Un método manejable para juzgar con perspectiva de género en el orden de lo social

Abstract

Real and judicial equality do not walk hand in hand. Discrimination rooted in irrational cognitive illusions has mutated and adapted to the democratic world, becoming immune to the Law. Stereotypes help to justify gender-based inequality. The judicial system is unaware of the negative impact gender-based perceptions and prejudices have played in the administration of justice. Judicial decisions informed by preconceived beliefs and myths, rather than facts, can have harmful and dangerous consequences, denying access to equitable and prejudice- free justice. Thus, a gender-based approach to justice is needed to provide an equitable access to justice. To ensure the principle of real equity occurs, there cannot be neutrality. Potential barriers must be identified and removed to allow judging with a gender-based perspective as judicial reference criterium, in cases where asymmetric relations and gender-based stereotyping patterns are present. Judging with a gender-based perspective is not an easy task. This doctoral study composed of five chapters analyses how this approach, guided by the principle of gender mainstreaming, was administered in Spanish and international judicial contexts. It also develops a new methodology to judging with a gender-based perspective. The aim is to support those faced with the crucial responsibility of imparting effective justice informed by national and international standards and legislation. The first chapter introduces a philosophical framework for gender-based justice. This supported by legal feminist theories, questioning the objectivity of a judicial order unable to represent the universal reason, and only those holding the patriarchal power. The notion of “impartiality” is oppressive. A new model of equality vindicated in social difference is needed, to overcome the limitations of the social comparison model. Psychosocial studies and theories demonstrate how stereotypes, categorizations, and prejudices function at a cognitive level in the second chapter. We use these cognitive illusions as categorical truths and psychosocial scripts to label people. When these illusions go beyond our perceptive tissue, we identify them as our own way of thinking. A systematic vertical judicial argumentation approach is introduced in the third chapter. This technique is based in international, European y Spanish jurisprudence, supporting the imperative to judge with a gender-based perspective. The fourth chapter discusses the foundations of a justice with a gender-based perspective, informed by psychological theories and research. It identifies the need to include training addressing international anti-discriminatory law for anyone working now, or in the future, in the judicial sector. Various protocols and guides are explored to demonstrate how this judicial approach is applied in different countries. It identifies education as the antidote needed to help overcome the use of known or unknown gender-based categorizations. The fifth chapter explains how the new methodology proposed for judging with a gender-based perspective uses social order, as a reference, to facilitate the use of a gender-based judicial hermeneutic, able to be applied to all phases of the social process. This can be summarised in three concrete actions: a) identify using critical judicial analysis, b) correct using a gender-based perspective to justice, and c) compensate using a repairing, preventive, and transformative justice. Two gender based judicial maps are included in the Appendix to provide a visual synthesised summary. The study concludes there two different approaches to administering justice. The first, formal and mechanical, perpetuates systematic social gender-based asymmetries. While the other approach administers equitable justice with a gender-based perspective, contributing towards a more just and equitable society.