The Proposed High Court Override Clause Will Reverse Gender Equality Gains

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The new coalition's shortage of women and its proposed High Court override clause are a danger to the struggle for gender equality in Israel.

In the past, the High Court of Justice ruled against compulsory gender separation, such as on public transportation. The override clause is liable to strike down this and similar rulings outlawing separation in the public domain. We face the prospect of growing gender separation in key arenas becoming a routine phenomenon, backed up by legislation, and in a situation in which the High Court is unable to intervene.

The low level of women’s representation in the 25th Knesset and the scarcity of women representing the parties likely to form the coalition are not the only factors that render the success of the constitutional struggle for gender equality and women’s rights as highly unlikely. Added to these factors is the declared intention to pass into law the override clause, which may turn back the clock on years of achievements and gains made in this struggle, including those relating to women’s representation.

If the Knesset does indeed introduce the override clause, enabling it to pass legislation with a majority of 61 Knesset members even if the High Court has ruled that the law in question contravenes rights anchored in a Basic Law, this may well deal a blow to women’s rights. Many of these rights were first acknowledged and articulated or were given protection in High Court rulings.

Thus, for example, the equal right of men and women regarding retirement age was first acknowledged following a petition submitted to the High Court by Naomi Nevo. Another example is the requirement to ensure equitable representation of women on the boards of directors of government companies, bolstered by a High Court ruling in response to a petition from the Israel Women’s Network.

Similarly, the High Court ruling on a petition from Itach-Maaki Women Lawyers for Social Justice, regarding the composition of the Turkel Commission, to ensure the implementation of the requirement of equitable representation of women in teams charged with shaping national policy.

Over the years, the High Court has been the go-to address for those seeking to ensure the most basic protections for women. It intervened in the case of Merav Ben-Nun, a single mother with a hearing disability, who needed a car in order to care for her children and transport the equipment necessary for her job.

The court struck down a clause in the National Insurance Law that was the basis for Ben Nun having her income support benefit revoked because she used a car. Similarly, the court protected a woman’s right to ownership of her home during divorce proceedings involving the distribution of shared property, when she stood to lose this right simply on the basis of her husband’s claim that her infidelity was the reason for their divorce.

In all these cases and in others, the High Court has acted to defend fundamental values, including both those anchored in basic laws passed by Knesset and those anchored in other legislation, as in the cases of ensuring equitable representation.

The High Court is not perfect but it is essential

IT IS certainly valid to critique those cases in which the court has not ensured full protection of rights, but the fact that it offers recourse in cases in which women’s rights are impinged upon and acts as an essential shield for those rights is critical. Without this defense, women’s rights will be much more vulnerable.

The override clause will give the Knesset a free hand to legislate laws that impinge on women’s rights, including their right to equality, autonomy over their bodies, a decent standard of living and freedom from any coercion stemming from their identity as women. The High Court will not be able to intervene if legislation is introduced to overturn the absolute ban on the separation between men and women in the public domain, as is currently being discussed in the coalition negotiations.

In the past, the High Court has forbidden forced gender separation on buses, but the override clause will make it easy to override these rulings. In such a scenario, the separation we have seen in public spaces in recent years will become the norm, with strong legislative backing from the current Knesset – not only at cultural events but as part of our daily routine.

Alongside the override clause, other ideas have also been recently proposed including restrictions on the standing of High Court petitioners, which would limit the right of women’s groups to appeal to the High Court. This would exponentially increase the damage inflicted.

The barriers facing women, especially those from more insulated communities, who seek to submit individual petitions to the High Court are great, as is the social pressure to which they are subject. Preventing women’s organizations from petitioning the court on their behalf, and thus representing women’s interests more broadly, would also directly abuse their rights.

Some will argue that these examples raise unnecessary fears, as no one has any interest in abusing women’s rights or hindering the struggle for gender equality. But a quick glance at the processes underway today in countries such as the United States and Poland shows that women’s rights over their bodies and their privacy must no longer be taken for granted.

Given that two of the senior parties in the likely governing coalition have no women in their ranks, due to the belief that women do not belong in the public arena, and taking into account various statements from representatives of other coalition parties regarding women’s role in society, this concern is not the least bit unfounded or exaggerated.

Thus to protect women’s rights, the legislation of the override clause must not be allowed to proceed, and female Knesset members from the Right and the Left, as well as anyone committed to the struggle for gender equality, must act to prevent this move. After all, it is the democratic character of Israel, and a proper system of checks and balances that protects us all: women, mothers and daughters.

The article was published in the Jerusalem Post.