More courts want to postpone the decision on gender equality – 09/16/2023 – Frederico Vasconcelos

Presidents of 27 state courts asked the CNJ (National Council of Justice) to remove from the agenda of this Tuesday’s session (19) the judgment on ways to encourage gender equality in the Judiciary.

In a technical note, the Council of Presidents of the Courts of Justice of Brazil (Consepre) adheres to the position of the TJ-SP, approved in the last session of the Special Body on the proposal of the general inspector of the State of São Paulo, judge Fernando Torres Garcia.

The São Paulo court asked the president of the CNJ, Minister Rosa Weber, to postpone the debate to improve the proposals, allowing the courts to give their opinion individually on the draft resolution.

The list is headed by the president of Consepre, judge Carlos Alberto França (TJ-GO). Judge Ricardo Mair Anafe, president of the TJ-SP, is one of the signatories. The TJ-SP letter was signed this Thursday. Consepre’s technical note, the following day.

Of the 27 presidents who signed the note, 6 are women (they command the courts of Rio Grande do Sul; Pará; Mato Grosso; Amazonas; Acre and Tocantins).

The Consepre document cites the Constitution’s “eloquent silence” on gender criteria for analyzing seniority and merit. It states that “it is not up to the CNJ to create a new principle in filling vacancies in the career judiciary for the second degree courts”.

There would be a new rule to promote the criteria of seniority and merit, with the determination to draw up lists differentiated by gender.

Consepre states that “changing the procedure without proper guidance in the legal system or an adaptation period can lead to injustice”.

The TJ-SP stated in its note that, “if the intention is to form a list of female judges only, alongside another, mixed judge, promotion is permitted, particularly by seniority, of judges with less experience than another, directly violating the constitutional criterion”.

To avoid “the risk of consolidating irreversibly unfair situations”, the TJ-SP deems it necessary “greater reflection and debate on the extremely important topic, which profoundly affects the professional life and career ideals of all magistrates in the country”.

Movement in support of the CNJ

Magistrates and magistrates participating in the National Movement for Parity in the Judiciary wrote an “Open Letter to Brazilian Society”, expressing “their full and unrestricted support for the affirmative action proposed to amend Resolution No. 106/210 of the CNJ.

The letter already incorporates criticisms of the TJ-SP technical note:

“By way of example, the Court of Justice of the State of São Paulo – which on this date released a technical note signed by its President and its Inspector stating that there is no gender discrimination in that Court – has only 10% of female judges out of 90 % of male judges in its composition, the lack of gender perspective in making such a statement seems clear.”

First item on the agenda

The procedure that will be judged by the CNJ is the first item on the agenda. The rapporteur is counselor Salise Monteiro Sanchotene, supervisor of the Committee to Encourage Women’s Institutional Participation in the Judiciary of the CNJ.

It must present an opinion from jurist Daniel Sarmento, professor of Constitutional Law at UERJ, entitled “Women in the Judiciary and Gender Discrimination: creation of an affirmative action policy for female judges to have access to lower courts as a constitutional imperative”.

Sarmento understands that the CNJ has the power to establish, through its own normative act, a policy to correct the serious asymmetry between the sexes in the composition of second degree courts.

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