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How do judges decide issues of equality? While prior scholarship demonstrates that judicial attributes such as partisan identification, gender, race, age, and career backgrounds help elucidate judicial decision-making, considerably less attention has been devoted to how judicial empathy may influence or condition judicial decision-making. Such scholarly attention is especially lacking in the study of courts outside of the United States. To bridge this critical gap, we examine how judicial empathy affects decision-making behavior by analyzing data from the Supreme Court of Canada from 1982 to 2015. We find compelling evidence that trailblazer women’s unique personal experiences exert a strong influence on judicial behavior within the Canadian Supreme Court. In fact, our findings demonstrate that the effects of judicial empathy extend across a broader array of discrimination cases in Canada compared to previous findings on the American courts. We find that trailblazer women have a greater propensity to vote in favor of discrimination claimants compared to their male peers. Normatively, these effects manifest as judicial empathy in discrimination cases where trailblazers themselves likely faced upward mobility challenges.
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Reassessing Gender Neutrality
Since the 1970s, advocates have used the termgender neutralto press for legal change in contexts ranging from employment discrimination to marriage equality to public restroom access. Drawing on analyses of all Supreme Court cases, federal courts of appeals cases, and Supreme Court amicus briefs in which the termsgender neutral/neutrality,sex neutral/neutrality, orsexually neutral/sexual neutralityappear, this study examines how US courts have defined gender neutrality and what the scope and limits of its legal application have been. We find that the courts have defined gender neutrality narrowly as facial neutrality, but nonetheless that this limited understanding has transformed some areas of the law, even if it has had little impact on others. Our analysis confirms earlier feminist skepticism about the sufficiency of gender neutrality to guarantee equality but also points to areas in which the law has yet to exploit the idea's significant potential to address discrimination on the basis of sex, sexual orientation, and gender identity.
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- Award ID(s):
- 1734340
- PAR ID:
- 10373471
- Publisher / Repository:
- Cambridge University Press (CUP)
- Date Published:
- Journal Name:
- Law & Society Review
- Volume:
- 54
- Issue:
- 1
- ISSN:
- 0023-9216
- Format(s):
- Medium: X Size: p. 7-32
- Size(s):
- p. 7-32
- Sponsoring Org:
- National Science Foundation
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