Women cannot achieve legal equality or exercise agency as members of the constitutional community unless they are able to own and enforce their country's constitution on both sides of the bench, as judges on the constitutional court, as counsel appearing before the court, or as applicants seeking remedies for breaches. It goes without saying that gender neutrality in the rules of judicial appointment or in access to the courts, as well as broad equality rights, are important. On their own, however, these are superficial measures. Even where express constitutional provisions appear favorable, inadequate constitutional opportunity structures or adverse processes can obstruct women's part in the justice system. Again, constitutionalized gender equity and agency require systemic attention.

Getting on the Bench

There is no rule-of-law democracy (as far as I know) with a constitution that expressly or directly prohibits the appointment of women to the judiciary. Indeed, it would be very surprising, to say the least, if one did exist (these days). However, there are ways in which constitutional provisions may indirectly discriminate against women for appointment or inhibit their nomination to the judiciary. Even with no discernible constitutional limitations or inhibitions (express, implied, or apparent), a constitutional court on which no, or very few, women sit or have ever sat is a matter for concern; even more than this, it is constitutionally “suspect.”