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Topic four - Gender diversity in the criminal justice workforce
The Module, so far, has approached the topic 'Gender in the Criminal Justice System' from the standpoint of persons in contact with criminal justice institutions, particularly women, girls and LGBTI persons, who may be at increased risk of experiencing a violation of their rights due to discriminatory assumptions or practices on the basis of their gender, sexual orientation or sex characteristics.
An important facet of this topic is recognizing that the composition of the criminal justice workforce has an impact on the treatment of individuals who come contact with the criminal justice system, whether as accused persons, prisoners, witnesses, or victims. It is unrealistic to expect that criminal justice institutions can deliver fair treatment to all such persons if the composition of the workforce is not representative of the diversity in the broader population, and/or where discriminatory human resources policies persist. It is thus imperative that criminal justice institutions provide equal opportunities to all persons on the basis of their abilities and qualifications, irrespective of their sex, gender or sexual orientation. This section provides an overview of key issues relating to gender diversity in the criminal justice workforce, with a particular focus on the judiciary and the law enforcement.
The importance of achieving gender equality in the workforce is enshrined in international human rights instruments, most notably in the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) (GA Resolution 34/180) which stipulates "State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights" (1979, Article 11(1)). More concretely, the Beijing Declaration and Platform for Action (1995) called governments, international and national organizations and other relevant stakeholders to combat gender-based violence and achieve women's empowerment and full participation in all spheres of society, which also includes the criminal justice sector. The United Nations General Assembly urged Member States to ensure gender-equitable representation in the police and other agencies of the justice system, particularly at the decision-making and managerial levels ( GA Resolution A/Res/65/228, Annex para. 16k). Similarly, the Bangkok Rules call for capacity-building measures for women staff that also include access to senior positions with key responsibility for the development of policies and strategies (2010, Rule 29), equal access to training as male staff (2010, Rule 32), as well as a clear and sustained commitment at the managerial level in to prevent and address gender-based discrimination against women staff (2010, Rule 30). The United Nations Security Council, in its landmark Resolution 1325 on Women, Peace and Security; stressed the importance of the inclusion of women in all levels of decision-making processes relevant to prevention, management, resolution of conflict; as well as maintenance and provision of peace and security (preamble). Furthermore, the Yogyakarta Principles (2017), although not binding, call on States to "Eliminate any discrimination on the basis of sexual orientation or gender identity to ensure equal employment and advancement opportunities in all areas of public service…, including serving in the police and military, and provide appropriate training and awareness-raising programmes to counter discriminatory attitudes" (Principle 12(2)).
Despite the existing international legal and normative framework, criminal justice institutions, especially police services, continue to remain largely male/hetero male dominated. UNODC regularly collects data on number and percentage of women police and judges in countries around the world. As per data compiled in September 2018, the percentage of women police officers across all countries studied varies between three and 37 per cent; with the rate in most countries sitting between ten to 20 per cent. Table 1 below shows the rate of female police officers in selected countries.
Globally, the proportion of female judges seems to be much higher, in comparison to female employment in law enforcement. However, the variance between countries is also much greater. By way of example, while the rate of female judges in Slovenia and Latvia is 78 per cent, in Tajikistan and Azerbaijan the rates are 16 and 12 per cent respectively. Table 2 provides the distribution of the percentage of female judges in selected countries around the world.
As the data shows, there is a need for enhancing gender diversity and mainstreaming within the criminal justice workforce, especially in law enforcement agencies. To that end, criminal justice institutions should adopt recruitment strategies to ensure gender diversity among the staff, enhance retention and merit based professional development for persons of all genders and provide a safe working environment for all, particularly those at risk of discrimination such as women and LGBTI (DCAF, 2015). While it is beyond the scope of this Module to provide a detailed discussion on each human resources management stage (recruitment, retention, promotion), the remainder of this section provides an overview of selected issues relating to gender diversity.
To improve gender diversity, criminal justice institutions may implement a range of measures including setting quotas or targets, reviewing selection criteria to eliminate gender bias (for example adjusting physical/fitness requirements for male and female police applicants), and developing targeted recruitment campaigns to hire underrepresented groups (Denham, 2008, p. 12).
By way of example, the European Court of Human Rights (ECtHR) adopted a gender diversity measure, by asking member states to put forward at least one candidate from 'the underrepresented sex' to the shortlist of three candidates, sent to ECtHR for selection. As a result of this measure, the rate of female judges has increased from 26 per cent in 2005, to about 33 per cent currently (PACE, n.d.; Quast, 2008, p. 14).
It should be noted, however, that establishing quotas for underrepresented groups is not a permanent solution. Measures of this kind should be applied temporarily, to correct for past or current forms of discrimination and exclusion, with the expectation that increased workforce diversity be sustained through an array of mechanisms that also prioritize the well-being of all staff and the proper functioning of the organization (Please note: the application of 'special measures' including quotas, are acknowledged in international legal instruments, such as ICERD). Furthermore, quotas should be designed and implemented with utmost care, so that they do not they do not jeopardize merit-based recruitment or be perceived as doing so. In contexts where the need for quotas is not communicated well, or where the design and implementation of gender quotas is not conducted transparently, backlash from the law enforcement establishment might ensue, on the assumption that gender quotas undermine merit-based recruitment and jeopardize the effectiveness of police services. Apart from quotas, criminal justice institutions can apply other mechanisms such as establishing recruitment 'targets' for short and midterm; launching special programmes to provide coaching or mentoring for prospective candidates from underrepresented groups.
Another key issue for recruitment is to ensure that gender diversity is observed across all levels of the institution, and not only at the lowest ranks. Hiring more female officers only at junior ranks (patrol units for example), and not at supervisory and decision-making levels would not effectively serve the purposes of gender diversity and mainstreaming. It is therefore important to collect, review and analyse recruitment and retention data disaggregated not only by gender but also by rank.
Maintaining gender diversity within criminal justice institutions require further measures once underrepresented groups are recruited. Such measures could be broadly divided into four as mainstreaming gender considerations in (i) physical facilities and equipment, (ii) human resources management policies (iii) training (iv) sexual harassment policies and complaints mechanisms.
Facilities of police services and courtrooms should be designed and, if necessary, adapted to be gender inclusive. This may include, inter alia, building gender-neutral bathrooms, or ensuring that uniforms and equipment are suitable for female employees.
To ensure fair treatment to persons of all genders, criminal justice institutions should periodically review human resource policies with a gender perspective. These include reviewing maternity/paternity leave schemes; flexible or family friendly work arrangements, initiatives for supporting child-care; as well as merit-based tasking and career development. For example, in 2014, the Sierra Leone Police (SLP) established a Gender Unit, which was mandated to review all SLP policies from a gender perspective; and to update its overarching Gender Mainstreaming Policy accordingly (Ibrahim, Mbayo and McCarthy, 2015, p. 58). Bastick (2011) provides a gender self-assessment tool for the police, armed forces and judicial institutions.
Given that human resources policies encompass the appointment and promotion of staff, it is important that policy and practice are underpinned by a genuine commitment to achieving both diversity in the workforce and gender equality. A considerable risk, with respect to gender diversity and underrepresented groups in criminal justice institutions, is the ' tokenism', which refers to the practice of hiring or appointing a person belonging to an underrepresented group, for the instrumental purpose of deflecting criticism and give the impression of diversity. An example would be including a low-ranking female judge, into a judicial council of typically higher ranking male judges. In such cases, it is nearly impossible for that female judge to have any meaningful impact, and any failure would only strengthen female stereotypes (Ibrahim, Mbayo and McCarthy, 2015, p. 55). There is an established body of scholarship on the concept of tokenism (Kanter, 1977; Zimmer, 1988) and particularly, gender and tokenism in law enforcement (Stroshine and Brondl, 2011).
Another risk associated with the tasking and appointment of female and LGBTI staff, is to 'reduce' their abilities to issues related to their gender; or task them with roles that are traditionally perceived as 'soft'. Examples would be appointing female officers with relatively 'less risky' and more social and communicative tasks such as community policing units, neighbourhood dialogue and outreach posts, responding to domestic violence cases and so forth; instead of assigning them to counter-terrorism, organized crime, and criminal investigation departments.
Female and LGBTI staff associations in criminal justice institutions play a key role in countering such acts of tokenism or bias-based assignments; through advocacy, lobbying, and mentoring of groups they are representing (Gaanderse, 2010). At the international level, the International Association of Women Judges notes the importance of issues such as the empowerment of women on the bench, education, equal access to justice providing networking facilities, and tools to strengthen leadership and bring judges together (UNODC, 2018).
An important measure to ensure gender-inclusive criminal justice workforce is to provide regular gender training to all staff, to enhance their understanding and awareness of gender related issues. This includes training on various forms of gender identity and expression and sexual orientation, different types of direct and indirect discrimination towards women, girls and persons who identify as or perceived to be LGBTI, and common stereotypes and bias based on gender. Training of this kind can help criminal justice officials identify the role that gendered policies, practices and attitudes play in the day to day operations of their workplace, and in the broader functions of the criminal justice system.
Lastly, criminal justice institutions should put in place comprehensive policies to prevent, detect, and investigate all forms of gender-based harassment and violence within the respective institutions, and among staff. There should be safe and confidential mechanisms for criminal justice officers to internally report gender-based discrimination, harassment and violence that they encounter or witness.
In addition, Module 5 on Police Accountability, Integrity, Oversight refers to gender diversity in policing, with particular focus on LGBTI persons.
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