Adv. Hagai Kalai
Segregation of women in the public sphere in Israel is a phenomenon that has gained public attention in recent years, although its roots are historical. The phenomenon of segregation of women may be classified into three tiers: segregation of women in commercial and public institutions that are not state owned and that are used by the public at large, segregation of women at commercial and public institutions that are not state owned and are intended primarily for a religious and ultra-orthodox population, and segregation of women in the state owned public sphere. Another important distinction is between segregation of women that manifests in separation of men from women while both genders receive the same level of service (separate but equal) and segregation of women manifesting in separation of men and women and provision of a higher level of services to one of the gender, usually men. It is also important to state that the segregation of women has developed alongside additional segregation mechanisms that have become increasingly common in Israel, including segregation based on nationality, separation of Jews and Arabs and segregation based on religious community and Jews of Ashkenazi and Oriental descent.
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In general terms, the current situation report is complex. There is no dispute that every separation of men and women that leads to the provision of services of a lower level for one of the sexes is forbidden. In addition to this, involuntary separation is forbidden (i.e. providing services in separate tracks requires ensuring the possibility of receiving the same services of identical quality without separation). Involuntary separation will only be permitted for a product or service that requires separation by nature.
Although these principles are clear at the theoretical level, at the practical level it is not always clear to what extent the segregation of women is prohibited. Firstly, it is difficult to prove legally the argument that the service is not provided at the same level to both genders, where there is no formal discrimination but there is hidden discrimination. Secondly, the Knesset, the government and the Supreme Court have not yet clearly defined the “core” services that by nature and religious character permit the segregation of women.
Are women allowed to be denied jobs with religious affiliation or in religious institutions?
The fundamental principle of Israel’s legal system is that every job must be open to men and women alike. The principle lies on the Human Dignity and Liberty basic Law and the Freedom of Occupation Basic Law. The Equal Work Opportunities Law has established this constitutional duty explicitly. This duty applies to public institutions and commercial institutions alike. As a rule, abstention from employing women is prohibited, even if the proposed job has an affiliation with religion (e.g. in a religious council) or is undertaking in a religious institution. In two important verdicts (Shkediel and Poraz) 1, the supreme court compelled the state to allow women to participate in religious councils, and later required women to be allowed to argue before the rabbinical court2 and to serve as arbitrators in proceedings before the Sharai Court3. Alongside this, all duties of adequate representation for women that apply pursuant to general law also apply to religious institutions and functions that are related to religion.
Bottom Line – Although there may be extraordinary cases of jobs where the core is in religious authority and therefore women may be segregated participation, the general principle prohibits the segregation of women from any function, including one that is related to religion or a religious institution. Discrimination against women in job acceptance is a civil tort and grants the injured party a right to action.
Is the separation of men and women in the public sphere permitted?
Segregation of men and women in the public sphere is prohibited, because of its severe infringement on constitutional rights to dignity, equality, and freedom of movement. Therefore, the Supreme Court has prohibited any separation in the street, whether by building a partition or in any other way(4).
Similarly, separation of men and women in cemeteries is illegal(5), and the Supreme Court is currently hearing a petition against the hermetic segregation in time and place of studies between men and women at academic institutes that apply to the ultra-orthodox public(6.) The only case in which separation has been permitted in the public sphere is related to the Women of the Western Wall. There it has been ruled that separation based on gender is permitted in part of the complex, as long as those who wish to pray without separation in their own manner will be allocated an appropriate praying area (in this case – the Robinson’s Arch Square).7
Further to this, in view of the expansion of the phenomenon of segregation of women in the public sphere, the government ordered the formation of a committee to examine the state of segregation of women in Israel,8 and to made a decision that prohibited any form of segregation of women.9 This decision is not merely declarative, and compels all ministries of the Government to examine and eradicate the segregation of women in their fields of responsibility. Based on this decision, the Deputy Attorney General, Dina Zilber, ordered the immediate cancellation of segregationary practices in state agencies, such as separation of men and women in protected spheres of rabbinical courts during Operation Defensive Edge.
Bottom Line – No partition may be built or any other separation made between men and women in the public sphere, even if most of the population in the area is religious or ultra-orthodox. The only space in which gender separation may be held is in unique sites of worship (such as the Western Wall). This separation is only permitted if those asking not to permit it have an appropriate, equivalent alternative.
Can men and women be separated in the provision of services?
The Prohibition of Discrimination in Products, Services and Entry to Entertainment Establishments and Public Places Law requires any entity, public or commercial, to provide service irrespective of gender, gender, sexual tendency, etc. A woman who has been discriminated against is entitled by law to compensation without proof of damage to the sum of NIS 50,000. The Supreme Court has ruled that the act of distinguishing men from women may constitute discrimination by law. 10 Section 3 of the law qualifies and states that “the existence of separate frameworks from men and women, when abstaining from separation will deny part of the public the provision of the public product or service, the entry to the public place or the provision of the service in the public place, as long as the separation is justified, considering, inter alia, the character of the product, public service or public place, its degree of vitality, the existence of a reasonable alternative to it, and the needs of the public that may be adversely affected by the separation” is not considered to be discrimination. The Court has ruled that the exception is to be interpreted restrictively and that discriminatory practice may not be held in the guise of religious reasons.11
The question of separation in the provision of service arose in its full intensity in the Ragen case, in 2011.12 In that case, the legality of separating men and women in “Mehadrin” buses, used primarily by the ultra-orthodox population, although some serve the secular population too (such as line 400 traveling from Bnei Brak to Jerusalem and passing on the way through Aluf Sadeh Interchange to Tel Hashomer army base) was heard. Supreme Court Justice Elyakim Rubinstein ruled that the existence of separation of men and women was permitted as long as it is voluntary and there are sufficient mechanisms for preventing forced separation. However, the Court set a very high level of proof of absence of mechanisms that prevent forced separation and rejected the evidence that was filed concerning the presence of such separation.
At the bottom line – separation of men and women in the provision of services constitutes prohibited discrimination. However, gender based separation may be applied in the provision of services if three conditions are fulfilled – 1. The separation is in a service whose primary purpose is for the religious or ultra-orthodox population that is interested in separation, and there is a parallel, identical service that does not maintain separation. 2. The separation is completely voluntary. 3. There are enforcement mechanisms that ensure that the separation will not be forced on women who are uninterested in it.
May the displaying or participation of women be prevented in view of concern of offending the sensibilities of the religious public?
Abstention from displaying of women, like abstention from providing service to women, is discrimination that is prohibited under the Prohibition of Discrimination in Products, Services and Entry to Entertainment Establishments and Public Places Law. Although an entity is allowed to abstain from the publication of provocative images that contravene the general line that it is taking, no entity that has a publication is allowed to avoid identical publication of men and women (and similarly, a body is not allowed to abstain from publishing a notice that applies to the gay community owing to fear of hurting the feelings of the religious public13). In a list of cases, it has been ruled that any entity that maintains advertisements, such as public transport and media entities, must allow publication of advertisements that include the figures or voices of women. For example, a class action has been certified against Kol Barama Radio for segregation of women from broadcasting14, and the Egged chain was sued for segregation of women from advertisements on buses.15
Bottom Line – A commercial body that provides a stage for advertisements or that maintains public forums (such as the radio or a conference hall) is not allowed to prevent representations of women in the public forums or in advertisements, by arguing that these offend the sensibilities of the religious public. Prohibition of participation of women or showing of figures or voices of women is prohibited discrimination, the victim of which may win compensation without proof of damage of up to NIS 50,000.
May women be segregated in order to advance the integration of ultra-orthodox men in military service, higher education or employment?
In recent years, the public purpose of integration of ultra-orthodox men in military service, higher education and employment, has raised concern that it leads to systematic segregation of women from these places. For example, the procedures of the Shachar Program (for ultra-orthodox integration in the military” and the Bina Bayarok program (ultra-orthodox integration in military intelligence units) ban women from serving as direct commanders of ultra-orthodox male soldiers and prohibit men and women from being in the same room. Further to this, a public debate arose concerning the legitimacy of restricting the singing of women in official events and military institutions in order to fulfill the requirements of the ultra-orthodox public. As a rule, women may not be prejudiced against in order to encourage the participation of ultra-orthodox men in military service, higher education or employment. The only case that has reached the Supreme Court is the question of the limits of segregation of women in programs for integrating ultra-orthodox individuals in higher education (no verdict has yet been handed down in the proceeding). However, in effect, most of the segregation of and prejudice against women that result from this program are hidden segregation that is not vested in official plans, but occurs de facto. Therefore, it is usually difficult to prove segregation, and often the segregating entity does not have sufficient mechanisms for review and control to prevent this segregation.
At the bottom line – As a rule, infringement on the rights of women, by way of segregation or discrimination, even within programs that aim to integrate the ultra-orthodox population. It has yet to be determined the standing which an entity must maintain in order to ensure that discrimination against or segregationsegregation of women does not exist.
* The account above is a general description of the law and cannot serve as an alternative to receiving a legal expert opinion.
1 High Court of Justice 953/87 Poraz v. Mayor of Tel Aviv, Supreme Court Verdict 62(2), 309 (1988); High Court of Justice 153/87 Shkediel v. the Minister of Religious Affairs, Supreme Court Verdict 62(2), 221 (1988).
2 High Court of Justice 6300/93 Institute for Rabbinical Advocates Training Institute for Women v. Minister of Religious Affairs, High Court verdict 48(4), 441 (1994).
3 High Court of Justice 3856/11 Jane Doe v. Sharai Court (published in Nevo, June 27, 2013).
4 High Court of Justice 6986/10 Azaria v. Israel Police (published in Nevo, September 28, 2010); High Court of Justice 7521/11 Azaria v. Israel Police (published in Nevo, October 16, 2011).
5 Small Claims 22333-13-03 Davidian Michaeli v. Hevra Kadisha Ofakim (published in Nevo, June 15, 2012), following the verdict the Circular of the Director General of the Ministry of Religious Affairs on the subject was changed and a Circular of the Director General of the Ministry of Religious Services of February 27, 2013 dealing with “the funeral ceremony” was published.
6 High Court of Justice 6667/14 Tirosh v. Council of Higher Education (the writer of the page is representing the petitioners in this petition).
7 No actual site of worship has been developed, and to this day the exclusion of women from the Western Wall square has not yet been cancelled. Recently, this struggle has been resumed with the support of a number of female members of Knesset (Tamar Zandberg and Michal Rozin of Meretz and Stav Shafir of the Labor party) and a verdict has been handed down stating that women’s worship does not constitute an infringement of instructions of the court, in view of the failure to develop an appropriate worshipping site for these women.
8 Ministry of Justice, report of the ministerial team for examining the phenomenon of exclusion of women in the public space (2013) http://bit/ly/1tZxPxc
9 Resolution 1526 or the 33rd Government on the subject of “prevention of exclusion from women in the public space” (March 30, 2014).
10 The Supreme Court has also ruled that the act of differentiating men from women may be discriminative, see Leave for Civil Appeal 821/09 Projansky v. Layla Tov (published in Nevo, November 16, 2011).
11 Civil Appeal (Tel Aviv) 35563-02-12 the Individual Rights Society, Registered Association, v. Makor Rishon Hameuchad (Hatzofe) Ltd. (published in Nevo, January 12, 2014).
12 High Court of Justice 746/07 Ragen v. Ministry of Transport (published in Nevo, January 5, 2011).
13 Civil Appeal (Tel Aviv) 35563-02-12 the Individual Rights Society, Registered Association, v. Makor Rishon Hameuchad (Hatzofe) Ltd. (published in Nevo, January 12, 2014).
14 Class Action 39/12 Kolech – Religious Women’s Forum v. Kol Barama Radio
15 High court of Justice 39/12 Jerusalem Movement Society v. State of Israel (published in Nevo, May 4, 2014). The petition was withdrawn after agreements were reached between the parties.