Inequalities in Access to Justice in Mexico. A View from Gender and Childhood Perspectives

INTRODUCTION
The right of access to justice is the human right that allows people to go to the justice system for the protection of their rights; that is, access to justice is a human right that makes the exercise of others possible, so it has a double dimension as a human right in itself and as a mechanism that guarantees them.

Access to justice represents a significant civilizational advance: it implies the prohibition of vigilante justice and the creation of a justice system that must meet essential requirements—such as independence and impartiality—to guarantee the rights of everyone who seeks its protection. It is important to emphasize that the justice system comprises courts and tribunals, as well as competent investigative bodies, such as prosecutors’ offices and public ministries. According to the Inter-American Court of Human Rights (IACHR), access to justice: “must ensure, within a reasonable time, the right of alleged victims or their families to have everything necessary done to ascertain the truth of what happened and to investigate, prosecute and, where appropriate, punish those responsible” (Inter-American Court of Human Rights, Case of López Soto et al. v. Venezuela, 2018, para. 217).

Ilustration by Monserrat García Silva

In Mexico, access to justice is recognized in Article 17 of the Constitution, which states: “No person may take the law into their own hands, nor use violence to claim their rights. Every person has the right to have justice administered by courts that shall be readily available to provide it.” International human rights law (IHRL) recognizes this right in various international instruments, including those of the Universal Human Rights System, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Rights of the Child; as well as those of the Inter-American Human Rights System (IACHR), which enshrines the right to access to justice in Articles 8 and 25 of the American Convention on Human Rights (ACHR).

In the IACHR there is consensus on the importance of access to justice, which has been understood as an “imperative norm of International Law” (Inter-American Court of Human Rights, Case of Lagos del Campo vs. Peru, 2017, para. 174), and as one of the pillars of the rule of law in a democratic society (Inter-American Court of Human Rights, Case of the Indigenous Community of Xákmok Kásek v. Paraguay, 2010, para. 139).

Given the paramount importance of access to justice, it is essential that states take measures to ensure that all individuals can access justice on equal terms and that justice is equally accessible to everyone. This implies guaranteeing access to justice based on the principle of equality. To achieve this, the Inter-American Court of Human Rights has stated that “States have the obligation to eliminate existing legal and administrative barriers that limit access to justice and adopt those measures designed to ensure its effectiveness.” Among these barriers, the Court has highlighted “cultural, social, physical, or financial barriers that prevent individuals belonging to vulnerable groups from accessing judicial or extrajudicial mechanisms” (Inter-American Court of Human Rights, Case of the Miskito Divers (Lemoth Morris et al.) v. Honduras, 202, para. 50).

This criterion acknowledges an undeniable reality: people belonging to vulnerable groups face barriers to accessing justice. To overcome these barriers, it is essential to take specific measures that consider the inequalities faced by those who use the justice system, and even more so those faced by vulnerable individuals who cannot even access justice due to barriers caused by discrimination. The following analysis examines these inequalities in access to justice from two perspectives developed and applied by the Supreme Court of Justice of the Nation (SCJN) in Mexico: gender, and childhood and youth perspectives. These are two crucial methodologies for ensuring that women, children, and adolescents can access justice on equal terms.

BARRIERS WOMEN FACE IN ACCESSING JUSTICE
Because of gender, which we can understand as a social and cultural construct arising from sexual difference (Lamas, 2000), women, adolescents, and girls have faced historical and structural discrimination that has prevented them from enjoying their human rights, including access to justice. This discrimination manifests itself in prejudices, stereotypes, and gender roles that have permeated norms and laws, as well as their application in justice systems.

The Inter-American Commission on Human Rights (IACHR [not to be confused with the Inter-American Court of Human Rights]) has indicated that the situation regarding access to justice for groups such as women, indigenous people, and Afro-descendants is “particularly critical” (IACHR, 2007, para. 7). This is the result of an intersection between the structural problems of justice systems in the region—Mexico is no exception—and the specific gender-based barriers that women, adolescents, and girls face in accessing justice.

Save the Children

These barriers include a lack of seriousness in investigating reports of violence against women, especially in cases of sexual violence; women’s distrust of the justice system due to its ineffectiveness in protecting and guaranteeing their rights, particularly for women victims of violence; a lack of protection during legal proceedings; a lack of available information and free legal support for women victims of violence; the financial burden of pursuing legal action; and the revictimization that occurs when women are blamed for the violence they suffered or when there is greater interest in their private lives (for example, their sexual behavior) than in the crime they report (IACHR, 2007). Furthermore, women victims of sexual violence face additional obstacles to accessing justice, such as shame, fear, and stigmatization (IACHR, 2011).

The Inter-American Court has noted that “in matters of violence against women, there are certain obstacles and restrictions that women face when seeking recourse from state authorities, which impede the effective exercise of their right of access to justice” (Inter-American Court of Human Rights, Case of López Soto et al. v. Venezuela, 2018, para. 220). Among these obstacles, some of the following stood out: the lack of training and knowledge on gender issues among officials responsible for investigation and administration of justice, the application of stereotypes that undermine the credibility of women’s complaints, the high rate of impunity in cases related to gender-based violence, and “the lack of access to quality legal counsel and services capable of providing social assistance and shelter to victims, as well as the lack of adoption of immediate protection measures” (Inter-American Court of Human Rights, Case of López Soto et al. v. Venezuela, 2018, para. 220).

These barriers are a product of the normalization and invisibility of discrimination and gender-based violence against women and are rooted in the fact that “the prevailing cultural conception is the superiority of men over women” (IACHR, 2011, para. 166). Thus, women, adolescents, and girls face inequalities in accessing justice, and to change this situation, it is not enough to address the structural problems plaguing justice systems in Mexico and the region; something more is needed: a perspective that clearly shows that even if justice systems were efficient, they would not respond to the specific needs of women because they would not be able to counteract the barriers they face due to gender issues.

Care for unaccompanied migrant children and adolescents
Picture: UNICEF / Tanya Bindra, 2019

GENDER PERSPECTIVE
Gender perspective is the lens through which we can identify the barriers that prevent women, adolescents, and girls from accessing justice on equal terms. In Mexico, the Supreme Court developed a methodology for judging with a gender perspective based on contributions from feminist theories. The Supreme Court understands gender perspective as “the methodologies and mechanisms designed to study the cultural and social constructs understood as belonging to men and women, that is, what has historically, socially, and culturally been understood as ‘feminine’ and ‘masculine’” (Thesis 1a. XXVII/2017). Thus, a gender perspective is a methodology that allows us to identify and modify the gender-based barriers that exist to access justice.

The methodology for judging with gender perspective developed by the Supreme Court can be explained through the following elements: a) identifying power asymmetries; b) questioning facts and evidence, discarding prejudices, stereotypes, and gender roles; c) ordering the necessary evidence to make gender discrimination and violence visible if the evidentiary material is insufficient; d) questioning the neutrality of the applicable law; e) applying the human rights standards of all persons involved, and f) using inclusive language (Thesis 1a./J. 22/2016).

IT IS ESSENTIAL TO APPLY GENDER PERSPECTIVE THROUGHOUT THE JUSTICE SYSTEM. THIS MEANS THAT, IN ADDITION TO TRIALS, INVESTIGATIONS MUST ALSO BE CONDUCTED WITH THIS PERSPECTIVE

Applying gender perspective is an important measure to combat the inequality faced by women, adolescents, and girls in accessing justice due to the aforementioned barriers. In Mexico, the courts have taken a firm step toward the effective application of gender perspective in the justice system: the SCJN established through jurisprudence that all judges in the country have the obligation to judge with this perspective, even in cases where the parties do not request it (Thesis 1a./J. 22/2016). Furthermore, a robust tool exists to assist judges in implementing gender perspective: the Protocol for Judging with Gender Perspective (SCJN, 2020).

The above represents considerable progress, but it is not enough to overcome the barriers that create inequality in access to justice for women, adolescents, and girls. To achieve this, it is essential to apply gender perspective throughout the justice system. This means that, in addition to trials, investigations must also be conducted with this perspective, which requires extensive awareness-raising, training, and the development of various institutional safeguards so that all officials involved in the administration and dispensation of justice apply gender perspective as a guarantee of access to justice for women, adolescents, and girls.

ACCESS TO JUSTICE FOR CHILDREN AND ADOLESCENTS: CHALLENGES FOR AN ADULT-CENTRIC CONSTRUCT
The justice system was created by adults for adults; that is, the specific needs of children and adolescents have not been considered in the construction of its institutions and procedures. Justice systems have treated children and adolescents as “little adults,” building expectations about their actions and behavior in legal proceedings that, in the vast majority of cases, they cannot meet due to their developmental stage. For example, when a five-year-old child, a victim of a crime, is required to accurately state the day and time of the assault, the system ignores the fact that, given their level of psychopedagogical development, the child lacks the concept of time necessary to respond as the justice system expects—as an adult would.

When children and adolescents are not treated within the justice system according to their psychological, emotional, and educational needs, in a way that is appropriate to their age, they are not recognized as human rights holders, and therefore their access to justice under equal conditions is not guaranteed. To remedy inequalities in access to justice for children and adolescents, it is essential to implement a methodology that recognizes their specific needs, places their rights at the center, and provides specific measures that enable their participation in justice processes without revictimization.

TO REMEDY INEQUALITIES IN ACCESS TO JUSTICE FOR CHILDREN AND ADOLESCENTS, IT IS ESSENTIAL TO IMPLEMENT A METHODOLOGY THAT RECOGNIZES THEIR SPECIFIC NEEDS, PLACES THEIR RIGHTS AT THE CENTER, AND PROVIDES SPECIFIC MEASURES THAT ENABLE THEIR PARTICIPATION IN JUSTICE PROCESSES WITHOUT REVICTIMIZATION

CHILDHOOD AND YOUTH PERSPECTIVE
Childhood and youth perspective is the methodology that allows for the identification of the specific characteristics and needs of children and adolescents, as well as recognizing them as full subjects of rights. The SCJN has developed this methodology based on the four guiding principles of the Convention on the Rights of the Child: a) best interests of the child, b) equality and non-discrimination, c) participation, and d) the right to life, survival, and development (SCJN, 2021).

Adopting a childhood and youth perspective makes it possible to make the necessary adjustments and modifications to justice systems so that, based on the recognition of the characteristics and needs of children and adolescents, appropriate measures are taken to guarantee their access to justice under equal conditions. This is known as adapted justice (SCJN, 2021) and represents a significant step forward in overcoming inequalities in children and adolescents’ access to justice caused by the adult-centric construction of justice systems. The SCJN has made consistent contributions to adapted justice through the Protocol for Judging with a Childhood and Youth Perspective (SCJN, 2021), as well as through the robust jurisprudential development regarding children’s rights, especially concerning the best interests of the child and their right to be heard and to have their opinions considered. Special mention should be made of the efforts made by the Superior Courts of Justice of some federal entities to make adapted justice a reality through the development of the methodologies of the Hearing Room for People in Vulnerable Conditions (SAPCOV) that are applied mainly in criminal matters, and of the Specialized Room for the Participation of Children and Adolescents (SEPIA) in family matters.

The mentioned efforts represent a major step toward overcoming the inequalities faced by children and adolescents in accessing justice, but it is essential that a child and adolescent-focused methodology be applied throughout the justice system. Investigative processes should be especially sensitive to the needs and characteristics of children and adolescents.

Reenactment of trials held in US courts
Picture: Unnacompanied Children, 2018

CONCLUSIONS
People belonging to vulnerable groups face barriers to accessing justice, resulting in inequalities in the exercise of this right, which in turn guarantees other human rights. Women, children and adolescents, Indigenous people, people living in poverty, the elderly, and people with disabilities encounter obstacles when seeking justice. This text analyzes the barriers that limit, and in many cases restrains, women, and children and adolescents from accessing justice.

In Mexico, the SCJN has taken important steps to overcome these barriers through the development and application of two methodologies: gender perspective and childhood and youth perspective. These efforts are important but have not been sufficient to overcome inequalities in access to justice for women and children and adolescents. It is essential to take the necessary measures to ensure that the entire justice system implements these perspectives.

Furthermore, the progress achieved in the judiciary is at risk with the 2024 constitutional reform, as it seriously undermines judicial independence and, therefore, due process. It also entails the loss of experience of all the judges who were dismissed, who should have had knowledge and training in applying gender and childhood perspectives. The new judges have the constitutional and international obligation to guarantee access to justice under conditions of equality, for which they have the tools already developed by the SCJN. Women, children, and adolescents do not deserve a setback in the progress made in their access to justice.

---