The challenges to gender equality in the legal profession in South Africa: A case for substantive equality as a means for achieving gender transformation

Abstract

SUMMARY South Africa lags behind with regard to an effective framework supporting substantive equality in the legal profession. The structure of the legal profession and the number of women represented in the legal profession do not as yet reflect the diversity of South African society. A number of factors play a role in the skewed representation of female attorneys and advocates in the legal profession. In addition, formal equality cannot translate into gender transformation, as the issues that cause such inequalities extend beyond the scope of attaining sameness. International instruments suggest that special measures be adopted to achieve substantive equality specifically with regard to the role of women in the workplace. This article analyses the current composition of the legal profession from the perspective of gender and race, while promoting the concept of substantive equality as a preferred approach to gender transformation in the legal profession. It considers the theoretical framework for gender equality as a human right in South Africa by examining relevant legislation and international and regional instruments, and analysing the extent to which the Cape Bar maternity policy, as an existing transformation initiative, implemented on the basis of a gender stereotype, encourages substantive gender transformation in the legal profession. Key words: gender equality; human rights; legal profession; substantive equality; formal equality; gender transformation; gender stereotypes