female presence in Cassation is still at 30% after more than 50 years from their first entry in the Magistracy, that occurred in 1963.

Furthermore, in the Italian Supreme Court no woman has ever been elected as First President or Deputy President, and only 5% of women judges have been elected as member of the Superior Council of the Judiciary (see below). Only recently, at the end of 2019, a woman was elected for the first time as President of the Italian Constitutional Court.

This is an objective figure that still points out the persisting gender gap inside the Italian Magistracy.

In order to have access in the Magistracy in Italy, women have paid the price of demonstrating to be as “good” as men, as “efficient” as men, as “similar” as possible to men: women sometimes have paid this price by conforming themselves to a male model, by making themselves less visible or sometimes by blaming themselves for the pregnancy or maternity period, which is often considered as a time that is taken away from your work and away from your workplace, where you try to get back to as soon as possible – as I did myself two decades ago and in other occasions.

Twenty years after the first access for women in the Magistracy, , women judges in first instance performed “every function” in the 90’. In 2015 the number of women exceeded half of men who took part in the Italian Magistracy. Today, I state this again, women judges represent 53,8% of the total and have an average age of 47 years, that is 5 years lower that the average age of men judges.

The winners of the last three access competition were women judges in 65% of cases, this female undertake is a solid result that gets back to thirty years ago in 1987, when 156 winners out f 300 were women judges.

A few more figures:

At the beginning of the 90’ in Italy, women judges with executive or deputy office were 2%; this number has grown and still keeps growing slowly.

In 2013 (after twenty more years) 17% of women held executive offices and 28% held deputy offices.

In 2018 women judges only held 27% of executive roles out of 434 directive offices is total, while men judges represented 73% of the remaining (more specifically three heads of office out of four were men), and they were rarely based in prestigious or big headquarters, while on the contrary they were usually established in small or medium offices or in a specific field of specialization (57% in Supervisor Law Courts and 42% in Juvenile Courts).

Moreover, in 2018 35% of women judges held deputy offices in a total of 690 positions (about one out of three). A worse scenario appears in prosecutor offices, where only 20% of women judges had a manager role (13% in Public Prosecutors Offices and the rest in Juvenile Courts, where they represented the 64%). These figures have been remarked even by former Minister of Justice Mr. Andrea Orlando.

No women – I repeat – has even reached a top management role in the Italian judicial system, nor occupies (or has ever occupied) the office of first president nor as general prosecutor in the Cassation – where only a few days ago a man again has been appointed – nor as anti-mafia national prosecutor.

A few more figures:

In the Italian National Association of Judges (ANM), until February 2012 no more than five women out of 36 members of the Central Governing Board (C.D.C.) have been appointed, and only one woman has been elected as its president (Elena Paciotti). Thanks to the important modifications of law in 2012 and to the introduction of shares of result fixed at 30%, we have experienced a significant change and now in the C.D.C. are seating 14 women colleagues in a total of 36 members.

In the Supreme Council of the Judiciary (CSM), two thirds of the members are elected by judges (art. 104 of the Constitution), while one third is elected by the Parliament. Since 1959 until today only 28 women have been elected on a total amount of 500 ordinary councillors. Only 5% of women judges had the chance to raise their voice and to express inside the representation body of the Magistracy their own point of view and the one of the female gender.

This is a severe damage for Justice as Institution and for the Constitutional self-governing body.

The change of the staff members inside of the self-governing body is due to the policy adopted during the office term 1981-1986 of the Supreme Council of the Judiciary, when for the first time, only after 22 years after its institution, two non-ordinary women judges were appointed (Ombretta Carulli Fumagalli and Cecilia Assanti).

We had to wait until the following term in the years 1986-1990 to witness the election of the first ordinary woman judge as member inside the Supreme Council of the Judicial (Elena Paciotti).

In the following two terms, no woman judge was elected.

This negative trend seemed to reverse in the term 1998/2002, when three women colleagues were elected, however in the following term there was no woman elected.

We had to wait until term 2006-2010 to find four women judges elected and non-ordinary women judges elected by the Parliament. As often happens, steps backward may follow steps forward. In fact, during the term 2010-2014 only two ordinary women judges out of 10 members got a seat, and no woman among non-ordinary members got elected. This situation became even worse in term 2014-2018, when only one colleague woman was elected, while two non-ordinary women judges were elected by the Parliament.

Lastly, the present term 2018-2022 counts with six ordinary women judges, but there is no ordinary women councillor.

As far as the Italian Constitutional Court concerns, this body is made of fifteen judges, of whom one third are appointed by the President of the Republic, one third by the Parliament in common session and the last third by the Supreme ordinary and administrative Courts (art. 135, first paragraph of Constitution). The Italian Constitutional Court at the moment counts with three women out of 15 judges, moreover, ever since the Court was founded in the 60’, the total number of women appointed is five on a total of 106 judges, of which four were appointed by the President of Republic and one by the Parliament, which makes it barely around 5%.

Only at the and of 2019, as I said, a woman reached the presidency of the Constitutional Court, that woman is Professor Marta Cartabia.

A few more numbers:

In July 2018 the Assemblies of the Italian Parliament were called to vote the non-ordinary members of self-governing bodies in ordinary and special magistracy, such as the Superior Council of the Judiciary (CSM), the Presidential Council of Administrative Justice (CPGA), the Presidential Council of Tributary Justice (CPGT) and the Presidency of the Court of Audit, in all of which only men have been appointed.

For 21 positions in total, 21 men have been appointed.

The Italian Association of Women Judges protested requesting the designations contemplate the different gender and therefore sensitivity, the presence of which is vital for the efficient care and guarantee of every judge and which is made possible only thanks to plural contributions, according to the principles of the Italian Constitutional Chart and the European Directives on equal gender representation, that has been transposed also in Italy. However, these protests came to nothing.

Similarly, protests from the Italian Constitutionalists belonging to the Association of Italian Constitutionalists and from female lawyers belonging to the network of the Italian National Bar Council came to nothing, the same as the protests of the president of the Marisa Bellisario Foundation together with the voices of female Senators, who presented a motion to adopt an anti-discrimination standard in order to remove the obstacles and overcome the persistent male monopoly that marks the election of offices in the different self-governing bodies, to promote and boost the protection of women’s rights and empowerment, and to finally guarantee the actual participation and access for women to leadership roles at all level of decision-making processes, of politics, economy and society.

A few more numbers, again:

It took 27 years for women to enter the Magistracy in Italy, for the Superior Council of the Judiciary (the CSM), as self-governing body of the Magistracy, to be aware of the gender issue. In response to this matter in 1992 the Magistracy Committee for Equal Opportunities was founded as positive measure aimed at eliminating indirect discrimination and for which the issue was brought to the surface. Thanks to this measure, Equal Opportunities Committees were founded in Judicial Councils in all Courts of Appeal and the Court of Cassation. Because of this, the lack of transparency and poor management in the practice of gender non-discrimination were made clear; such as in time-table scheduling, in the work operativity inside the offices, in professional training and sharing of knowledge among legal practitioners. However, prejudices and stereotypes are not definitively overcome yet.

As it has been said in previous occasions, in Italy we have not reached the awareness of the value of the female gender, that makes us richer in terms of human capital, asset and investments; which in other countries is already considered as a cultural fact.

Yet in the Magistracy today women judges are not fully acknowledged with the same professional skills, according to the data of the 2017 Gender Equality Commission issued by the Council of Europe.

I believe that it is now crucial to find solutions to overcome the current serious situation and to guarantee the full gender representation, complying with the dictate of our Constitutional Chart and the European standards.

We need to find the way to enhance the value of gender differences, “our” difference and that of “all of us” as women judges, who represent the majority inside the Magistracy.

As I said, learning to “acknowledge the difference” is a prerogative that meets the needs of Justice and it is a symptom of good functioning as well as a resource for the system.

Equality can be and must be reached quickly through the promotion of positive measures and operative tools aimed at enhancing gender peculiarities, as well as through the implementation of efficient equal opportunities aimed at giving the chance to all men and women to access the same level without disparity.

Over the last years, the Italian Association of Women Judges have tried to find a solution, in fact in 2017 our research became foundation of the Ferranti draft law no. 4512-2017 together with 57 petitioners. The draft law, which stated “the initial measures for gender rebalance” to be introduced in the existing electoral law (that does not provide opposed lists, but only individual nominations), did not guarantee a direct result in terms of “equal representation” for women and men of ordinary judges in the Supreme Council of Judiciary, but it aimed at increasing the number of women by introducing standards of the general principle, using the mechanism of gender double voting, which it had been already introduced and implemented as standard for political representation with positive feedback from the Constitutional Court in sentence no. 4 of 2010. It was not about shares of result, on the contrary it represented a serious rebalancing measure that respected the voter’s will. As a result of the gender double voting (just a share of chance), the maximum number of candidates for each college raised from one to two, in order to promote the opportunity to nominate two candidates taking into account gender equality. The draft law provided redaction guidelines for the list of candidates, for which candidates of different genders were listed alternatively, in order to make this intent more visible. Besides, it invalidated the second vote to candidates of the same gender, provision that was already sentenced as lawful according to sentence no. 4 of 2010 of the Constitutional Court), and it provided that in case of equal number of votes between candidates of the same gender, the less represented gender took precedence over the other.

The end of the parliamentary term in Winter 2017-18 denied the fulfilment of the parliamentary process.

In Spring 2018, following parliamentary hearings, the National Association of Judges and the Italian Association of Women Judges started a working table to draft an electoral law to be submitted to the Supreme Council of the Judiciary in the form of proportional representation, by introducing a sole national college or colleges for each macro area in equal number for judges and electors and by introducing shares of result.

At the moment Minister of Justice, Mr Bonafede, working on projects for a new electoral reform of the Supreme Council of the Judiciary but in the moment none of proposals seem to provide real positive rebalancing measures to overcome the sub-representation of female judges in the Supreme Council. This is a clear step backword in comparison with the Ferranti Bill +57.

I personally believe – and the Italian Association of Women Judges has the same opinion – that there is only one way possible to overcome this inequal situation inside the Supreme Council, which is the “temporary” adoption of shares of result.

The positive effects of this choice, if it will be made, will be there to be seen. In fact, positive effects are clear when analysing the experience in the Central Governing Board (CNC) of the National Association of Judges (ANM) (a 30% share), in the National Bar Council (CNF) in attorney (a 40% share) or in board of directors of listed companies (a 30% share). According to a study of the Bank of Italy, if shares of result were not introduced, we would need 70 years more to reach a perfect gender equality.

The Italian Magistracy seems to become a profession occupied mostly by women, the management and reorganisation of which we cannot shy from, provided that in case of absence of corrective measures for the assessment, selection or representation of judges, the gender gap that divides female and male judges in the boards of judiciary offices or in the board of the Supreme Council will persist or will not be reduced in the future.

The shares of result are proportional means to the purpose, but they are and need to remain just “temporary means” necessary to reach the full gender equality in the short term.

The introduction of shares is justified to remedy a serious condition of inequality, to create “good practices”, to generate value, and to solve in a definitive way the persistent and unbearable disparity, which according to sentence no 49 of 2003 of the Constitutional Court, can be referred back to “the persistence of the historical effects of a time period when women were denied political rights or had limited access to them, and to the persistence of well known cultural, social and economic obstacles that still today preclude women the actual participation in the political organisation of the country…”. This judgment appears in the openings contained in the sentence no. 4 of 2010 of the Constitutional Court, where the fundamental principle of actual gender equality in both national and regional political representation is clearly stated, by virtue of art. 3 second paragraph of the Constitution, which is linked to its arts. 51 and 117.

The shares are not to be considered as a sign of weakness of the woman, in fact they work as an acknowledgement of a deficiency in the system, that until now has not recognised the value, the professional commitment, the organisational skills and the ability of women at balancing the study and work life with the family and assistance duties, of which women in most cases are heavily burdened with.

These shares are not to be considered as “cages for protected species”, quoting some men and women; instead they are a temporary positive rebalancing measure aimed at allowing women, and female judges among them, to finally demonstrate to possess not only the skills but also the inclination for the role, that today are still not acknowledged.

These shares are not to be considered as a legacy of old suffragettes who survived all these years, as somebody ironically has said, instead they are a remedy that is largely used in Europe to overcome gender sub-representation and that has effectively worked every time.

We need a serious electoral law for the Supreme Council of the Judiciary as soon as possible, in accordance with our Constitutional Chart, that guarantees the presence of women, that remedies the detrimental selection mechanisms for women and that finally brings an end to the gender gap, by allowing women judges to be there, to participate, to be involved and to add their female voices to the Supreme Court and transform it into a body of full and complete democratic representation, as actual and real expression of all the different members.

It is now possible to make a cultural leap to overcome stereotypes and prejudices, to avoid the persistency on disparities and to enhance differences.

In order to do so, we need to stop using the singular and start using the plural, in both male and female gender, implementing a participatory democracy that can influence political processes or the attribution of values in an equal way.

The article was written by IAWJ member, Judge Carla Marina Lendaro. The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.