Women's Equal Rights Law of Israel (1951)

Former Senior Deputy State Attorney for the Israeli Ministry of Justice Plea Albeck heralds the law for ensuring “most rights are enjoyed equally by men and women” and states “special provisions relating to women, for the most part, are regarded as benefits rather than disadvantages.”[2] These “special provisions” grant women a “privileged status,” and include things such as women serve a shorter military service than men and mothers and pregnant women are exempt from service completely; married women are allowed to own and maintain property as if they were unmarried and their spouses have no claim to any profit from this property; and women are allowed to use contraceptives and seek a medical abortion without the consent of her husband.[3] These examples of legal privileges for women are cited as positive outcomes of the Women’s Equal Rights Law. Albeck further explains in her 1972 article, “The Status of Women in Israel,” that the law is intended to both (1) ensure women share the same rights as men and (2) to preserve the special rights and privileges granted to women.[4]

While supporters of the law champion its provisions for ensuring special privileges for women, this section also garners criticism, as many aspects of “privileged status” come from religious law. Frances Raday, the currently head of the Concord Institute for the Study of the Absorption of International Law in Israel, explains “one of the main reasons for the demotion of the principle of equality in the Israeli legal system is deference to religious values.”[5] The State of Israel identifies as a state that is both Jewish and Democratic, yet often finds its religious and political values at odds. Much of the criticism for the Women’s Equal Rights Law stems from the debate over religious versus secular democratic values. Pnina Lahav, researcher and professor of law at Boston University, criticizes the law for both the “maintenance of religious jurisdiction over matters of marriage and divorce and the legitimation of a privileged status for women.”[6]

Criticism for the law largely stems from the notion that rather than foster true sex equality, the law’s declaration of a “privileged status” delineates women as “separate but equal.”[7] Although people from across the religious and political spectrum applaud the law for guaranteeing a separate status for women, critics argue that this separate status undermines female equality. The term “equal” as used is not understood the same as the term “equal” would be in the American sense of the word. The Israeli use of the term equal implies, according to feminist intellectual Catherine MacKinnon, the “Aristotelian notion that equality entails the treatment of likes alike and un-likes differently in accordance with their unlikeness”.[8] This interpretation of equality influences Israeli policy on gender equality and enabled the restrictive laws prohibiting women from entering combat positions in the Israeli Defense Forces. This "separate but equal" ideology also influenced Israel to create the Women's Corps Women's Affairs advisor as a separate unit.[9]

In 1955, widowed mother of three Halima Bria, got remarried. Under Sharia Law (which she was married under and in Israel has legal authority in civil cases) a women with children who remarried was no longer seen in Israeli legal terms as the "natural guardian" for her very own children. She was brought to trial by her sister-in-law who was attempting to remove Halima's children from her custody. The only way in which Israeli law can trump a ruling by the religious courts (Islamic, Jewish, or Christian) is if the religious court "intentionally" ignored Law 5711-1951. The Israeli High Court did not side with Halima Bria and her children were removed from her custody.[11] This case was important because it set the legal standard of allowing the various religious courts to have what amounts to near full autonomy in their rulings. This separation of civil and criminal law still is a huge obstacle for those fighting for gender equality in Israel.

In 1951 shortly after 5711-1951 passed in the Knesset Israel's first sex discrimination case was brought to the High Court of Justice. In this case Haim Steinberg, who was part of the Haredi Jewish sect called Neturey-Karta, refused to serve in the new Israeli Defense Forces. His argument was that if he was a women of the Neturey-Karta sect he would be given a religious deferment, but because he was a man he was being denied that "right". The court rejected his appeal not because he was a man but on the grounds that his sect did not recognize the state of Israel as being legitimate or having any legal authority.[12] This set important legal precedent for future cases of gender discrimination in the armed forces. It also put into layman's terms the Israel policy of favoring men in their military over women. Israel had/has many loopholes and ways for a women not wishing to serve to take; few such avenues are available for men in Israel.

This law, later amended in 1999, allows all women access to any position in the Defense Forces that they qualify for. Though the law stipulates that both men and women must perform military service for their country, it is still far easier for a women to be exempted then it is for a man. Women can still be exempted for their own religious or conscientious reasons. They are then supposed to substitute military service for "national service" for their required two years, although this seems to be rarely implemented. Men are subjected to the IDF's discretion if they are allowed to be exempted or not. The only exception being those studying to be rabbis at the country's various yeshivas.[9] These of course are male only and yet another source for dissatisfaction among those demanding gender equality in Israel.