Breaking Bias: Entry Points for Gender Stereotypes in Judicial Decision-Making
By Beate Streicher
As articulated in the Council of Europe’s (CoE) Gender Equality Strategy 2024, while progress has been made, effective gender equality in Europe remains elusive (para. 2). The rise of anti-gender movements in Europe is not only attacking women and LGBTIAQ+ persons but also challenging the very concept of universal human rights (Denkovski, Bernarding, and Lunz, 2021, p.15, see International Journal of Law in Context on right-wing legal mobilisation). In this societal climate, it is crucial that the rights of persons affected by gender stereotypes are upheld in courts.
As part of my re:constitution project, I investigated the impact of stereotypes related to gender identity and expression, sex characteristics and sexual orientation on judicial proceedings and decisions within the European context and beyond, applying an intersection perspective (on intersectionality see Kimberlé Crenshaw, 1989). The multimethod approach combined an analysis of key cases from the European Court of Human Rights (ECtHR) dealing with gender stereotypes, recommendations of international monitoring bodies such as the Committee on the Elimination of Discrimination against Women (CEDAW) and the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), and elite interviews with eight experts (six identifying as female and two as male) involved in CoE cooperation projects dealing with the topic such as the projects on Women’s Access to Justice (WAJ) and the respective courses from the Human Rights Education for Legal Professionals (HELP) Programme.
The HELP courses on WAJ and Violence against Women (VAW) conceptualise justice as a “chain,” including police investigations, prosecution, sentencing and remedies, where the failure of any component undermines the entire system. The following analysis extends this approach by critically examining various stages of judicial decision-making and highlighting vulnerabilities to biases. For a similar approach, see the Protocolo para Juzgar con Perspectiva de Género by the Mexican Supreme Court. While current CoE projects on gender stereotypes do not explicitly use entry points as an analytical tool, the examples provided by experts can be mapped onto these frameworks, potentially informing future capacity-building initiatives.

Programme of the Council of Europe, HELP Course on Gender Equality and
Gender Mainstreaming, Module 0,
https://help.elearning.ext.coe.int/course/view.php?id=7172
I have identified entry points in three overarching areas: the assessment of facts, the application of the law, and general issues. They should neither be perceived as exhaustive nor mutually exclusive.
- Gender Stereotypes in the Assessment of Facts
In relation to the assessment of facts, I have identified five primary entry points: (1) the failure to consider the social, political, and cultural context of the case; (2) the omission of social identities and grounds of discrimination of the parties involved; (3) gender insensitive courtroom management; (4) inadequate investigation of the facts; and (5) the influence of stereotypes on the analysis of facts and evidence.
(1) The failure to account for the social, political, and cultural context involves an insufficient examination of evidence and a lack of recognition of potential power imbalances or structural inequalities between the parties involved in the dispute. A pertinent example is Semenya v. Switzerland, 2023 (referred to the Grand Chamber), in which a female athlete with intersex characteristics was required to lower her natural testosterone levels according to the International Association of Athletics Federations’ regulations, a decision upheld by the Court of Arbitration for Sport (CAS) and the Swiss Supreme Court. Third-party interveners at the ECtHR highlighted that intersex individuals, particularly from the Global South, are disproportionately affected by such regulations (see para. 148, 149). It is concerning that the ECtHR focused on rather procedural aspects and did “not find it necessary to consider the question whether the applicant can also rely on her race, ethnicity or “colour”” (para. 159), failing to consider the intersectional dimensions of the case.
(2) The failure to consider the context of a case can be closely linked to the omission of the social identities and grounds of discrimination of the parties involved. In the case J.I. v. Croatia, 2022, national courts failed to carry out an effective investigation into alleged death threats against a young Roma woman, not only reproducing stereotypes regarding victims of gender-based violence but also overlooking the risk of intersecting discrimination related to her Roma identity and age. Female expert 6 mentioned examples of misogynist forms of violence that specifically affect queer women, such as so-called “corrective rape” which is ”triggered by the intention to punish, or so-called ‘correct’ a woman from her perceived deviance in either gender identity or sexual orientation.” Male expert 2 criticised the lack of attention in family violence cases, noting that courts often treat incidents of violence as equally mutual: “He hit her and she hit him. So they both participated,” disregarding the history of violence against the women.
(3) In relation to gender insensitive courtroom management, the case of Y. v. Slovenia, 2015, provides several examples where the domestic courts failed to ensure the necessary respect for the personal integrity of a victim of repeated sexual assault. The criminal proceedings were marked by several prolonged periods of complete inactivity and lasted over eight years (para. 99) and the perpetrator was permitted to engage in cross-examination, during which some questions and remarks were “not aimed only at attacking the victim’s credibility but were also meant to denigrate her character” (para. 108). Several experts confirmed that in gender-based violence cases, the treatment of victims and defendants in the courtroom can be highly problematic and they highlighted the risk that “the attitude of a legal professional towards them can actually bring a second layer of victimisation to the person” (female expert 5). Female expert 6 added that when deciding on hate crimes related to sexual orientation, gender identity and expression and sex characteristics (SOGIESC) there is the risk that judges dismiss or discourage victims from explaining what really happened by “not taking them seriously or themselves, using problematic, inadequate language.” Also, magistrates in asylum cases of LGBTIAQ+ applicants might ask “all kinds of very inappropriate, intrusive questions” (female expert 6).
(4) The failure to adequately investigate facts is exemplified by the case of Beizaras and Levickas v. Lithuania, 2020, in which the national courts declined to investigate or prosecute individuals responsible for homophobic harassment, relying on stereotypes about the victims and perpetuating the narrative of perpetrator-victim reversal (see para. 21 et seq.). Female expert 6 explained such a failure “also then extends to the entire community. So this is what breaches the trust.” Female expert 1 remarked that in gender-based violence cases, judges must ensure that evidence collected pre-trial is reviewed thoroughly, and that experts are brought in to clarify certain aspects, thus sparing victims from the often re-traumatizing task of repeatedly recounting their experiences.
(5) Stereotypes influencing the analysis of the facts and evidence occur when an adjudicator, based on a gender stereotype, considers something (more) relevant when it is not, or less/not relevant when it actually is. This was a recurring theme in elite interviews, particularly regarding the credibility of victims in VAW cases (see also CEDAW General Recommendation 33, 2015, para 33). The case of Luca v. Republic of Moldova, 2023, illustrates this, and female expert 1 added that in gender-based violence cases involving child custody disputes, judges often perpetuate the stereotype that women may try to alienate children from their fathers, despite empirical evidence debunking this assumption. Male expert 2 explained: “And whenever you can reinstate or even amplify the negative consequences of a female gender through some other discriminatory ground, you’ll see that happening. It’s financial situation, health, disability. They all operate as amplification or proxy for, you know, discriminating against women again.”
This analysis reveals that gender stereotypes significantly affect the assessment of facts in judicial proceedings, with serious consequences for decision-making.
2. Gender Stereotypes in the Application of the Law
Two main entry points emerge regarding the role of gender stereotypes in the application of the law: (1) the application of laws that themselves reinforce gender stereotypes, and (2) the gender-blind application of laws.
(1) Firstly, there are situations where courts either fail to recognise that a law perpetuates gender stereotypes or, despite recognising it, continue to apply the law. An example is the case of Bayev and Others v. Russia, 2017, in which a law criminalised the promotion of homosexuality among minors, reproducing the stereotype that homosexuality is dangerous and immoral. The national courts upheld this law, perpetuating the associated gender stereotypes. The case of Hämäläinen v. Finland, 2014, involved a transgender woman seeking legal recognition of her gender without dissolving her marriage. Finnish law required her to convert her marriage into a civil partnership for recognition. The stereotyped, cisnormative logic of the official registration system disregarding transgendered experiences because her request did not conform to societal expectations of what it means to be a man or woman was not challenged neither by national courts nor the ECtHR (see Carvalho de Mello on the ECtHR’s reasoning). As Judges Sajó, Keller and Lemmens pointed out in their dissenting opinion, society’s problematic revulsion concerning transgender individuals is not a normative idea that should be supported by the law (para. 13). Female expert 6 referred to recent opinions of the European Commission for Democracy through Law (Venice Commission) on “those very problematic so-called anti-gay propaganda laws in Georgia and Hungary.” She pointed out that the Venice Commission not only stated that they disregard protections of the European Convention of Human Rights (ECHR), “but also they are tailored to fuel stigma and fuel hatred against a community. (…) So you can totally read between the lines that it’s all about not allowing for harmful stereotypes and prejudice to prevail.”
The case of Beeler v. Switzerland, 2022, presents another example, in which the national law discriminated against widowers with children over 18 by offering less favourable benefits compared to widows. The Swiss court recognized this gendered discrepancy but justified the application of the law due to the restrained nature of its powers and the separation of powers doctrine. Female expert 4 pointed out that international legal standards can also perpetuate gender stereotypes: “Migration is really an area where we have standards which date back from a time when the whole issue of gender equality, violence against women, women themselves were absolutely not on the agenda. So we have, for example, a refugee convention which doesn’t speak about gender-specific persecution.” She stressed the need for an update of such standards and highlighted the importance of policy documents and case law in the meantime for achieving a gender-sensitive approach. Female expert 6 explained that this approach much go beyond a binary understanding of gender.
(2) Experts concurred that while laws may be less overtly discriminatory today, the issue often lies in their application. One pertinent question that judges could ask is whether the legal framework provides mechanisms to address asymmetries in relationships and structural inequality, which may have underpinned the case at hand. The gender-blind application of laws is illustrated in J.D. and A v. the United Kingdom, 2019, in which national courts reduced housing benefits without considering the fact that the applicant benefited from a security scheme because of her abusive ex-husband, as well as the intersection between gender and class. Moreover, gender stereotypes often lead to insufficient remedies. For example, in the case of Carvalho Pinto de Sousa Morais v. Portugal, 2017, domestic courts failed to provide the applicant with adequate compensation for an operation of her genitalia, reproducing stereotypes about women’s sexuality and age. Female expert 5 also referred to the case Özpinar v. Turkey, 2010, in which the dismissal of a female judge had been based, inter alia, on her alleged close relationships with several men and her appearance, as “a case that is flagrant when it comes to biases”.
Many experts also explained that there is often a misconception regarding the application of laws on the rights of victims in gender-based violence, human trafficking or other crimes. Judges tend to believe that protecting victim’s rights takes those rights “away from the perpetrator” (female expert 1). However, “they are two parallel and equally important processes” (female expert 1) and it is important to recognise that victim’s rights are reflected in several articles of the ECHR (female expert 5).
These examples underscore the significant role gender stereotypes play not only in the assessment of facts but also in the application of the law.
3. Stereotypes Impacting Judicial Decision-Making More Broadly
Beyond the application of specific legal provisions, gender stereotypes also influence the broader decision-making process. The key areas identified include the language used by judges, the reproduction of stereotypes by state and other actors, and the accessibility and safety of proceedings for women and LGBTIAQ+.
(1) In J.L. v. Italy, 2021, the ECtHR highlighted that the language and arguments used by the Italian court of appeal reflected prejudices about the role of women, exemplifying gender-insensitive language that perpetuates gender bias. Besides, female expert 1 explained that judges often refer to male litigants using formal titles (“Mr. Smith”) while addressing female litigants by their first names, an example which might seem to be negligible, “but again creates a power dimension”. Female expert 6 indicated that judges need to be sensitised to address and treat transgender, intersexual and non-binary persons fairly and adequately, regardless of whether their official documents reflect their gender identity. Female expert 5 explained that there are also differences between countries in this regard. She added “if it’s not mandatory to use gender inclusive language I don’t think many judges will spend time on reflecting on this unless it’s really something important for them personally.” She also noted that, so far, judges in her training sessions have not raised themselves questions such as “When I address the victim, am I supposed to ask for their gender or am I just supposed to assume based on how they look like?”. This highlights the need to proactively address this topic.
(2) A particularly concerning issue is the reproduction of stereotypes by national authorities and other actors, as exemplified by the dismissal of gender-based violence cases where police and prosecutors adhere to harmful gender stereotypes. This was evident in the case of J.I. v. Croatia, 2022, where the courts failed to conduct a thorough investigation into alleged death threats against a Roma woman, thus not applying a gender-sensitive, intersectional approach to the case. Similarly, in Semenya v. Switzerland, 2023, the CAS and the Swiss courts upheld discriminatory stereotypes against an intersex woman of African descent, failing to apply an intersectional lens to the case (see above). Experts also mentioned the reproduction of stereotypes concerning violence against women with disabilities, who are often perceived as either as asexual or hypersexual.
(3) Finally, the accessibility and safety of proceedings for women, particularly victims of gender-based violence, were highlighted by female expert 3, who noted that structural, e.g. physical, cultural, and economic barriers, can be based on stereotypes, hindering women’s’ access to justice. This includes issues such as inconvenient court times or the risk of facing perpetrators during proceedings. Experts agreed that ensuring the safety of women throughout the judicial process is paramount yet remains a significant challenge in many jurisdictions.
Conclusion
As female expert 3 explained: “The thing with stereotypes is that they are very pervasive, very difficult to identify, and constantly evolving.” Against this background, the identified entry points can provide a comprehensive framework for analysing how gender stereotypes and myths permeate judicial decision-making and inform judicial training. Several experts emphasised the link between gender stereotypes and structural and institutional discrimination, underlining the importance of working “at a structural level, how to actually ensure that this awareness and this practice are incorporated institutionally in policies, in guidelines, in curricula, and so on” (female expert 1).
As female expert 1 remarked: “Where there is will, there is might. So wherever you have will, you can advance.” In light of the current anti-human rights and anti-gender movements, the political willingness to confront deeply entrenched stereotypes is urgently needed. The research conducted on gender stereotypes serves as a starting point and can be expanded to explore stereotypes related to other forms of systemic discrimination.
See the blog post “Breaking Bias: Training Judges to Challenge Gender Stereotypes in Courts” for general practical recommendations on judicial training regarding gender stereotypes.
About the Author
Beate Streicher is a legal professional with extensive experience in international law, human rights, and advocacy. She is currently serving as a legal advisor on international law at Amnesty International Germany. She is skilled in drafting submissions for legislative processes and international monitoring, with a deep understanding of human rights law and a strong commitment to social justice and equity. Her re:constitution research project (2024/25) examines gender stereotypes in court proceedings and decisions, and she conducted her mobility period at the Council of Europe Programme Human Rights Education for Legal Professionals. Beate has achieved success in both state examinations, with experience at the German Constitutional Court, the European Parliament, and the Inter-American Court of Human Rights. Previously, she worked as a student research assistant at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. She holds a solid academic foundation from Ruprecht-Karls-Universität Heidelberg and completed two exchange semesters at Université Toulouse 1 Capitole, focusing on International, European, and National Public Law.
Citation: Beate Streicher, Breaking Bias: Entry Points for Gender Stereotypes in Judicial Decision-Making, in: TRAFO – Blog for Transregional Research, 06.03.2025, https://trafo.hypotheses.org/55742
OpenEdition suggests that you cite this post as follows:
Forum Transregionale Studien (March 6, 2025). Breaking Bias: Entry Points for Gender Stereotypes in Judicial Decision-Making. TRAFO – Blog for Transregional Research. Retrieved March 25, 2025 from https://doi.org/10.58079/13fet