INTERNATIONAL JOURNAL OF THE LEGAL PROFESSION, 2015

Vol. 22, No. 2, 134 –150, http://dx.doi.org/10.1080/09695958.2015.1029488

Brazilian judges in-between

professionalism, gender and difference

MARIA DA GLORIA BONELLI

Department of Sociology, Universidade Federal de Sao Carlos, Sao Carlos, Brazil

A BSTRACT This paper analyzes how Brazilian judges experience difference, focusing on
how professionalism, gender, generation and diversity intersect in identity formation among
women and men who are judges in the state of São Paulo, Brazil. In attempting to avoid
attaching one fixed meaning to the concept of difference, we work with Avtar Brah’s
typology; this in turn enables us to capture how difference is perceived and experienced by
our interviewees. Our results provide a look at how the specificities of the
professionalization process influence the composition of the two courts we have studied (one
at state and another at federal level), and how they increase or reduce the gender
stratification within these careers. Being a judge is experienced through difference, in
particular as the ‘Other’ to those outside the career, and wherein identification is
intersected by questions of gender, sexuality and generation. Although professionalism
establishes boundaries between ‘us’ and ‘them’, it is also diluted through the ways in which
the above-mentioned social markers and attributes permeate the self and professional
groups. We interviewed 18 judges (women and men) from the São Paulo State
Courts (Tribunal de Justiça de São Paulo) and 10 judges from the Regional Federal
Courts (Tribunal Regional Federal) from the São Paulo circuit.

Introduction
This paper attempts to contribute to the debate on gender and judging by examining
the ways in which men and women who are judges perceive career differences and
attempt to deal with them, whether from a gender binary perspective or from one
that destabilizes such fixities. We look at indicators of professionalism within judicial
institutions in relation to career inequalities and to judges’ perceptions, and find that
where the consolidation of professional autonomy has preceded the inclusion of the
‘Other’ within the profession, a gendered type of closure with considerable stratifica-
tion can be observed.

Address for correspondence: Maria da Gloria Bonelli, Full Professor, Department of Sociology,
Universidade Federal de Sao Carlos, Via Washington Luiz km, 235, Sao Carlos, SP, Brazil.
E-mail: gbonelli@uol.com.br

# 2015 Taylor & Francis

 BRAZILIAN JUDGES IN-BETWEEN PROFESSIONALISM, GENDER AND DIFFERENCE 135

The present study joins with others that have problematized the risks of reifying
gender stereotypes through the theoretical frameworks they employ to analyse them
(Feenan, 2009). Based on Rackley’s (2009) proposal for re-directing the debate
toward difference rather than gender essentialization, we have been able to detect
the plural narratives that are contained within our qualitative interviews. Heavily
marked by hybridisms that de-centre the gender of a supposed nucleus of the self,
these narratives express the discursive disputes that permeate a career; thus, they
reveal how gender is intersected by career, generation, sexuality and marital status,
among others.
We approach gender here as a social and cultural construction, an analytical
category that questions the naturalization of sexual dualities posed as fixed and
unchangeable essences of being (Scott, 1999). We recognize that within specific his-
torical and cultural contexts, an emphasis on anatomical differences has led to con-
ceiving gender in essentialized terms. In contrast, Butler (2003) poses gender in
terms of a scale that combines the masculine and the feminine with heterosexuality
and homosexuality in non-oppositional ways. In her view, the gender that the body
expresses is the result of performatic acts and gestures that spawn identities which
may be normalized, yet may also imitate or parody cultural myths of femininity and
masculinity.
The paper is divided into three sections. The first one provides a characterization
of the Brazilian judiciary, in particular, the São Paulo State Courts [Tribunal de Justiça
de São Paulo (TJSP)] and the Third Federal Appelate Court [Tribunal Regional Federal
da 3ª Região (TRF-3)] which serves the states of São Paulo and Mato Grosso do Sul,
placing our own case studies within an international bibliography on legal professions
and gender and judging. We argue that it is professionalism that makes the difference
in the gender composition of these courts, with greater women’s participation mani-
festing itself where professionalism is less consolidated. In the second section, we
present our methodology and the profiles of our interviewees. In the third section,
we articulate a theoretical approach to difference with the narratives that emerge
from our interviews.

Professionalism as producer of differences within the judicial career

The international literature frequently contrasts the judiciary model of countries that
implement common law with those that follow civil law systems. While this may facili-
tate understanding of differences and allow for comparative studies, binary classifi-
cations also have the drawback of obfuscating specificities. Although lower social
status and salaries and greater ease of women’s entrance are attributed to civil law
court systems (Schultz & Shaw, 2008), the São Paulo State Courts1 do not fit this
picture, nor are they seen in these terms by Brazilians. As the largest court in Brazil,
with 2,400 judges, it sustains a highly competitive selection and recruitment
process, positions that are much sought after, with starting salaries in 2010, of
R$19,000.00 per month (US$11,000) for the lower courts. This amount was the
equivalent of 36 times the Brazilian minimum wage, and therefore quite revealing of
the amplitude of social distance (as income inequality) that reigns within the country.
136 MARIA DA GLORIA BONELLI

A career as a judge begins with a competitive entrance examination that is open to

lawyers who have had at least three years of experience or people with law degrees that
have been employed within the judicial system. Exams are quite difficult, demanding
mastery over a wide range of specialized legal fields. On average, the candidates who
pass have taken the exam several times, and have spent an average of around four years
of study in order to reach their goal. Up until 1996, candidates were identified by
name in the exams, thus making it possible to observe high levels of elimination of
women candidates. Thereafter, written exams began to omit identification, showing
candidates by registration numbers only. Yet this was precisely the moment in
which women’s success rates were on the rise (Barbalho, 2008).
Today, there are more women than men who make it to the final stage, the public
oral exam. However, at this stage, an interview before a committee, women’s advan-
tages seem to vanish. Subjective and not very transparent evaluation criteria for
desired professional attitudes continue to exist, exerting control over career entry.
This is a type of internal control, carried out by high court judges, professional
peers at the top of the state judicial hierarchy, where male predominance continues
to be impressive.
Changes in the gender composition at the first tiers of the São Paulo state judi-
ciary are significant (Sadek, 2006), yet reflect patterns that are similar to those of
courts in other common law countries. In 1993, the TJSP had 1,372 lower and inter-
mediate court judges, 10% of whom were women. In 2011, there were 2,418 judges,
of whom 749 (31%) were women. At the São Paulo State High Court, in 1993, there
were no women judges. In 2011, there were 13 female high court judges, nine of
whom belonged to the ‘constitutional fifth’ (quinto constitucional).2 They were selected
for the High Court by the Sao Paulo State Public Prosecution and the Sao Paulo state
section of the Brazilian Bar Association. Only four female judges had moved up to the
High Court through their judicial careers. Yet the total number of positions for high
court judges is 360. Thus, at the time our data were collected,3 354 positions had been
filled and women’s participation totalled less than 4%.
Within the Brazilian judiciary, the São Paulo State Courts became the first to
consolidate a type of professionalism that was tailored to the character of an elite
public institution. Career stability, career entrance through public examination by a
board of peers, standardized criteria for promotion, internal controls carried out by
the Court Commission (Corregedoria), peer choice of those to head the High Court
and clearly drawn boundaries between politics and profession provided substance
to professional autonomy and judicial independence. This State Court was set up
in 1873, the first in Brazil, and is marked by its triumphant trajectory in struggles
over judicial independence. Yet this was not the case for other Brazilian courts,
which underwent episodes of executive intervention, such as the one which in 1937
extinguished the federal judiciary (to be re-established later, in 1965, under the mili-
tary regime). Although career entrance involves a very competitive, meritocratic
exam, to this date federal courts have less autonomy in promoting advancement to
the second tier, a process which involves federal government approval.
The judiciary system in Brazil is divided into federal and state branches, both of
which cover civil and criminal justice. The federal branch deals with cases that involve
 BRAZILIAN JUDGES IN-BETWEEN PROFESSIONALISM, GENDER AND DIFFERENCE 137

the federation, that is, the state at the national level, and the state courts treat matters
concerning the particular state in which the court is situated. There are 26 states in all,
and one federal district. At the federal level, there are also military and labour courts,
which are specialized and maintain career paths of their own. Electoral justice is in the
hands of state and federal judges, and thus does not include a separate corpus of
magistrates. These judges are active in all 26 states and the federal district. The
state judiciary has 27 courts, with high court judges being responsible for appeals.
Federal judiciary first instance appeals are dealt with by five federal appellate
courts. The Superior Court of Justice (STJ) handles the second instance appeals of
federal and state high courts. The Supreme Court (STF) sits at the top of the
pyramid, as a constitutional court. There are specialized higher courts for labour
issues, electoral matters and the military, in addition to a National Council of
Justice (Conselho Nacional de Justiça), created in 2004.
Characteristics of professionalism (Freidson, 2001), such as professional power,
autonomy, jurisdictional control, definition of career entrance and promotion criteria
avoiding pressures of political actors, become markers of difference between the TJSP
and the TRF-3. Consolidation of professionalism at a time that was prior to women’s
entrance into the judiciary is a key factor in explaining obstacles to feminization in the
case in point, in addition to the differences between civil law and common law systems
that have been observed (Schultz & Shaw, 2003). Expertise has been used as a
resource that agencies promoting judicial reform have employed in dealing with the
differences between these two systems, providing some standardization of judicial
institutions in countries of the global north and south (Dezalay & Garth, 2002).
Professional relations between exporters and importers of expertise within the
world of law have pressured for women’s inclusion in legal careers, yet this has also
had the effect of reproducing, in the south, the gender stratification characteristic
of the global north.
The TJSP approved the first woman judge’s entrance into the field in the 1980s, a
time when professionalism had already been consolidated and state high court judges
were controlling the expansion of positions, recruiting and promotion to appellate
courts. Moving through these levels, it was only in 2003 that two women judges
rose to the top level of the São Paulo State Court.
The 1988 Brazilian constitution, in reformulating the previously existing struc-
ture of federal courts, brought modifications in career progression. The Federal
Resource Court, with headquarters in Brasilia, was abolished, and five federal appel-
late regional courts were created, increasing the number of available positions. The
first TRF-3 group, formed in 1989, was made up of 14 male appellate judges
(78%) and four female civil judges (22%). In 2011, the pool included 22 male appel-
late judges (54%) and 19 women (46%). According to Ricardo Castro Nascimento,
President of the Ajufesp, Association of Federal Judges (Associação dos Juı́zes
Federais) linked to the TRF-3,4 another characteristic of a more recent professiona-
lization process has been intense internal conflict, as the court has become politicized
and divided into two partisan blocs. Although the values of professionalism guide the
institution, which is organized around expertise, meritocratic selection and judicial
independence, the federal judiciary is more vulnerable than the TJSP in terms of
138 MARIA DA GLORIA BONELLI

autonomy, since it is up to the federal government to make decisions on the creation

and location of new local branches, and on promotions to the appellate court. Since
São Paulo is the state where the greatest demands are placed on the judiciary, it is
there that the expansion of the number of positions has been greatest, propelling
the entrance and promotion of judges. Female appellate judges have risen to the pre-
sidency of the TRF-3 (São Paulo e Mato Grosso do Sul states) and the TRF-2 (Rio de
Janeiro and Espı́rito Santo states) (Table 1).
Currently, the proportion of women judges within state and federal trial courts in
the state of São Paulo is similar, at 35.7% in the TJSP and 37.5% at the TRF-3, yet the
differences in women’s participation within the appellate court reveal distinct patterns
of gender stratification. Within the TJSP, where only 4% of high court judges are
women, the glass ceiling persists (Kay & Hagan, 1995; Thornton, 1996) while
within the TRF-3, where 48% of the appellate judges are women, the ceiling has
moved up to the next step in the career, the Superior Court (17% female justices)
and the Supreme Court (18% female justices). The gender make-up of the federal
judiciary for the entire country is situated at an intermediate standard, between
that of the TJSP and the TRF-3, thus revealing regional differences in terms of
resources expansion.
Closure strategies can be identified within the professions (Weber, 1968; Collins,
1990), and have long been common practice in legal professions (Heinz & Laumann,
1982; Abel, 1989). More recently, the use of such strategies has also been found to
apply in relation to women, but such inequalities have been declared as purely transi-
tional, to be eradicated by a gradual ‘trickle-up’ process (Junqueira, 1998; Boigeol,
2003; Malleson, 2003; Mossman, 2006). Closure and stratification come to be
seen as gendered, with professions that claim masculinity or femininity (Davies,

Table 1. Gender composition of the São Paulo State Courts, the 3rd Region Federal Appellate Court, and totals
for Brazilian federal judiciary, STJ and STF

TJSP TRF-3

Trial court Appellate court Trial court Appellate court

N % N % N % N %

F 763 35.7 13 3.7 113 37.5 19 46.3

M 1328 64.3 341 96.3 188 62.5 22 53.7
T 2064 354 301 41
Federal judiciary

Trial court Appellate court STJ STF

N % N % N % N %
F 428 32.9 35 27.1 5 17.2 2 18.2
M 872 67.1 94 72.9 24 82.8 9 81.8
T 1300 129 29 11

Source: TJSP, federal judiciary and TRF-3, STJ and STF sites, data collected in February 2011.
 BRAZILIAN JUDGES IN-BETWEEN PROFESSIONALISM, GENDER AND DIFFERENCE 139

1996; Kay & Gorman, 2008) producing binarisms through the routine and bureau-
cratic work that is associated with women and the professional and specialized work
that is associated with men.
Bolton and Muzio (2007) suggest that there is a mechanism of gendered closure
that persists within the legal professions, with three distinct patterns for the barriers
women face: stratification, segmentation and sedimentation. Stratification occurs
vertically, in denying women access to the highest occupational levels.
Segmentation operates horizontally, forming ghettoes in which women are confined
to the areas of lesser value (family law vs. business law). Sedimentation occurs when
professional women resort to essentialism as a way of organizing gender identity
through enclaves, in an attempt at empowerment. This represents adherence to a
closure strategy implemented through the perspective of “the established” (Elias,
2000), rather than the position of the ‘outsider’ that is characteristic of female occu-
pational ghettoes.
Do we observe gendered closure within the Brazilian judiciary at the three levels
of the career? This paper demonstrates that it does exist, but not in the same way
within the two courts, the TJSP and the TRF-3. Within the former, stratification is
the result of the hegemony of professionalism within the court, which preceded
women’s entrance. In the latter, such hegemony has not yet been established, but is
the object of intra-professional conflict and discursive disputes over court autonomy
in relation to the Executive and to partisanship. With regard to segmentation, narra-
tives that negate gender difference in professional activity prevail, and this acts as an
obstacle to the ‘sedimentation’ of gender-based enclaves.

Our interviewees
Our field research sought to locate judges who would be willing to participate in our
project, through contacts we made at TJSP and TRF courts and court houses and
through peer recommendations. The interviewers were a research team made up of
six women and one man, following a semi-structured interview schedule and previous
participant authorization of anonymous recording. The interviews were carried out at
participants’ workplace and took between 50 minutes and two hours. We made sure to
select professionals who were currently situated within different phases of their
careers, women and men in state and federal courts. We encountered certain difficul-
ties in obtaining judges’ participation in the city of São Paulo. This difficulty was
greatest among those whose peers perceived them as homosexuals. Interviews were
transcribed and analysed with the aid of the NVivo 9 software.
We carried out 28 interviews, of which 14 were with state judges, four with state
high court judges and 10 with federal high court judges. Nine of our interviewees
worked in the capital city and 19 in other parts of the state. Some 57% were
women, of whom one was a high court judge, nine were state judges and six were
federal judges. Age groups varied, but the majority (50%) were between 35 and
49 years of age; 21% were under 35 years old, and 29% were over 49 years old.
In this latter group, only one was a federal judge, and all the others worked
within the TJSP.
140 MARIA DA GLORIA BONELLI

As for marital status, 75% of our interviewees were married and 64% had chil-
dren. Of the 18 judges with children, 45% were women. Among those who were
single or divorced, more were women.
Among the 21 interviewees who were married, 43% were involved in activities
linked to legal careers or civil service in the field of justice. Only a small number
were sons or daughters of legal professionals (14%), and among those who were,
the majority were state judges. Comparison with the case of the high court judges,
all 55 years of age or over, reveals origins of lesser social privilege among the latter
group. Among federal judges, closer in generation to the state judges, parental occu-
pation is more heterogeneous.
With regard to university education, 54% of those interviewed had studied law at
a public university, and most at the University of São Paulo (USP). Private Catholic
universities accounted for another 39% of those in our sample.
Our interviewees’ average tenure at the TJSP was 12 years, with high court judges
having spent twice as much time on the job. For federal judges, the average time on the
job was seven years. Between graduation from law school and TRF entrance, there
was an average interval of eight years. At the TJSP, the average time between gradu-
ation and career entrance was five years, excluding those who were nominated for the
court through the ‘constitutional fifth’. This means that TRF entrance tends to be
later than TJSP entrance and that the interviewees spend more years in activity
within state careers. Most of our interviewees in the state judiciary had been in the
TJSP prior to 2000, whereas within the São Paulo federal courts, most had entered
as of 2000. The professional trajectory prior to career entrance is greater among
federal judges, who on average had occupied 2.3 legal positions before their appoint-
ment to the federal court. Most state judges, on the other hand, had had only one
occupation prior to taking on their judicial positions.
Regarding fields of activity, we did not observe any gendered concentrations in
particular areas. Our sample showed a balance between areas of public and private,
and criminal and civil law. Neither did family and juvenile justice – which might be
associated with caring – seem to constitute a female ghetto. Indeed, within our
sample the two state judges in a family court were men. The same can be said with
regard to the position of assistant judge in courts that have a presiding judge as well
as regarding the small claims courts. No segmentation or sedimentation was observed
within the TJSP and the TRF-3. In this latter court, there are similar numbers of men
and women as substitute judges, that is, at the entrance level. Judges at the Federal
Small Claims Courts of São Paulo are 58% female and 42% male. The state small
claims courts are 60% male and 40% female.5
There are more steps on the appeals court promotion ladder within the São Paulo
state judiciary than within federal courts. The first tier of the TJSP is divided into four
ascending levels of promotion: substitute judge, entrance level, intermediate entrance
level and final entrance level. At the TRF-3 there are three ascending levels: substitute
judge, assistant judge and presiding judge.
The gender stratification that can be observed within the TJSP starts at final
entrance level with 28% female judges, and is highly accentuated within the appellate
court where the high court judges are found.
 BRAZILIAN JUDGES IN-BETWEEN PROFESSIONALISM, GENDER AND DIFFERENCE 141

These data sustain the prevailing perceptions of men and women who are judges
in São Paulo that there is no gender discrimination regarding field of activity, and in
this sense distinguishing judges from lawyers and other careers which form feminine
enclaves on the inside. According to Marques Jr. (2011), it is the type of career itself,
demanding judges’ geographical mobility, that feeds gender differences and thus pro-
duces stratification: women judges have a harder time re-locating because of family
commitments, thereby limiting their opportunities for promotion. In this regard
then, gender is not a factor that explains internal differentiation directly, but works
through other factors. We must then look to professionalism and its ability to avoid pol-
itical interference in the career.
In several other ways, our interviews do emphasize differences, recognizing even
those that create a contrast between autonomy in state and federal judiciary.
Because [the appellate court judges] are chosen by President Lula, from a
triple list . . . there is a kind of interference that I consider absolutely inap-
propriate, on the part of the Executive, over the Federal Courts.
Unfortunately this continues until today and it doesn’t seem as if many
people are concerned by this. This doesn’t happen at state level. At state
level those who are promoted are nominated by the Court, free of the inter-
ference of any outside authority. (Federal judge, male, between 36 and 40
years of age, married to a journalist, one child)
Differences in professionalization, gender, generation, marital status, social origin and
occupational trajectory feed the hybrid narratives of our interviewees. Even the per-
ception of difference among judges, which forms the basis for a prevailing identifi-
cation of an ‘us’ (judges) in contrast to ‘others’, is not an attitude or interpretation
to which all subscribe.
In this sense, we focus on difference conceptually, articulating it with the mean-
ings that judges gave it in their reflections in the course of our interviews.

Difference: analytical approach and judges’ experiences and perceptions

Our approach to difference finds support in Brah’s notion (2006, p. 374) that “it refers
to the variety of ways in which specific discourses of difference are constructed, con-
tested, reproduced and re-signified”. We use the typology that she suggests when she
states that
it is useful to distinguish between difference as a marker of the distinctive-
ness of our collective ‘histories’ from difference as the personal experience
that inscribes individual biography. These sets of difference are constantly
articulated but cannot be ‘read’ directly from each other. (Brah, 2006,
p. 361)
For this author, difference as experience refers to that which is inscribed within
individual biography and appears as the site where the subject is formed, always
constituted as process. The “notion that these categories are unified, fixed and pre-
existing categories, rather than modes of multiple localities continuously marked by
142 MARIA DA GLORIA BONELLI

cultural practices and the politics of daily life, disappears” (Brah, 2006, p. 361). The
subject of experience is not an already-made being upon whom experiences are thrust.
Difference as experience holds all the contradictions of subjectivity and identity.
Difference as a social relation refers to the way this relation is constituted by sys-
tematic historically contingent discourses – whether the latter are economic, political
or cultural – and by institutional practices. A particular group articulates this type of
difference upon narrating historical, collective experiences as a common past, for
example, the legacy of slavery. This in turn produces the conditions for collective
identities and shared discourse, but does not necessarily lead to the building of
community.
Difference as subjectivity is perceived as interiority, yet the subject as a process is
constituted in and through ‘internal’ and ‘external’ experience. This process of con-
struction of subjectivity is both social and subjective, “where the subject is understood
as de-centred and heterogeneous in terms of qualities and dynamics. Thus, subjectiv-
ity is neither unified nor fixed, but refers to a fragmented and continuous process”
(Brah, 2006, p. 368).
Regarding difference as identity:
identity can be understood as the very process through which the multi-
plicity, contradiction and instability of subjectivity is signified as holding
coherence, continuity and stability; as if it possessed a core – a core in con-
tinuous transformation, but still, a core – that at any particular moment can
be enunciated as a ‘self’. (Brah, 2006, p. 371)
For Brah, if identity refers to a process, to speak of it as existing and constituted is pro-
blematic; thus, it becomes more appropriate to speak of ‘identification’. The identity
that is proclaimed is in effect a re-making, a construction; a specific collective identity
is a political process, in contrast to identity as a process in and of subjectivity.
The typology that Brah proposes starts from the notion that there is no singular
identification of difference in which one particular marker – such as social class,
gender, sexuality or race – prevails. She gives salience to the intersectionality of
social markers and how they come together to provide meaning to the self.
Adopting this perspective, the present study has incorporated her typology,
applying it to the attributes and markers that stand out in our interviewees’ narratives.
Thus, we are able to map out their intersections as well as the meanings they take on
within a particular professional group. Differences, as experience, as social relations,
as subjectivity and as identity refer to aspects of a social profile that were brought out
in informants’ speech. The difference that is most outstanding as a source of identifi-
cation is that of the profession itself. Being a judge is the factor that operates as a dis-
tinction between those on the inside and those on the outside, an attribute that is
intersected by markers such as gender, generation, sexuality, race/ethnicity and
social class.
Narratives reveal a perception of the career as constituting difference as identity,
contrasting those who are judges with those on the outside, whether parties, lawyers or
judicial staff. Intersection with gender becomes encapsulated within subjectivity, thus,
a difference that is linked to the realm of the intimate.
 BRAZILIAN JUDGES IN-BETWEEN PROFESSIONALISM, GENDER AND DIFFERENCE 143

As a woman, I work just as much as the men do. I don’t [act different], I
don’t believe there should be difference in treatment, I act just as all the
other judges here do, I work just as much (. . .) I don’t think that just
because you are a woman, have kids, you should get special consideration,
different from men. If you choose this career, you know from the start
that it’s not common nor is it like others.
I think that when you embrace this career (. . .) and choose to be a judge, this
is one career only [i.e. not one for women and one for men], and you know
what difficulties it involves. You can’t expect to get treated differently
because you are a woman. On the bench, when I started 20 years ago, every-
thing was quite different, the number of women was very, very low, and
[today] people always ask me: “Did you suffer from any type of discrimi-
nation?” [And I respond] No! (State judge, female, between 46 and 50
years of age, divorced, one daughter)
There is a noticeable generational contrast in interpretations of how female judges
who have children should behave in relation to their career. Among women over
40, there were some who expressed the opinion that maternity should not be seen
as a rationale for differential treatment. These women entered the career at a time
when the female presence was still minimal and therefore had less impact on the
gender composition of the field. Among the younger judges, members of a more het-
erogeneous professional group, this was not the commonly-held position. The testi-
mony given above signals such a change, serving as a critique of the way younger
women judges act today. The target is not a boundary between male and female,
but the new type of conduct on the part of career women.
Profession was the attribute that most often constructed discourse on difference
as identity, generating feelings of group belonging and of distance and otherness in
relation to those on the outside. This was true both for men and women, for newco-
mers and veterans.
I myself am not just a judge when I am away, I am a judge 24 hours a day.
That is the way I am, I can’t remove myself from the career I took on due
to vocation, and I love what I do, I do what I can to preserve my position
of responsibility, above and beyond all else. (State judge, male, 26 –30 age
group, married to a teacher, one child)
Lately I have hung out more with the people I work with, my colleagues. The
bench, given its nature, encourages professionals to distance themselves a bit
from the general public, because within a small city you can have quite a
large group of friends; if you frequent social events with a certain intensity,
you can create some confusion between the figure of the judge and the figure
of the friend. (State judge, 31 –36 years old, married to federal judicial staff
member, one child)
In our interviews, themes of gender, diversity and prejudice were those that aroused
the most pronounced manifestation of opinions among those interviewed: 85% of our
144 MARIA DA GLORIA BONELLI

interviewees denied that gender was a factor generating difference in career opportu-
nities within the institution, yet 75% claimed that it made a difference in the way the
career is exercised. Women judges belonging to the TRF-3 unanimously asserted that
gender was not a factor of inequality on the bench.
Narratives of gender difference in career were constructed mainly in relation to
women. There was only one male judge who spoke of the exercise of his career in
terms of the emotional costs of masculinity, indicating a perception of difference as
a social relation.
The good judge, good in the sense that is given to the term, is the one who
proffers harsh punishments, the judge that sends people to jail, that makes
the headlines, the one about whom the prosecutor exclaims, “Now that’s a
good judge”, not the one who absolves the defendant or allowed for any
flaws or broken rules, guarantees . . . No. That’s the one who would be con-
sidered a sissy, you see? It’s a matter of connotation. (State judge, male, 36 –
40 years old, married to a woman who is also a judge. Couple with children)
Difference as a social relation emerges from the narratives of both men and women
who are judges, but most frequently refers to women:
There is a foreign experience, the French one, that tends to provide guide-
lines for our own judging schools. The French say, “be careful because the
bench may become a women’s career and in a women’s field, neither per-
fection nor better salaries can be expected, because a second income is just
to help out the home economy. So women will accept just about any salary,
and that puts the gains that the Brazilian magistracy has garnered at risk.
Don’t let too many women get in, because women don’t demand higher
salaries”. (State High Court judge, male, 61 –65 years, divorced, with
children)
I think that this difference exists, and where it can be found, it is a compli-
cated difference, because it plays itself out with subtlety. Nowadays, it can’t
be overt, unless you are in a place that is, let’s say, out in the middle of
nowhere, where sexism is completely out in the open, where someone is
really going to relegate you or treat you badly for being a woman. Now
this does perhaps happen today, that is, it still happens, but takes on
subtler forms. (Federal judge, female, 31 –35 years age group, single, no
children)
We also observed the intersection of social class and race and markers that superim-
pose themselves on gender in the perception of difference as a social relation. The fol-
lowing passage is revealing as to how a judge sees herself reflected in the eyes of those
who are on trial:
There is prejudice, even among those who are on trial, but the defendant is
probably more prejudiced because I am white, because he thinks I am upper
class, because in his mind I am from a rich family, that’s why I am where I
am, which in fact is not true. His prejudice has more to do with that, with
 BRAZILIAN JUDGES IN-BETWEEN PROFESSIONALISM, GENDER AND DIFFERENCE 145

social strata, rather than because I am a woman. (Federal judge, female,

36 –40 year age group, married to lawyer, no children)
Difference as experience can be found in the narratives of men and women who are
judges, permeated by gender essentialisms and naturalizing contrasts. The most fre-
quent intersection refers to the impact that youthful age and gender have had on
women judges’ careers, making their position of authority hard to recognize.
It may be that men have greater chances for promotion, to move to another
part of the country for work purposes, as well as being more easily accepted
within the social milieu, or at hearings. And perhaps less fear of the situations
they have to confront, because in the end, a judge has to be strong and
unyielding when decision time comes, rather than afraid, “Oh, I can’t go
against [established] interests, oh, I can’t do that . . .”. (Federal judge,
male, 36–40 year age group, married to an architect, no children)
It is becoming much less frequent, but it does happen, and the younger you
are, the less experience you have in your career, the more it happens, because
people think of you as inexperienced, immature, and they speak more loudly
than you do, they can intimidate you. And you realize that only someone
who is experiencing it is aware of it, and it is even harder to explain what
it is, but there are situations in which you don’t see any of your male col-
leagues complaining, because a woman is not going to scream at a male
judge, but that stressed out guy will come around, will scream at a woman
and that will be it, he’ll get what he wants because he screamed about it.
(State judge, female, 31–35 year age group, married to a public prosecutor,
no children)
With regard to diversity, this was most frequently related to sexuality, although race
and ethnicity were also referred to within our interviews. Prejudice in relation to
sexual difference was the most commonly referred to by the judges we interviewed.
Most of them asserted that they were aware of homosexuals within the field,
although several also claimed not to have encountered any gays or lesbians. The
internal visibility of sexual difference is accompanied by the logic of the closet
that is imposed on homosexuals and on heterosexual professionals alike, given
the fact that most claim to have no prejudices with regard to sexual difference,
yet the latter must be dealt with with discretion so as not to interfere with one’s
career.
Yes, I know two, one I know who is out of the closet, I don’t know where he
shows it, but you can tell he is, and people say he’s out. There is another guy
I think is, people say he is, they think he is, but I don’t know if he isn’t out
because he hasn’t realized [what] he is or because he fears for his career, but
that’s all, the ones that I have mentioned and the repressed ones, I don’t
know if there are or not, it is a career that doesn’t favour it, there isn’t
much space for gays here. (Federal judge, female, 36–40 year age group,
divorced, no children)
146 MARIA DA GLORIA BONELLI

For the purposes of our research, we contacted several judges who were perceived
as homosexuals by their colleagues. Only two of them were willing to collaborate with
our research by accepting to be interviewed, yet when we inquired about diversity and
prejudice in judges’ careers they asserted that they knew no gay or lesbian judges.
This, of course, may suggest an erasure of difference within the career, operating
on the part of those who are perceived as homosexuals.
Prejudice regarding women within the career was the second issue that our inter-
viewees made mention of. This was related to the premise that maternity gets in the
way of judges’ career progress, shifting their focus and their dedication, and also to
stereotypes linked to femininity, such as insecurity and hysteria:
their concern about women passing [the exam] was about women’s demea-
nour. They were concerned about ‘hysterics’, that business about women
getting overly upset, so much so that during the interview they even asked
if some lawyer or anyone put the moves on me?, whether I would call the
police in or could handle it myself, some really ridiculous stuff, because
these are matters you just deal with in daily life. (State judge, female,
26 –30 age year group, married to a judge, has children)
The relative absence of Blacks in the magistrate was the third type of prejudice that
was mentioned, after sexual orientation and gender. Most of the male and female
judges who made reference to this issue attributed under-representation to social
factors preceding the moment in which positions become the object of selection
process competition. Two judges broached the issue of the ongoing debate in the
Brazilian media about affirmative action policies based on race/colour, proclaiming
their disagreement with the implementation of a quota system based on this type of
racial identification.
In my first exam there was one, one or two [Black candidates] I think . . . so
there are [some candidates], I think that difficulties in entrance come back to
that question of quotas, it’s not a question of being Black or White, it’s an
issue of poverty. The Jew, well, Jews too, I know some Jewish judges, there
are some, like my husband’s cousin who is a judge, because it doesn’t
make any difference. So there are more Jews than Blacks. Why? Because
Jews have more money than Blacks. (State judge, woman, 36 –40 year age
group, married to a doctor, with children)
The mark of belonging to a younger generation is a difference that judges feel, particu-
larly the women among them. Devoted to developing a demeanour that corresponds
to their position of authority and that expresses itself corporeally, younger judges have
to deal with a lack of recognition from lawyers and clients who associate youth with
lack of experience. Generation as difference intersects with self, de-centring profes-
sionalism. This has emotional costs insofar as it demands more performance on the
part of the judges, especially those who are young and female:
I see that it still makes a difference because sometimes, it seems, I take a
decision and people say: “wow, Mr. so-and-so, so young, has the guts to
 BRAZILIAN JUDGES IN-BETWEEN PROFESSIONALISM, GENDER AND DIFFERENCE 147

do that, and he just went and did it”. That shows that people still have reser-
vations about the fact that someone is young, although I never felt that any-
thing was done in a derogatory way, I don’t know if that happens, because
one is younger. (State judge, male, in the 26–30 year age group, single,
no children)
in the beginning I was more hot-tempered than I am today, I noticed that
often people – well, not that they didn’t have respect, but they didn’t
really believe in you, because you were [young], so many times that people
walk in here and say, “yes, daughter, yes sweetheart”, they treat you like
that. Now that’s the kind of thing that isn’t likely to happen with a guy,
someone sees him sitting in chair and goes up to him and says, “oh, son,
oh sweetheart”. Well, maybe an occasional “my son” but [not] “young
lady”! Several times people have walked into the room and seen me sitting
there and asked, “Young lady, could you tell me who the judge is”. (State
judge, female, 36–40 year age group, married to a lawyer, one child)
Thus, issues of professional demeanour and emotional costs involved in the career
were quite present in our interviewees’ narratives. The discretion, modesty, perfect
conduct, seriousness, formality, toughness, self-control and authority of the position
demand a physical performance that adds to the volume of work, leads to conflicts
with lawyers, and causes operational difficulties in promoting justice. The result is
an overload of emotions, expressed by both male and female judges.
It’s a profession that places too much pressure on you. You have productivity
controls you have to meet, a demeanour that you must always be conscious
of, you are a person who society always keeps an eye on, so that means you
have to have a lot of self-control, it’s very stressful in that regard. (State
judge, male, 51 –55 year age group, married to school teacher, with children)
I think that a female judge is less relaxed in the courtroom, in the sense that,
at least today, in the courtroom, well, I am not a very tense person and I am
able to make everyone relax a bit when that is possible, such as at the end of a
session, when there is an attempt at reconciliation. But at the beginning I
think you are more serious [in your manner], just to guarantee that people
don’t take things in the wrong way, that is, your demeanour; you think
before doing [anything], things become natural, but it takes time, in the
beginning you have to think about everything a bit more. (State judge,
female, 26 –30 year age group, married to judge, has children)
Other aspects that appear in our interviewees’ narratives, revealing the importance
they attribute to processes of identity formation and the ways in which they intersect
with other elements of the self, were the reciprocal influence of career and children,
satisfaction with being a judge and perceptions on career progression and gender.
You get to a certain level, let’s say, when you are already a fully fledged judge,
and perspectives are a bit limited, because access to courts is quite hard.
There is a certain political component and one’s work has to be reconciled
148 MARIA DA GLORIA BONELLI

with career promotion. This becomes hard to deal with within the context of
daily life, because you have to concentrate on both work and family, and in a
certain sense, there is little time left for you to devote to other activities that,
we could say, become necessary for you to move up the career ladder, such as
courses you could take, but there is not enough time for everything. (Federal
judge, female, 41 –45 year age group, married to civil servant, one child)
In our research we were able to observe how gender has a differential impact on male
and female judges in the way they experience raising children on the one hand and
career promotion and satisfaction on the other. Women dealt more with issues
related to negotiating time for personal life, child-rearing and profession, and how
this reflects on patterns of career promotion. Being married and having children are
associated with a slowing down of the pace of career progression, as compared to
one’s colleagues. Men spoke more of satisfaction, which was followed by discussion
of the costs of career in terms of limitations imposed on family life and time spent
with children, in particular.

Final considerations
The analysis we have developed above privileges two dimensions: the specificities of
institutionalization processes within the two São Paulo courts in relation to profes-
sionalism, and the ways in which difference impacts on the self, through the intersec-
tion of professionalism, gender, generation and sexuality.
With regard to the first dimension, we have related strategies of gender closure to
the amount of judicial autonomy, emphasizing professionalism as a barrier to the
female judges’ promotion to the TJSP high court. Within the TRF-3, we see that
the glass ceiling has been broken, yet the career itself remains more subject to execu-
tive and political party interference.
In relation to the second dimension, we have focused on the various ways in
which men and women who are judges attribute meaning to difference, on the basis
of the typology that Brah (2006) suggests. We have observed how the profession
emerges from several narratives as being conscious of a difference that generates
group identification, contrasting those on the inside and those outside the group.
Nonetheless, this process does not build a sense that the profession sustains a
centred self, given intersections with markers such as gender (and maternity), gener-
ation, sexuality, race, social class and ethnicity. In de-centring the profession in
relation to a fixed identity, hybridism becomes the link between the professional
group and the ‘outside world’ that is manifested in perceptions of difference as a
social relation that is reflected in the self. Difference as subjectivity is expressed by
those who relate it to the costs of markers of subordination such as gender stereotypes.
The latter, however, become a feminine essence that qualifies gender as an empower-
ing attribute in which women judges are represented as more diligent, more attentive
to detail, more persevering, more dedicated and more sensitive in dealing with admin-
istrative issues, bringing a different perspective into the work environment. Several
discursive manifestations coming from interviewees who perceived difference as an
 BRAZILIAN JUDGES IN-BETWEEN PROFESSIONALISM, GENDER AND DIFFERENCE 149

experience were in fact permeated by this type of essentialism. More than the women
judges, male judges were emphatic in asserting that gender is not a differentiating
factor within a judicial career, identifying less prejudice within the career than did
their female counterparts. Difference as experience gives meaning to women’s percep-
tions. Although they may not identify the existence of gender segmentation within the
career, they do experience the power of stereotypes and point to the ways in which
prejudice feeds into struggles around career hierarchies.

Acknowledgements
The research team that took part of this study in 2010–2011 was composed of Camila
de Pieri Benedito, Gessé Marques Jr. and Juliana Tonche. Translated to English by
Meryl Adelman.

Disclosure statement
No potential conflict of interest was reported by the author.

Funding
This work was supported by the CNPq - National Council of Scientific and Technological Development
[grant number 402710/2008-8].

Notes
[1] This court restricts its activities to civil and criminal cases in the state of São Paulo, the richest in the
country. It is organized in two tiers, with lower and intermediate court judges in the first and high
court judges in the second, judging appeals at the state level.
[2] Access to the second tier of Brazil’s judiciary is obtained through promotion, or through the consti-
tutional quota, which reserves 20% of high court judges’ positions: 10% for the Ministério Público
(Public Prosecutors) and 10% for the Ordem dos Advogados do Brasil (Brazilian Bar Association).
These institutions provide a list of names from which those who receive most votes are chosen by
the 25 high court judges who make up the TJSP’s Órgão Especial (Council of High Court Judges).
[3] Data retrieved from the TJSP site, www.tj.sp.gov.br, on 18 January 2010.
[4] “Briga no TRF-3 é exemplo a não ser seguido” [“Fight within the TRF-3 is an example not to be fol-
lowed”], interview with Ricardo Castro Nascimento, Conjur, 8 September 2009.
[5] Data retrieved from TJSP and TRF-3 websites, on 24 February 2011.

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