Gender Framework Considerations Specific to Strategic Litigation

There are particular issues to be aware of when bringing impact litigation cases to national and international courts. Since these cases are often lengthy processes, spanning several years, gender-specific concerns may vary with time, so thinking of gender – and the intersection of other identity categories – should be present throughout your engagement in a case. Discrimination is intersectional meaning that other identity categories such as race, age, ability, income level, sexuality or ethnicity in combination with gender can impact the level and kind of discrimination clients experience. We should therefore be aware of multiple sources of discrimination and how discrimination may be different for someone who is marginalized in more than one area than for someone experiencing marginalization in only one area (e.g. a white woman will be marginalized differently from a black woman or from a queer woman). Consider developing a checklist of things to look for in potential impact or strategic litigation cases – often these issues may not be explicitly stated.

As well as duration, the international aspect of strategic litigation cases is likely to generate particular gender-related concerns among refugee clients that are less present in other aspects of your work, such as in-country legal services, workshops and advocacy activities.

If your organization has selected gender-based violence (GBV), or women’s rights as a particular thematic area of focus for litigation, it is likely that gender issues and perspectives will be very present in your work. It is recommended to consider the wider gender-impact of your strategic litigation cases from the outset, and aim to have a positive gender impact by selecting appropriate cases with potential.

An example of a positive gender-impact outcome through strategic litigation is the case Asylum Access Ecuador brought to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) alongside Loyola Law School’s International Human Rights Clinic. The case aims to establish domestic violence as a grounds for refugee status.

It is important to distinguish between the gender issues that you are tackling in the judicial system and gender issues which may present themselves as a direct result of you resorting to the judicial system – the latter being aspects which you have greater ability to influence and manage. It is crucial to be gender sensitive in all your dealings with clients – whether directly related to legal work or not – and to prepare your clients when you foresee that an issue is likely to arise or affect them in your dealings with the judicial system. Sensitive treatment of petitioners is part of a duty of respect to the client under the Nairobi Code and will likely make your client more comfortable and thus committed to the process. A strategic litigation case should affirm the empowerment of the client by attempting to focus on the client’s goals while the legal team fits the strategy to pursue these goals.

If you become aware that services your client is receiving from other organizations or institutions are gender-insensitive, reaching out to such partners and collaborating on providing comprehensive gender-sensitive services is recommended.

Below is a non-exhaustive list of concerns that may be important when conducting strategic litigation. This is by no means exhaustive and we recommend that you explore all worries and expectations clients may have on an individual basis at regular intervals throughout the case.

The Treatment of Clients section will detail how to interact with clients throughout the strategic litigation process.

The Practicalities section will lay out the practical details that should be kept in mind when doing strategic litigation.

The Working Within Biased Legal Systems section will touch upon the entrenched bias within the legal system that you will combat.

The Wider Discriminatory Contexts section will zoom out and take a look at bias within the larger society.

The Reparations section will cover what forms of justice clients may receive or desire to receive from strategic litigation.