Judging with a gender perspective: from judicial obligation to procedural strategy

The SCJN Protocol and the jurisprudential criteria that every litigant should know

The gender perspective is often associated with family or criminal matters. However, the Supreme Court of Justice of the Nation (SCJN) has clearly stated that it is a method of analysis that should be applied in any legal dispute where gender could create an imbalance between the parties, regardless of the subject matter. For companies, executives, and litigants, understanding how this tool operates (and what its limitations are) is increasingly important.

What is the Protocol for Judging with a Gender Perspective?

The Protocol is an instrument issued by the Supreme Court of Justice of the Nation (SCJN) to assist judges in applying this method of analysis. Its first edition dates from 2013, and its updated version was presented on November 25, 2020, during the Eighth National Congress: Justice and Gender.

The document is organized into three main sections: a conceptual framework (gender roles, power relations, stereotypes and gender violence); a study of the evolution of the gender perspective in the universal and inter-American human rights systems and in the doctrine of the SCJN; and a practical guide that distinguishes three levels of application: before studying the substance of the controversy, during the study of the substance and throughout the drafting of the judgment.

The Supreme Court of Justice of the Nation (SCJN) has recognized that the obligation to judge with a gender perspective is not expressly provided for in a legal system, but rather derives from the interpretation of the rights to equality and non-discrimination recognized in the Constitution and in international treaties.

The Protocol, therefore, is a guiding tool; what binds the courts is jurisprudence. In fact, within the Supreme Court of Justice of the Nation (SCJN), there are positions that have questioned including the Protocol within the parameters of constitutional review.

Our highest court has established that every jurisdictional body must implement a method in every judicial controversy, even if the parties do not request it, in order to verify if there is a situation of violence or vulnerability that, due to gender issues, prevents justice from being administered fully and equally (see jurisprudence with digital record 2011430, available at https://sjf2.scjn.gob.mx/detalle/tesis/2011430).

To do this, the judge must:

• Identify if there are power situations that, due to gender issues, show an imbalance between the parties.
• Question the facts and evaluate the evidence, discarding any gender stereotypes or prejudices.
• Order the necessary tests to make visible situations of violence, vulnerability or discrimination, when the evidentiary material is insufficient.
• If a situation of disadvantage is detected, question the neutrality of the applicable law and evaluate the differentiated impact of the proposed solution.
• Apply human rights standards to all people involved, especially children.
• Avoid using language based on stereotypes or prejudices and strive for inclusive language.

Furthermore, other judicial criteria have established that the obligation is intrinsic to the jurisdictional function (it does not require a request from a party). In other words, the method requires analyzing whether an imbalance exists, not presuming it.

How can it be invoked in a legal process?

Although the obligation is automatic, in practice it is advisable that the interested party expressly and with justification raise it. Some relevant procedural moments and avenues are the following:

• Initial pleadings. In the initial pleading or response, set out the facts that demonstrate an imbalance of power or a context of vulnerability, and request that the matter be resolved in accordance with the Protocol.
• Evidentiary stage. Offer evidence aimed at making the context visible (expert reports in psychology or social work, documentary, testimonial) and, if they are insufficient, ask the jurisdictional body to order ex officio the necessary steps, in accordance with the third element of the method.
• Arguments and appeals. Pointing out stereotypes or prejudices in the assessment of evidence or in the language of the challenged decision.
• Amparo. The First Chamber has reiterated that the omission to judge with a gender perspective entails a constitutional issue, because it is linked to the human right to equality, which may justify the admissibility of the direct amparo in review.

Relevance to the corporate environment

For businesses, this issue is not unfamiliar. Courts have applied this methodology in labor disputes (trials involving harassment or sexual harassment must be judged with a gender perspective), as well as in civil and family litigation with financial implications.

From a strategic perspective, this implies that organizations must anticipate how a controversy might be analyzed under this method: review internal policies, rigorously document disciplinary processes, and take care with the language of their communications and procedural documents.

Judging with a gender perspective is now a firmly established obligation in the Supreme Court of Justice of the Nation's (SCJN) jurisprudence, with a clear and verifiable methodology. Understanding its elements, its means of application, and its limitations allows parties to develop stronger procedural strategies and anticipate risks. As with any legal tool, its effectiveness will depend on its timely application, evidentiary support, and technical precision.