Justifying Gender Equality on the Bench: WhyDifference Won't Do

The case for gender equality on the bench wouldseem too uncontroversial to requirejustification. Yet the practical realities ofthe slow progress of women towards equality ofparticipation both quantitative and qualitativein the judiciary testifies to the continuingneed to argue the case for change. To date, theprimary rationale for promoting gender equalityhas been that women will bring a uniquecontribution to the bench as a result of theirdifferent life experiences, values andattitudes. Such arguments derived fromdifference theory have had a strong appealsince they appear to give legitimacy to theundervalued attributes traditionally associatedas feminine while also promoting the meritprinciple by claiming to improve the quality ofjustice. However, this article argues thatdifference theory arguments are theoreticallyweak, empirically questionable andstrategically dangerous. Instead, it argues forthe adoption of a rationale for gender equalitybased on equity and legitimacy; that equalparticipation of men and women in the justicesystem is an inherent and essential feature ofa democracy without which the judiciary willlose public confidence. This approach, thoughless immediately appealing, is ultimately moresound.