CNJ actions for gender equality are brought to justice – 03/27/2024 – Frederico Vasconcelos

The prediction that actions to encourage gender parity in the Judiciary encouraged by the CNJ (National Council of Justice) would be prosecuted was confirmed in the country’s largest state court.

A group of 20 judges filed, last Monday (25), a writ of mandamus at the São Paulo Court of Justice to try to cancel the competition for a judge position based on the criteria of merit exclusively for women.

They question the act of the current president, judge Fernando Antonio Torres Garcia, who determined the opening of the competition, last January, in accordance with Resolution No. 525/2023, approved last September by the CNJ.

“It must be asked, with due respect, whether the Superior Council of the Judiciary [do TJ-SP]did you check, where and what are the provisions in the Statute of the Judiciary, which deals with the promotion of magistrates and which granted the CNJ the authority to provide for promotion rules by gender?”

The request for an injunction was denied this Wednesday (27) by the rapporteur, judge Campos Mello, who did not see any illegality or abuse of power in the act.

Sensitive issues

Judges who signed the request maintain that it is not a moral lynching, as they would have no other option than to question the court to express what they believe to be their right.

“It is not possible to take the claim directly to the Federal Supreme Court, because the mandatory action is not being filed against the CNJ, and the petitioners do not have the legitimacy to file a direct action of unconstitutionality with the STF.”

The judges question the effect of the CNJ resolution.

“The concrete act is violating the clear and certain right of each petitioner, since due to the fact that he is male, he is excluded from the promotion competition, and prevented from exercising what is guaranteed by the Organic Law of the Judiciary and the Federal Constitution itself “.

They emphasize that “no censure is being made of the political and social movement that seeks to guarantee and effectively guarantee the rights and opportunities for women, in the exact same way they are granted to men, in the various activities of life.”

Highlight an excerpt from the opinion of lawyer Ives Gandra Martins:

“If merit is a requirement required for the good of society, since the better the magistrate, the better the service provided, it cannot be provided, it cannot be overcome by a criterion that seeks to benefit the gender, that is, for the personal benefit of the judge.”

The judges were represented by lawyer Samuel Alves de Mello Júnior. A retired judge, he was president of the Public Law Section of the TJ-SP.

Background to the dispute

It was the initiative of Torres Garcia, still inspector general at TJ-SP, to suggest to the then president of the CNJ, minister Rosa Weber, to remove from the agenda the proposal of the rapporteur counselor, Salise Sanchotene, to encourage greater female participation in the Judiciary. The São Paulo court claimed that it intended to avoid “the risk of consolidating irreversibly unfair situations”.

Approval was obtained from the CNJ with the vote of São Paulo judge Richard Pae Kim, who considered it insurmountable to introduce affirmative gender policies in promotions based on seniority criteria, but saw no constitutional obstacle to promotions based on merit.

The result boosted the National Movement for Parity in the Judiciary, created to maintain mobilization and encourage new gender affirmative actions, and the Sankofa Collective, which defines itself as feminist and anti-racist. Sankofa brings together 166 female judges from São Paulo. Judge Salise Sanchotene participates as an honorary member.

The Parity Movement believes that the TJ-SP will comply with the CNJ resolution. In a note, it states that “although we defend access to justice and the right to petition as fundamental rights, the notice [do concurso questionado] complies with the constitutional dictates of guaranteeing equality for all”.

“The STF has already recognized that the CNJ has the competence to issue primary norms that implement constitutional principles. It also decided that affirmative actions are constitutionally legitimate, including with regard to gender, as they promote material equality.”

For Sankofa, “recognizing the numerical disparity between men and women in the courts of all branches of justice in Brazil and understanding that this situation will not be resolved over time, a step was taken to correct this inequality. The TJ-SP came out on top, being the first in the country to open a promotion competition exclusively for female judges, based on the merit criterion”.

“It is not up to us to comment on the writ of mandamus itself, but rather to regret that the path to achieving material equality between men and women, especially within the House of Justice, is still bumpy.”

First alerts

Judge Maria Lúcia Pizzotti, from the TJ-SP, and the former national inspector of justice, Eliana Calmon, predicted the judicialization of the CNJ’s initiatives.

Pizzotti said that “promotion based on identity criteria will harm female judges, who have never been favored because of their gender, as well as male magistrates who will now be passed over, in violation of the seniority list.”

“Being a woman is neither a merit nor a demerit for promotion in a competition. There is no such rule in the Organic Law of the Judiciary. To be included, a bill edited and approved by the Legislative Branch is required, and not an administrative rule.”

The former national inspector said that “women need to understand that fighting cannot help them in a career that has nothing to do with sex but with merit.”

“The fact that there are more men than women in the courts is a reflection of a past prejudice that exists in any and all paternalistic and patrimonial societies. This deviation is gradually being removed, reducing the unequal number between men and women.”