Judicial overhaul will set back rights of Israeli women in private and public life

Raft of bills would give rabbinical courts a status equal to civil courts, allowing religious laws to be applied to divorce, domestic violence and segregation.

Several dozen women, wearing the notable red cloaks and white hats from The Handmaid’s Tale, walked slowly through the crowds of protesters during Monday's mass demonstrations outside the Knesset against the government’s judicial overhaul. Their field of vision blocked by the wide-brimmed head coverings, they walked gingerly, guiding each other carefully.

The women were part of an ad hoc group, Bonot Alternativa ("Building an Alternative"), an umbrella for several local and national organisations intended to draw attention to the effects of these proposed legal changes on women and other minorities.

"These so-called 'reforms' won't be good for anyone," one of the women told Plus 61J Media, whispering quietly and furtively as she continued to act out her role as one of Atwood's handmaids. "But it will be particularly awful for women.

"I'm probably already on a black list," she continued, referring to the list compiled by the far-right Noam Party of feminists and LGBTQ activists before the elections. The list, according to party spokespersons, was intended to be part of their war against those who intend to corrupt traditional Jewish values in the name of gender equality and LGBTQ liberties.

"So this costume doesn't seem so far-fetched, does it?" she added, before rejoining the other "handmaids’.

Despite President Herzog's plea to delay the legislation, and despite the continuing demonstrations, on Monday the Knesset passed the first readings of these provisions by a vote of 63-47.  Justice Minister Yariv Levin (Likud) and Knesset Legislative Committee Chair Simcha Rothman (Religious Zionism) have made it clear that they intend to fast-track these proposals through the required second and third readings until they become law and to fast-track  additional proposals.

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Taken together, these changes will turn the courts into extensions of the government. As Susan Weiss, Founder and Executive Director of the Center for Women’s Justice (CWJ), noted recently in the Times of Israel, there is no government agency in Israel dedicated to identifying and correcting violations of human rights that could “act as some sort of protective shield in the face of the coercive powers of the state”.

Furthermore, the aggressive manner in which Levin, Rothman, Netanyahu have pushed through the legislation, and the belligerent tone they have taken towards their opponents has further emboldened other conservative and religious-fundamentalist parties in the coalition. And due to the lack of separation between religion and State in Israel, this will have far-reaching effects on the rights on women, especially in the rabbinical courts.

The rabbinical courts are already part of the Israeli legal system. Basing their judgements on strict, Orthodox and ultra-Orthodox interpretations of Jewish religious law, which most often accord more rights to men than to women, the religious courts hold exclusive authority over marriage and divorce among Jews. (Marriage and divorce for members of other religions are determined by their respective religious courts.) 

These are completely male systems, in which only men can give testimony or work. In this regard, the public and the press have paid significant attention to the courts' rulings regarding divorce: Since according to their interpretation of Jewish law, a man must be willing agree to grant his wife a divorce, many women are often forced to remain married to recalcitrant husbands, even in cases of wife abuse; or the women are forced to agree to extortionist property and custody demands in order get their husbands to agree to divorce them.

Rabbinical courts also have jurisdiction over conversion; courts will only permit a male and female Jew to marry if the court recognises both of them as Jews. (These courts will not recognise under any circumstances marriage between a Jew and a non-Jew or single-sex marriages). However, until now, and despite this, there have been some constraints on the powers of the rabbinical courts.

A law passed in 1953 allows them to hear custody and property cases only if neither party has filed suit in Israeli civil courts, and, in 1994, the courts further ruled that when they do deal with property and custody issues, the rabbinical courts must do so according to civil legislation in Israel.

Moreover, until now, the Supreme Court could intervene when the religious courts exceeded their jurisdiction or when their rulings flew in the face of natural justice. But the coalition agreements that formed this current government stipulate granting rabbinical courts status equal to that of the civil courts, thus creating a separate and parallel legal system operating according to Jewish religious laws.

“If that happens, it means people will be able to sue others in rabbinical courts as if they were courts in every respect, including on issues like torts, labor law, contracts and real estate, and they will therefore be able to apply religious law to every part of life in Israel," warns Batya Kahana-Dror, who specialises in family law and the rabbinical courts and sits on the Jerusalem Bar Association’s family law committee.

“The first to be harmed will be religious women, says Professor Ruth Halperin-Kaddari, an expert on family law, Jewish religious law, and feminist critique at Bar-Ilan University and head of its Rackman Centre for the Advancement of the Status of Women. “For instance, ultra-Orthodox schools’ female employees, who are weaker [in status] in any case, will have trouble negotiating against a demand to settle a dispute in the rabbinical court."

This increased power of the courts would combine with the judicial reforms to leave women with no recourse. The judicial overhaul includes passing an "override clause," which would allow the Knesset to re-legislate laws struck down by the court and abolishing the legal justification of "reasonableness," according to which judges cancel Knesset and government decisions based on whether they consider them "reasonable."

Religious authorities will thus be able to legalise discrimination on the basis of religion, permit businesses to refuse entrance to women or to women who are not "modestly dressed" (which has already happened in some supermarkets). In 2011, the Supreme Court determined that coercive segregation of the genders on public buses was a violation of equality and dignity, and has placed strict limitations on gender segregation in academia for religious reasons.

But the Knesset could now pass legislation to decriminalise segregation in public places, and the Supreme Court, if the override clause is introduced into law - and the standard of reasonableness is abolished, will be powerless to stop it.

Recently, three feminist groups – the Israel Women's Network, Naamat, and Forum Dvorah - appealed to the Supreme Court to instruct the government ensure that at least half of the newly-appointed directors-general of government ministries be women. (In the meanwhile, one woman has been appointed).  In the future, this may no longer be possible.

Warns Yoffi Tirosh, Vice Dean at the Faculty of Law at Tel Aviv University and a human rights activist, "The men in power in the government, especially, but not just in the ultra-Orthodox parties, believe women step back from leadership positions in politics, science, economics and the media, and should resort to their true nature - their domestic roles. And they are doing everything they can to make this happen."

Issues such as these, and coverage of the mass protest movements, have dominated headlines and public discussions for weeks. Yet so far, in the month of February 2023 alone, four women were murdered by intimate partners or family members.

Yet, as MK Pnina Tamanu-Shata, speaking on Israeli radio, has noted, this government has been so busy with the judicial issues, that it has "not taken basic steps that it could in order to combat violence against women".

A law mandating the wearing of electronic monitors for men convicted of violent abuse against women passed its first reading in the previous Knesset and has been prepared for its second and final readings.  "It would be very easy for the government to pass this simple law, which could mean the difference between life and death for women," she argued. 

Moreover, in November 2021, a ministerial committee allocated NIS 155 million (approximately $A61 million) for a broad-based National Program to Combat Violence Against Women. But despite her appeal to Finance Minister Bezelel Smotrich (Religious Zionism), the funds have not been budgeted.

Finally, she notes sadly, this government shows no intention of using a gendered lens, that is, considering the differential effects that various policies may have on men and women. In the wake of increased lone-wolf terrorist attacks, for example, Minister of National Security Itamar Ben-Gvir, has called for a five-fold increase in gun permits throughout Israel.

But according to data from women's organisations, such as Gun-Free Kitchen Tables, in 2019, one out of the three women murdered in Israel was murdered by a man who held a license for the firearm that killed her.

Also as part of the coalition agreements between the Likud and the Religious Zionist Party, Israel will not sign the Istanbul Convention, one of the most important international tools for combatting violence against women.  Countries that accede to the convention are required to legislate strict laws on the prevention of domestic violence, protection of victims, prosecution and policy coordination.

The convention officially opened for signing in 2011, has been signed by 45 countries and the European Union. By not signing, Israel has positioned itself alongside countries such as Hungary, Turkey, and Russia.

Photo: Israeli women in a protestation act dressed as characters from The Handmaid's Tale series march during the demonstration last week (Matan Golan/SOPA Images/Sipa USA)