Does a judge’s gender matter?

A new study by two law professors says two factors appear to influence the outcome of certain cases – which political party appointed the judge and the judge’s gender.

The study, called "Does a Judge’s Party of Appointment or Gender Matter to Case Outcomes? An Empirical Study of the Court of Appeal for Ontario", was produced by James Stribopoulos (left) (LLB ’94, BA ’95), a professor at York’s Osgoode Hall Law School, and Moin Yahya, a professor at the University of Alberta’s Faculty of Law. This year it won the Canadian Association of Law Teachers Scholarly Paper Award (see YFile March 13). It will be published in the summer issue of the Osgoode Hall Law Journal, coming out soon.

Stribopoulos and Yahya looked at every reported decision of the Ontario Court of Appeal – Canada’s busiest appellate court – between 1990 and 2003 and collected data on votes cast by individual judges. Each case was categorized – as criminal or constitutional law, for example – and tracked based on variables such as the type of litigant, the political party that appointed the judge, and the judge’s gender.  

"There is an assumption, mostly embraced by the Canadian legal establishment that, unlike their American counterparts, Canadian judges are apolitical in their judging," Stribopoulos says. "Our study empirically evaluated that assumption by analyzing over 4,000 reported judgments of the Ontario Court of Appeal over a 12-year period. In the process, we also decided to consider the potential influence of a judge’s gender on case outcomes. The result, in a nutshell, is that – at least in some categories of cases – party of appointment and gender did indeed matter to case outcomes." 

Their analysis revealed three noteworthy findings:

  • an extraordinarily high rate of unanimity in the court’s judgments,
  • a statistically significant variation in the voting of judges depending on the party of their appointment, and
  • an equally notable variation in the way male and female judges vote.

While the findings are cause for concern, Stribopoulos and Yahya say their study also points to a simple solution: "Diversity in the composition of appeal panels, both from the standpoint of gender and party of appointment, dampened the statistical influence of either variable." The study finds that a single judge on a panel who is of the opposite sex from the others or, in the case of political party, a single judge appointed by a different political party, can help eliminate the potential for bias.

The Canadian study was modelled after a similar study of judges on the United States Courts of Appeal. It was funded by a Borden Ladner Gervais LLP Research Fellowship.

The findings suggest a need for further research in this area and for greater transparency in the judicial appointments process in Canada. "This finding suggests a need to reform how appeal panels are currently assembled in order to ensure political and gender diversity and minimize concerns about the potential for bias," conclude Stribopoulos and Yahya.