The Mexican Supreme Court of Justice (MSCJ) has developed three protocols related to different types of discrimination: gender-based discrimination, ethno-racial discrimination, and discrimination against persons with disabilities. I analyze the use of the three differential perspectives as tools for facing complex forms of discrimination that are deeply rooted in structural social inequalities: sexism, racism, and ableism. Drawing on the sociological concepts of structural and categorical inequality, I analyze cases in which the MSCJ has used the protocols and identify whether the judgment addresses the structural dimension of inequality. The analysis shows that, most of the judgments do not incorporate the structural side and tackle only the discriminatory outcome. I argue that the foundation of differential perspectives to judge should be the structural problem that underlies discriminatory practices.
In the paper the author aims to develop a criterion to determine if different forms of expression can constitute forms of discrimination by themselves or if it is necessary for them to be accompanied by something else to constitute a discrimination. In short, it is not the expression —written or oral— on its own, in addition to the expressive dimension it is necessary an authoritative one. For that purpose, he will revisit the tension between the freedom of expression and the non-discrimination clause, in general, by identifying the cases in which an expression reinforces an indirect or structural discrimination, regardless of the clear and present danger test or for being unintentional, because it proceeds from a position of authority or power. Finally, his conclusion is basically that the time has come not only to speak of classism, elitism and racism, but also to put an end to it.
My paper identifies and critically analyzes the main trends that emerge from an overview of equality and-non-discrimination case law by the Mexican Supreme Court over the last two decades. In approximately twenty years, the Court has evolved from not really deploying equality scrutiny to have a modest, but at any rate significant body of criteria, at least in what concerns direct discrimination and use of a series of categories of classification and distribution. The analysis emphasizes the areas where more litigation has existed and those where developments are still scarce (indirect and structural discrimination, substantive equality, socio-economic discrimination), and signals a set of issues that, prospectively, should desirably enter the Mexican judiciary docket—and the corresponding adjudication developments.
International human rights law has played a key role in terms of equality and non-discrimination in Mexican constitutional case law in the last decade. In the first stage, a major ruling against the Mexican State in the Radilla case was issued by the Inter-American Court. The second begins with a broad constitutional reform that promoted a decisive opening of the Constitution to international treaties. The third is regressive because it elevates the legal weight of constitutional restrictions to human rights. The fourth stage normalizes the application of international law. Mexican constitutional practice has changed remarkably in the last 10 years as never before. However, this normative system has not yet had a positive impact on the collective state of rights, structural inequalities and discrimination in Mexican society.
In the last years the number of women in the legal professions in Mexico has sharply increased. At the present the number of women and men graduated from law schools in Mexico is practically the same. In spite of this steep increase of women’s presence in the legal professions, the higher positions in the judicial organizations’ hierarchies remain dominated by men. For instance, according to the 2020 census, 83.3% of the circuit judges are men while only 17.3% are women. Vertical segregation by gender continues to evident. This paper explores the reproduction and survival of gender discrimination patterns in law firms and the Federal Judiciary with original data form a survey to 871 lawyers and members of the judiciary.