ELLA Policy Brief: Latin American Advances in Incorporating a Gender Approach in National Court Rulings

Abstract

The main objective of this brief is to highlight the possibilities and potential for adopting a gender approach to justice and women’s rights. It focuses on three resolutions made by national courts in Mexico and Colombia which have had significant impacts on the interpretation, recognition and protection of women’s rights in both law and practice. By providing a new lens through which to evaluate the historical and social context of discrimination and inequality, the gender approach is helping to change traditional legal and societal structures that have historically maintained gender stereotypes and perpetuated asymmetrical power relations. This Brief identifies four common strategies used by Latin American courts to mainstream gender perspectives into judicial rulings, and provides specific examples of cases to illustrate how these strategies have been employed. These mechanisms will be of interest to judges, lawyers, human rights activists and civil society organisations using litigation as a tool for bringing about social change in favour of human rights. The brief also identifies enabling factors from the region and summarises key lessons. Key Lessons: The Latin American experience shows that it is possible - though slowly and over time - for national supreme courts to incorporate gender paradigms and standards on human rights as a common practice when judging cases. As part of the state, the judiciary is mandated to take action towards the advancement of women’s human rights. This means that within the fulfilment of its mandate it must consider the historical discrimination and subordination of women and, in fact, use the law to reduce and eliminate gender stereotypes. This legal responsibility has given judges in Latin America the space within which to implement innovative practices like a gender approach, thereby helping to reduce gender gaps in access to justice. Rulings from the highest tribunals have a strong impact on lower courts’ jurisprudence, which is why it has been so effective in Latin America when they have adopted a gender perspective to broaden the scope of protection of rights. (Available in English and Spanish.)