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The Boundaries of Social Transformation through Litigation: Women's and LGBT Rights in Israel, 1970–2010

  • Yoav Dotan (a1)
Abstract

The global expansion of judicial power and the rise of litigation as a vehicle for social transformation are two conspicuous social phenomena that are subject to intensive research by social scientists and lawyers alike. One of the most hotly debated questions in this regard relates to the potential value of law in general, and litigation in particular, as a strategy for social change. This article examines the question by comparing the struggle for equality in Israel by two groups – women's rights activists and lesbian, gay, bisexual and transgender (LGBT) rights activists – between 1970 and 2010. The struggles of women and LGBT people for equality have many shared characteristics, since both challenge the traditional conservative patriarchal social model. In Israeli society, moreover, both LGBT rights activists and women's equality activists faced the same political rivals: the powerful macho-type socio-political mentality, rooted in the central status of the military in Israeli society, and the strong hold of Jewish ultra-orthodox parties in the political system. The strategies that the two groups adopted to overcome these obstacles, however, were markedly different. While women's groups adopted an elitist strategy of struggle that concentrated on legal measures, LGBT rights groups adopted a variety of strategies that emphasised grassroots political tactics. The article examines the success of each group in achieving its political objectives by using cross-country comparative indexes of LGBT and women's rights. I argue that the comparison between the two groups points to the relative weaknesses of legal and litigation-centred strategies as vehicles for social transformation.

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References
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1 For example, Shamir, Ronen, ‘Litigation as a Consummatory Action: The Instrumental Paradigm Reconsidered’ (1991) 11 Studies in Law, Politics and Society 41; McCann, Michael W, Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (Chicago University Press 1994).

2 Marshall, Anna-Maria, ‘Injustice Frames, Legality and the Everyday Construction of Sexual Harassment’ (2003) 28 Law and Social Inquiry 659; Pedriana, Nicholas, ‘Help Wanted NOW: Legal Resources, the Women's Movement and the Battle over Sex-Segregated Job Advertisements’ (2004) 51 Social Problems 182; Pedriana, Nicholas, ‘From Protective to Equal Treatment: Legal Framing Processes and Transformation of the Women's Movement in the 1960s’ (2006) 111 American Journal of Sociology 1718, 1720. Litigation may sometimes carry other benefits for movements for social change. It can provide groups with more media coverage and thus generate power at grassroots levels (eg McCann (n 1) 58). Litigation may also help social movements to reconstitute and shape their claims and the organising principles for their actions, thus serving as a process of ‘framing’ and ‘reframing’ the conceptual tools and perspectives of such movements (see references in this note). This may be the case even if the litigation ended in the social movement's defeat: NeJaime, Douglas, ‘Winning through Losing’ (2011) 96 Iowa Law Review 941, but cf Albiston, Catherine, ‘The Dark Side of Litigation as a Social Movement Strategy’ (2011) 96 Iowa Law Review Bulletin 61.

3 McCann, Michael W and Silverstein, Helena, ‘Rethinking Law's Allurements: A Relational Analysis of Social Movement Lawyers in the United States’ in Sarat, Austin and Scheingold, Stuart A (eds), Cause Lawyering: Political Commitments and Professional Responsibilities (Oxford University Press 1998) 261.

4 Lon L Fuller, ‘Law as an Instrument of Social Control and Law as a Facilitation of Human Interaction’ [1975] Brigham Young University Law Review 89;Horowitz, Donald L, The Courts and Social Policy (Brookings Institution Press 1977).

5 Scheingold, Stuart A, The Politics of Rights: Lawyers, Public Policy, and Political Change (Yale University Press 1974); Shamir, Ronen, ‘“Landmark Cases” and the Reproduction of Legitimacy: The Case of Israel's High Court of Justice’ (1990) 24 Law and Society Review 781; Rosenberg, Gerald N, The Hollow Hope: Can Courts Bring About Social Change? (2nd edn, Chicago University Press 2008).

6 Scheingold, ibid; McCann and Silverstein (n 3).

7 Throughout the article I use the terms ‘gay’, ‘gay and lesbians’ and ‘LGBT’ interchangeably unless otherwise specified. Women's and gays' groups overlap with regard to lesbian women. In the current research I refer to lesbian women as part of the gay group movement since analytically the struggle of lesbians qua lesbians to promote their right to equality should be regarded as part of the gay rights movement, and empirically the struggle of lesbians for social equality in Israel was intertwined with the gay rights movement. This, of course, does not imply that some lesbian women were not involved as individuals in the struggle to promote women's equality.

8 For example, Rosenberg (n 5); McCann (n 1); Epp, Charles R, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago University Press 1998); Goldberg-Hiller, Jonathan, The Limits to Union: Same-Sex Marriage and the Politics of Civil Rights (Michigan University Press 2004); Strasser, Mark, On Same-Sex Marriage, Civil Unions, and the Rule of Law (Greenwood 2002); Eskridge, William N Jr and Spedale, Darren R, Gay Marriage: For Better Or For Worse?: What We've Learned from the Evidence (Oxford University Press 2006); Pinello, Daniel R, America's Struggle for Same-Sex Marriage (Cambridge University Press 2006); Gerstmann, Evan, Same-Sex Marriage and the Constitution (2nd edn, Cambridge University Press 2008).

9 Lior Ben David, ‘The Rights of Same-Sex Partners in Israel’, Research and Information Center of the Knesset, 28 November 2004, http://www.knesset.gov.il/mmm/data/pdf/m01045.pdf (in Hebrew).

10 Horowitz, Dan and Kimmerling, Baruch, ‘Some Social Implications of Military Service and the Reserve System in Israel’ (1974) 15 European Journal of Sociology 262; Dotan, Yoav, ‘The Spillover Effect of Bills of Rights: A Comparative Assessment of the Impact of Bills of Rights in Canada and Israel’ (2005) 53 American Journal of Comparative Law 293; Kama, Amit, ‘From Terra Incognita to Terra Firma: The Logbook of the Voyage of Gay Men's Community into the Israeli Public Sphere’ (2000) 38(4) Journal of Homosexuality 133.

In 2001, a comprehensive report was issued by the Political Council for Gays Rights in Israel: see Political Council for Gays Rights in Israel, ‘The Annual Report’, 26 August 2001, http://glbt.org.il/Files/1254693922_first_gay_political_report.pdf.

11 See Section 4.1 below.

12 See McCann and Silverstein (n 3).

13 CA 6821/93 United Mizrahi Bank v Migdal 1995 PD 49(4) 221.

14 Dotan (n 10).

15 The HCJ is one of the functions of the Supreme Court of Israel. When a civil or criminal dispute arises in Israel, it normally makes its way into a county court and then, on appeal, to a district court. Only a handful of such cases reach the Supreme Court as a third instance of cassation. The Supreme Court also sits as an appellate court for cases involving serious criminal offences and high-value civil disputes. Such cases are referred directly to a district court and, on appeal, to the Supreme Court. Most cases involving the exercise of legal powers by public agencies are brought directly before the Supreme Court, and are resolved by this Court with no right of appeal. Therefore, the Supreme Court in Israel, in fact, serves as three different functions: as a court of cassation, as a court of appeal, and as a court of first (and last) instance in judicial review cases (HCJ). The structure of public law litigation was reformed in 2000, with various categories of litigation being placed under the jurisdiction of the district courts (Administrative Affairs Courts Law, 2000 (Israel)). The HCJ still serves as the principal court for judicial review in Israel.

16 HCJ 26/76 Bar-Shalom v Zore'a 1977 PD 31(1) 796.

17 HCJ 287/69 Meiron v Minister of Labour 1970 PD 24(1) 337; HCJ 11/79 Mirkin v Minister of Interior 1979 PD 33(1) 502. cf in the United States where the doctrine of standing is still kept within similar boundaries (eg Simon v Eastern Kentucky Welfare Rights Organization 426 US 26 (1976); Lujan v Defenders of Wildlife 504 US 555 (1992) 560; Arend, Anthony Clark and Lotrionte, Catherine B, ‘Congress Goes to Court: The Past, Present, and Future of Legislator Standing’ (2001) 25 Harvard Journal of Law and Public Policy 209, 213–18.

18 HCJ 186/65 Reiner v Prime Minister of Israel 1965 PD 19(2) 485; HCJ 561/75 Ashkenazi v Minister of Defence 1976 PD 30(3) 309; Menachem Mautner, Law and the Culture of Israel (Oxford University Press 2011) 56. The doctrine of justiciability was applied by Israeli courts in a way that was roughly equivalent to the use of the doctrine of equitable discretion with regard to congressional suits in some federal cases in the US: see, eg, Riegle v Federal Open Market Committee, 656 F 2d 873 (DC, Cir 1981) 882; Arend and Lotrionte (n 17) 236 and fn 149.

19 HCJ 910/86 Ressler v Minister of Defence 1988 PD 42(2) 441.

20 HCJ 389/80 Dapei Zahav v Israel Broadcasting Authority 1980 PD 35(1) 421.

21 HCJ 297/82 Berger v Minister of Interior 1983 PD 37(3) 29.

22 HCJ 5510/92 Turkeman v Minister of Defence 1994 PD 48(1) 217; Zamir, Itzhak, ‘Unreasonableness, Balance of Interests and Proportionality’ in Zamir, Itzhak and Zysblat, Allen (eds), Public Law in Israel (Clarendon Press 1996) 327.

23 HCJ 680/88 Schnitzer v Chief Military Censor 1989 PD 42(4) 617; HCJ 428/86 Barzilai v Government of Israel 1986 PD 40(3) 505; Dotan, Yoav and Hofnung, Menachem, ‘Legal Defeats – Political Wins: Why Do Elected Representatives Go to Court?’ (2005) 38 Comparative Political Studies 75.

24 Since 1980 there has been a dramatic rise in the number of petitions issued by interest groups. In 1980 only 1.5 per cent of the petitions to the HCJ were filed by interest groups; their share of the HCJ docket climbed to 5.9 per cent in 1989, and 12.4 per cent in 1995 (see Yoav Dotan and Menachem Hofnung, ‘Interest Groups in the Israeli High Court of Justice: Measuring Success in Litigation and in Out-of-Court Settlements’ (2001) 23 Law and Policy 1, 16.

25 While the current analysis focuses on women's rights after the formation of the State of Israel, it is worth mentioning that women in the pre-state period also struggled for gender equality. For a description of women's efforts to enter the legal profession in Mandatory Palestine see Katvan, Eyal, ‘No More “Parsley to the Salad”: The Entrance of Women to the Bench and the Legal Profession in Mandatory Palestine and in Israel’ (2010) 32 Iuinei Mishpat 69 (Tel Aviv University Law Review) (in Hebrew); Katvan, Eyal and Halperin-Kaddari, Ruth, ‘The Feminist Proposal is Really Ridiculous: The Struggle for Women's Right to Enter the Legal Profession in Mandatory Palestine’ (2009) 25 Mechkarei Mishpat 237 (in Hebrew).

26 Under the Employment Service Law, 1959, employers are prohibited from discriminating on the basis of sex (as well as on other grounds such as race, nationality and sexual orientation) in respect of hiring workers, their salaries, working conditions, promotion and so forth. See also the Male and Female Workers Equal Pay Law, 1996.

27 Barak-Erez, Daphne, ‘The Feminist Battle for Citizenship: Between Combat Duties and Conscientious Objection’ (2007) 13 Cardozo Journal of Law and Gender 531.

28 Izraeli, Dafna N, ‘Gendering Military Service in the Israel Defense Forces’ (1999) 14 Theory and Criticism 85 (in Hebrew); Yishai, Yael, Between the Flag and the Banner: Women in Israeli Politics (SUNY Press 1997); Halperin-Kaddari, Ruth, Women in Israel: A State of Their Own (Pennsylvania University Press 2004) 153; Rimalt, Noya, ‘Equality with a Vengeance: Female Conscientious Objectors in Pursuit of a Voice and Substantive Gender Equality’ (2007) 16 Columbia Journal of Gender and Law 97.

29 Izraeli, ibid; Rimalt, ibid.

30 See, eg, s 5 of the Women's Equal Rights Law, 1951, which provides that the law does not affect matrimonial issues. For a critical discussion of the impact of Jewish rabbinical law on the endeavours of the founders to establish gender equality see, eg, Triger, Zvi H, ‘The Gendered Racial Formation: Foreign Men, “Our” Women and the Law’ (2009) 30 Women's Rights Law Reporter 479, 496ff.

31 Raday, Frances, ‘Religion, Multiculturalism and Equality: The Israeli Case’ (1996) 25 Israel Yearbook on Human Rights 193; Halperin-Kaddari, Ruth, ‘Women, Religion and Multiculturalism in Israel’ (2001) 5 UCLA Journal of International Law and Foreign Affairs 339.

32 HCJ 143/62 Funk-Schlesinger v Minister of Interior 1963 PD 17 225; Rubinstein, Amnon and Medina, Barak, The Constitutional Law of Israel (6th edn, Shoken 2005) 385 (in Hebrew).

33 HCJ 202/57 Sides v Great Rabbinical Court 1958 PD 12 1528; HCJ 10/59 Levi v District Rabbinical Court 1959 PD 13 1182.

34 HCJ 453/94 Israel Women's Network v Government of Israel 1994 PD 48(5) 501; HCJ 2671/98 Israel Women's Network v Minister of Labour 1998 PD 52(3) 630; HCJ 2754/02 Israel Women's Network v Government of Israel (unpublished, 13 November 2002).

35 HCJ 104/87 Nevo v National Labour Court 1990 PD 44(4) 749.

36 HCJ 953/87 Poraz v Mayor of Tel Aviv-Jaffa 1988 PD 42(2) 309; HCJ 153/87 Shakdiel v Minister of Religious Services 1988 PD 42(2) 221.

37 HCJ 1000/92 Bavli v Great Rabbinical Court 1994 PD 48(2) 221. In this manner, the Supreme Court has ruled that a woman's right to an equal share in property (following divorce) is based upon the woman's right to equality in marital life, and upon the fact that there are ‘non-economic’ ways in which a woman can contribute to marital life (such as childcare) that are no less important than ‘economic’ ways (such as labour). Therefore, the woman's right to an equal share in property does not depend on a matrimonial agreement (whether express or implied) or the ‘economic’ contribution that she makes to the marriage (CA 1880/95 Drahm v Drahm 1997 PD 50(4) 865). The Supreme Court has also ruled that the above mentioned rationales render the woman's right to an equal share in property applicable not only to property acquired during the marriage, but (in some cases) also to property acquired before the marriage by the husband (CA 4151/99 Bril v Bril 2001 PD 55(4) 709).

38 The decision in HCJ 3358/95 Hoffman v Director General of the Prime Minister's Office 2000 PD 54(2) 345 was somewhat qualified in a later decision of the Court in this case (FHCJ 4128/00 Director General of the Prime Minister's Office v Hoffman 2003 PD 57(3) 289) in which the Court decided to designate a location adjacent to the Wall for women's prayers.

39 HCJ 4541/94 Miller v Minister of Defence 1995 PD 49(4) 94.

40 Nevo v National Labour Court (n 35); Israel Women's Network v Government of Israel (n 34); Israel Women's Network v Minister of Labour (n 34); Lauren Gelfond Feldinger, ‘Skirting History’, The Jerusalem Post, 18 September 2008, http://www.jpost.com/Home/Article.aspx?id=114834; Rimalt, Noya, ‘Women in the Sphere of Masculinity: The Double-Edged Sword of Women's Integration in the Military’ (2007) 14 Duke Journal of Gender Law and Policy 1097; Dotan (n 10). The decision also brought about the amendment of the law regarding women's service in the IDF: see Women's Equal Rights Law (Amendment No 2), 2000. This amendment later became s 16(a) of the Defense Service Law (Consolidated Version, 1986; Defence Service Law (Amendment No 11) (Women in Combat Units), 2000, s 6(d). For a feminist critique on the implications of the legal reforms in this field, see Rimalt (n 28) 117–18; Sasson-Levy, Orna, ‘Feminism and Military Gender Practices: Israeli Women Soldiers in “Masculine” Roles’ (2003) 73 Sociological Inquiry 440.

41 CrimA 224/63 Ben-Ami v Attorney General 1964 PD 18(3) 225; Yonay, Yuval, ‘The Law Regarding Homosexuality – Between History and Sociology’ (1998) 4 Mishpat Umimshal 531 (in Hebrew); Kama (n 10); Amit Kama, ‘Parading Pridefully into the Mainstream: Gay and Lesbian Immersion in the Civil Core’ in Brian S Turner and Guy Ben-Porat (eds), The Contradictions of Israeli Citizenship: Land, Religion and State (Taylor and Francis 2011) 180. The Attorney General of Israel, in 1953 and 1972, issued instructions not to prosecute for consensual homosexual relationships; therefore, in practice, the criminal prohibition was seldom enforced: Harel, Alon, ‘Overview and Commentary: Bagatz 721/94 El Al v Danilowitz and the Future of Sexual Minority Rights in Israel’ (1995) 1 National Journal of Sexual Orientation Law 302, 303; Rubinstein and Medina (n 32) 1015).

42 Kama (n 10).

43 HCJ 721/94 El Al v Danilovitz 1994 PD 48(5) 749.

44 HCJ 5398/96 Steiner v Minister of Defense (unpublished, 27 February 1997); Mor, Tzili, ‘Law as a Tool for a Sexual Revolution: Israel's Prevention of Sexual Harassment Law 1988’ (2001) 7 Michigan Journal of Gender and Law 291; Ben David (n 9).

45 Ben David (n 9).

46 HCJ 3045/05 Ben-Ari v Director of Civil Registry 2006 PD 61(3) 537.

47 The bundle of rights granted by this ruling to same-sex partners is roughly equivalent to the rights provided by a ‘registered partnership’: Wintemute, Robert, ‘The Massachusetts Same-Sex Marriage Case: Could Decisions from Canada, Europe and South Africa Help the SJC?’ (2003–04) 38 New England Law Review 505. On the surface, being registered as a married couple with the Official Registry does not grant the couple any material rights since it functions merely as a statistical tool (Funk-Schlesinger v Minister of Interior (n 32)). Nevertheless, as a practical matter, registration with the Official Registry means a great deal, especially with regard to day-to-day contact with the bureaucracy. For example, in order for a same-sex couple to obtain a mortgage (which is subsidised by the government) as a married couple, they must present evidence to the bank that they are registered as such (even though their marriage is not recognised under Israeli law: see Arnon Ben-Yair, ‘Marriage in the Version of Barak’, Ha'aretz, 29 May 2007, http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=864446 (in Hebrew).

48 CA 10280/01 Yeros-Hakak v Attorney General 2005 PD 59(5) 64.

49 Yuval Yoaz, ‘AG Okays Wider Adoption Rights for Same-Sex Couples’, Ha'aretz, 10 February 2008, http://www.haaretz.com/print-edition/news/ag-okays-wider-adoption-rights-for-same-sex-couples-1.239054 (in Hebrew); Kama (n 41).

50 Aviad Glickman, ‘Court Precedent: A Child To Be Adopted by His Father's Male Spouse’, Ynet, 16 December 2010, http://www.ynet.co.il/articles/0,7340,L-4000371,00.html (in Hebrew); Dana Weiler-Polak, ‘Adoptions by Same-Sex Couples, Single Parents See Uptick’, Ha'aretz, 19 September 2010, http://www.haaretz.com/print-edition/news/adoptions-by-same-sex-couples-single-parents-see-uptick-1.314661 (in Hebrew).

51 FamC (TA) 47720/06 M and N (unpublished, 20 December 2006).

52 Kama (n 41); see also FamC (TA) 11264-09-12 X v Ministry of Interior (unpublished, 21 November 2012), in which the Court ordered the Ministry of Interior to acknowledge the annulment of the marriage of a gay couple, based on the HCJ ruling in Ben-Ari v Director of Civil Registry (n 46). In another recent decision, a family court ruled that a lesbian woman, who donated her ovum in an artificial insemination procedure with her partner, should be acknowledged as a second mother in a direct manner and not by the adoption procedure (subject to a professional opinion on the child's best interest (FamC (TA) 60320/07 T Z v Attorney General (unpublished, 4 March 2012)). Furthermore, a magistrates court ordered the owners of an events hall to compensate a lesbian couple for their refusal to allow the couple to hold their wedding there, according to the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 2000 (CC (Jer) 5901/09 Ya'acobovich v Yad Ha'shmona Festivities Hall (unpublished, 3 September 2012)).

53 For example, AdminA 343/09 Open House for Pride and Tolerance in Jerusalem v Municipality of Jerusalem (unpublished, 14 September 2010); Dana Weiler-Polak, ‘Same-Sex Couples Entitled to Subsidies for Day Care’, 8 February 2010, Ha'aretz, http://www.haaretz.co.il/hasite/spages/1148348.html (in Hebrew).

54 In 1977 a Women's Party was established in Israel and it participated in the elections; nevertheless, it did not cross the election threshold, and thus did not receive any parliamentary seats: see Ruth Reznik, ‘Patriarchal Society, Chauvinism and Violence against Women’, What About – A Journal for Women Rights, 2001, http://lib.cet.ac.il/pages/item.asp?item=8542 (in Hebrew).

55 The early-childhood educational network of Na'amat operates 280 day-care centres for over 20,000 children from the age of three months to four years: see http://www.naamat.org.il/aboutE.php?cat=102&in=0. WIZO operates multi-purpose day-care centres which are open until the evening in order to provide a solution for children whose parents work long hours: see its wide range of activities at WIZO, ‘Advisory Call Center for Parents of Early Age Children’, http://www.wizo.org/page_14664.

56 Efrat Weiss, ‘Police Arrest Woman Praying at Western Wall’, Ynet, 18 November 2009, http://www.ynetnews.com/articles/0,7340,L-3807090,00.html. Recently, as a result both of political pressure by American Jewish organisations and of several mass prayer sessions by women at the start of the Hebrew month in the Western Wall, Prime Minister Benjamin Netanyahu asked the chairman of the Jewish Agency, Nathan Sharansky, to work on a solution for the situation and present recommendations after the elections: see Kobi Nahshoni, ‘Netanyahu Initiates Lighter Limitations on Women and Reforms in the Western Wall’, Ynet, 27 December 2012, http://www.ynet.co.il/articles/0,7340,L-4325208,00.html (in Hebrew)). On the activities of the Kolech organisation, see its website at http://www.kolech.com/english. Kolech has also filed a class action against Kol Ba'Rama, a radio station that continues to bar women from broadcasting in its programmes, even though the Second Authority for Television and Radio has issued special orders on the matter (see CA (Jer) 23955-08-12 Kolech v Kol Ba'Rama (unpublished, case filed 30 August 2012)).

57 See, eg, Dahan-Kalev, Henriette, ‘Feminism between Mizrahi and Ashkenazi’ in Izraeli, Dafna and others (eds), Sex Gender Politics (Hakkibbutz Hameuchad 1999) 217 (in Hebrew). For further information about the activities of the Achoti organization see its website http://www.achoti.org.il/?page_id=408. cf Krishnan, Jayanth Kumar, ‘Public Interest Litigation in a Comparative Context’ (2001) 20 Buffalo Public Interest Law Journal 19, 49: Krishnan found that 57 per cent of the women's rights groups studied in his research reported that they used demonstrations and protest as part of their tactics; however, Krishnan does not list the groups that he classifies as women's rights groups for this quantitative analysis; nor does he provide clear criteria for such classification. Some groups referred to in his study as women's rights groups focus on issues that seem peripheral to the principal claim of the women's rights movement (eg New Family (Krishnan, ibid 62) – an organisation that focuses on the rights of alternative forms of family partnership, including common law marriage, gay families and so on). It is unclear from these findings how intensive or frequent was the groups' use of demonstrations, and the study does not list or even cite actual cases of demonstrations or picketing conducted by women's groups. The study also found that women's rights groups are among the ‘heavy’ users of litigation (Krishnan, ibid 72).

58 This state of affairs seemed to be changing, at least to some extent, towards the end of the research period. Thus there was one notable case of mass demonstrations against the Attorney General's decision in July 2007 not to pursue criminal charges of rape against the President of the State, Moshe Katzav. The President was accused in the press of being involved in various cases of sexual harassment and other sexual offences against women employed by him but, following a long investigation, the Attorney General announced that he agreed to a plea bargain without a sentence of imprisonment. The decision set off a huge public outcry, which included a massive demonstration in Tel Aviv. It should be noted, however, that these demonstrations seem to reflect a general sense of resentment by the Israeli public against political corruption rather than a reaction to orchestrated efforts by a women's organisation to mobilise for fundamental social change. Ultimately, Katzav decided to reject the plea bargain option. He was indicted on charges of rape and other sex offences, and convicted in December 2010. Similarly, in February 2010 the press reported a demonstration in the Arab city of Nazareth in protest against domestic violence: Jacky Huri, ‘The War of the Druze Sheikh against Murder of Arab Women’, Ha'aretz, 7 February 2010, http://www.haaretz.co.il/hasite/spages/1147976.html (in Hebrew). There were a number of political demonstrations and considerable picketing in 2011 against practices of gender separation in public transportation and in other public venues espoused in ultra-orthodox communities in Jerusalem and elsewhere: Dan Izenberg and Jonah Mandel, ‘Court Scraps “Mehadrin” Buses’, The Jerusalem Post, 6 January 2011, http://www.jpost.com/NationalNews/Article.aspx?id=202456. The issue also reached the High Court: see HCJ 746/07 Ragen v Ministry of Transportation (unpublished, 5 January 2011). In addition, over the past decade, women's grassroots activity has proliferated throughout the web, thus serving as a vehicle for women's empowerment: see, eg, the Facebook group ‘One of One’ (http://www.facebook.com/oneofone1) which collects and publishes women's personal stories of sexual harassment and sexual assault in order to let women share their experiences and find support from other members. In addition, the group aims to send the message that this reality is common in women's lives.

59 These organisations include the Israeli Gay, Lesbian, Bisexual and Transgender Association (commonly known as the Aguda), Lesbian Feminist Community (KLAF), Israel Gay Youth (IGY), Jerusalem Open House for Pride and Tolerance, Havruta and HOD (both founded to assist Jewish religious LGTBs), Hoshen: Education and Information Center of the LGTB Community in Israel; Bella Doeget (Worrying Bella), the Israel AIDS Task Force's education outreach arm for the LGBT community and various other organizations: see http://www.gogay.co.il/index/Sites.asp?id=1 (in Hebrew). The relationships between these organisations are typified by collaboration and work division, each dealing with different aspects of gay interests and activities. The fact that different LGBT organisations collaborate with each other does not mean that the various organizations do not compete over prestige, resources etc: see, eg, Niv Sonis, ‘An Interest Outing’, GoGay, 20 January 2014, http://gogay.co.il/item.php?id=17629; Revital Gal, ‘Small Community, Big Discrimination: Gay, Lesbians and What's in Between’, Mako, 8 March 2012, http://www.mako.co.il/pride-sex-and-love/identity/Article-ad9e1077122f531006.htm; Tal Laor, ‘Stop the Wars of Gay Jews’, NRG, 13 August 2009, http://www.nrg.co.il/online/1/ART1/929/669.html.

60 The relative number of gays and lesbians within the general population is an issue that sparks debates among researchers. The numbers that are cited in this respect range from 10 per cent to 3–4 per cent: Rubenstein, William B, ‘Do Gay Rights Laws Matter? An Empirical Assessment’ (2001) 75 Southern California Law Review 65, 83–87 and fns. For the purpose of this study, it is sufficient to say that the relative size of the gay and lesbian population within the general population is certainly far smaller than the relative size of the female population. Therefore, presumably, to the extent that the size of the social group has an influence on its relative power within the democratic system, women are expected to have far more influence on the political system than gay persons.

61 Political Council for Gay Rights in Israel (n 10) 68.

62 ibid 57; Kama (n 10). For a description of lobbying activities by the gay movement in the Knesset see, eg, Amir Shoan, ‘Everyone Has Gone but I'm not Despaired’, Tel Aviv Magazine, 14 July 2006 (copy with the author) (in Hebrew). In 2002, a report that reviewed the Knesset's activity in the field of gay rights over the previous years was issued by the Political Council for Gays Rights in Israel: see Shabi Gatenio, Amit Sha'anan and Yoki Lavi (eds), ‘Pink Report: The FIRST Report to the Knesset on LGBT Rights in Israel 2000–2001’, Political Council for Gay Rights in Israel, 2002 (in Hebrew).

63 Ari Gilhar, ‘Parade without Sponsors: Due to Haredi Boycott?’, Channel 7, 25 June 2007, http://www.inn.co.il/News/News.aspx/164038; Kama (n 10); Kama (n 41). Gay parades in Jerusalem in recent years have generated a wave of resentment within religious circles in the city and brought about pressures against commercial sponsors of the gay parades: see Shlomit Zur, ‘First Time: Tempo Boycott the Gay Parade’, 2007 (copy with the author); Idan Yosef, ‘Tempo Boycott the Gay Parade’, News 1, 7 May 2007, http://www.news1.co.il/Archive/001-D-130319-00.html. Attempts to ban the parade through the courts have failed: see HCJ 8988/06 Meshi-Zahav v Commander of Jerusalem Region (unpublished, 27 December 2006); HCJ 5277/07 Marzel v Commander of Jerusalem Region (unpublished, 20 June 2007); Kama (n 41).

64 Gatenio, Sha'anan and Lavi (n 62); Kama (n 10).

65 Political Council for Gay Rights in Israel (n 10); Kama (n 10).

66 Political Council for Gay Rights in Israel (n 10) 17 and 104 (chapters relating to health and prisoners).

67 ibid 99 (chapter relating to the police).

68 ibid.

69 ibid 74 and 46.

70 ibid 17, 6, 57, 86, 104 and 51; Aron Heller, ‘Tel Aviv Emerges as Top Gay Tourist Destination’, Huffington Post, 24 January 2012, http://www.huffingtonpost.com/2012/01/24/tel-aviv-gay-travel-destinations_n_1227888.html.

71 One notable exception in this regard is Na'amat (a women's organisation affiliated with Israel's major labour union), which has legal offices providing some assistance to women in employment cases, and sometimes in family matters in lower courts).

72 Political Council for Gay Rights in Israel (n 10) 25.

73 For a discussion of success rates of women in litigation in Israeli higher courts see Dotan (n 10).

74 ACRI has a very close relationship with gays' organisations and collaborates with them on many levels: see Political Council for Gay Rights in Israel (n 10) 110 (Ch 15 dedicated to the activities of ACRI for gay rights). See also the New Israel Fund News (NIF), http://www.nif.org/media-center/nif-in-the-news. For the exceptional record of ACRI in higher court litigation in Israel see Dotan and Hofnung (n 24).

75 Krauss, Agate (ed), Women in Israel: Compendium of Information and Data – 2004 (Israel Women's Network 2004).

76 Kama (n 10) 21.

77 The choice of the research period 1970–2010 was based on a number of considerations. First, this is a significant time span that presumably enables systematic comparison between the achievements of the two groups. Secondly, it is extremely difficult to gather data (let alone on a wide comparative basis, as done here) on any earlier period. These difficulties are particularly significant with regard to the LGBT movement, which started (in Israel) in the early 1970s. One possible objection to the choice of the research period is that this period misses some important developments with regard to women's rights and women's social status in Israel which took place during the 1950s and 1960s – ie prior to the research period. It should be noted, however, that even assuming that the ‘golden age’ of women's rights in Israel occurred before 1970, at the end of that period (ie in 1970) the relative social status of Israeli women was still low relative to most Western countries, and remained largely unchanged throughout the research period (see below). Moreover, to the extent that some changes in the social status of women did occur during the 1950s and 1960s, this has very little to do with court litigation, since the phenomenon of using litigation as a tool for social change was hardly known in Israel during that period (see Section 2.1 above). Lastly, there is hardly a doubt that women's organisations sought to improve their social status and fought for equality after the 1970s and throughout the research period. Therefore, there is a substantial need to study their relative success during that period, as I do here.

78 See the discussion above in text at n 9.

79 Miller v Minister of Defense (n 39). See also text after n 39.

80 Seidman, Guy I and Nun, Eyal A, ‘Women, the Military and the Court: Israel at 2001’ (2001) 11 Southern California Review of Law and Women's Studies 91, 125–27; 20 Years of the Israel Women's Network (Israel Women's Network 2004) 10 (in Hebrew); Rimalt (n 40). Still, arguably, there were other factors that contributed to the change of policy regarding women's service in the IDF at the time the decision was rendered. In particular, the incoming Chief of Staff at that time, General Shaul Mofaz, was known for his strong support for gender equality in the IDF: see ‘Israeli Manpower Directorate’, Aka (2005), http://www.aka.idf.il/yohalan/main/main.asp?catID=56988.

81 Orit Kamir, ‘Rethinking Sexual Harassment in Terms of Human Dignity-Respect’ (1998) 29 Mishpatim 317, 361 (in Hebrew); Orit Kamir, ‘The Israeli Law for the Prevention of Sexual Harassment: Where Are We After a Decade?’ (2008) 9 Law and Business 9 (in Hebrew); Rimalt, Noya, ‘On Law, Feminism and Social Change: The Sexual Harassment Prevention Law as a Case Study’ in Barak-Erez, Daphne (ed), Gender, Law and Feminism (2007) 95 (in Hebrew); Kamir, Orit, ‘Dignity, Respect and Equality in Israel's Sexual Harassment Law’ in Mackinnon, Catharine A and Siegal, Reva B (eds), Directions in Sexual Harassment Law (Yale University Press 2004) 561.

82 See text after n 30 above. Governmental corporations are controlled by the government and regulated by the Governmental Corporation Law, 1975. The statute includes a specific provision (s 18a) providing for gender equality on the boards of governmental corporations.

83 Israel Women's Network v Government of Israel (n 34).

84 The rise in the percentage of women in managerial jobs in general during the same period has been far less steep – from 15 per cent in 1986 to 26 per cent in 2000: Krauss (n 75) 91. See also data on the representation of women on the boards of private companies (ibid 102).

85 ibid 144–45.

86 Seidman and Nun (n 80) 93.

87 Hausmann, Ricardo, Tyson, Laura D and Zahidi, Saadia, The Global Gender Gap Report (World Economic Forum 2010) 9, http://www3.weforum.org/docs/WEF_GenderGap_Report_2010.pdf; Kenig, Ofer, Women in Key Positions: Israel in Comparative Perspective (Israel Democracy Institute 2010), http://www.idi.org.il/BreakingNews/Pages/289.aspx. During the Knesset term, two more women were substituted for retired MKs. In the recent elections of 2013, 27 women were elected (ie 22.5 per cent of all seats). See also Orly Almagor-Lotan and Hodaya Kain, ‘Women in Politics', Research and Information Center of the Knesset, 2010, http://www.knesset.gov.il/mmm/data/pdf/m02446.pdf (in Hebrew).

88 Israel Democracy Institute, ‘Women Quota: Is Reverse Discrimination Good for Women?', 2002, http://www.idi.org.il/Parliament/2002/Pages/2002_35/A_35/Parliament_Issue_35_A.aspx (in Hebrew).

89 Krauss (n 75) 70.

90 Ben-Israel, Ruth, Equal Opportunities and the Prohibition of Discrimination in Employment (The Open University 1998) 751 (in Hebrew).

91 According to a recent official report, the gap between men and women is around 25 per cent and very little change has occurred during the last decade: see Ministry of Finance, ‘The State Salary Commissioner Report', 2009, 48, http://hsgs.mof.gov.il/Documents/2009-3.pdf (in Hebrew).

92 Admittedly, the choices made in these indexes can be regarded as somewhat arbitrary, at least in the sense that one could suggest indexes that would be based on somewhat different indicators, or challenge the relative weight attributed to each indicator within the overall rating of each country. I use these indicators for two main reasons: (i) to the best of my knowledge, the UN indicators are the only ones which contain comprehensive information that includes references to a sufficiently large number of countries during the research period; and (ii) it is exactly because any choice of the relevant indicators for such an analysis must to some extent be arbitrary, I prefer to use accepted indicators already in use for that purpose rather than creating special indexes for the current study.

93 See United Nations Development Programme (UNDP), ‘Human Development Reports (1990–2010)’, http://hdr.undp.org/en/humandev. While the UN has published its HDI Indicator for every year since 1990, the Gender-related Development Index varies with respect to the indicators it measures. I refer to those years in which data appears that refers to income levels of men and women.

94 UNDP, ‘Human Development Report 1998', http://hdr.undp.org/en/media/hdr_1998_en_indicators1.pdf; UNDP, ‘Human Development Report 2000', http://hdr.undp.org/en/media/HDR_2000_EN.pdf; UNDP, ‘Human Development Report 2004‘, http://hdr.undp.org/en/media/hdr04_complete.pdf; UNDP, ‘Human Development Report 2008', http://hdr.undp.org/en/media/HDR_20072008_EN_Indicator_tables.pdf. Note that in the GDI for 2010, Israel is ranked 15th, but this ranking does not include data regarding the relative income of men and women: UNDP, ‘Human Development Report 2007/2008’ (1990–2010) 98, http://hdr.undp.org/en/media/HDR_20072008_EN_Indicator_tables.pdf. Israel's ranking in a recent report by the World Global Gender Gap Report is even lower than it is in the GDI Reports (49 out of 134 countries for economic participation and opportunity): see Hausmann, Tyson and Zahidi (n 87) 10.

95 Kama (n 10).

96 See text accompanying n 47 above.

97 Meirav Gerenstein, ‘The Impact of Supreme Court Decisions on the Recognition of Gay Rights in Israel’ (1999) (unpublished student manuscript, Hebrew University) (on file with author); Kama (n 10); Kama (n 41).

98 Political Council for Gay Rights in Israel (n 10) 6.

99 Kama (n 10).

100 ibid.

101 Political Council for Gay Rights in Israel (n 10) 86; Gross, Aeyal, ‘Sexuality, Masculinity, Military and Citizenship: The Service of Homosexuals and Lesbians in the IDF from a Comparative Perspective’ in Barak-Erez, Daphne (ed), Military, Society and Law (Ramot 2002) 95; Kama (n 41).

102 Aeyal Gross, ‘Israeli GLBT Politics between Queerness and Homonationalism’, Bully Bloggers, 3 July 2010, http://bullybloggers.wordpress.com/2010/07/03/israeli-glbt-politics-between-queerness-and-homonationalism/; Franke, Katherine, ‘Dating the State: The Moral Hazards of Winning Gay Rights’ (2012) 44 Columbia Human Rights Law Review 1.

103 ibid.

104 The proliferation of gay activities in Israel over the last decade was accompanied by some cases of extreme violence against gay persons and institutions. In 2005 an ultra-orthodox man stabbed and wounded three participants in the Jerusalem Gay Pride parade: Greg Myre, ‘Israel: Three Stabbed at Jerusalem Gay Parade', New York Times, 1 July 2005, A9. In 2009 a masked man opened fire on the home of the National LGBT Association of Israel, killing two young people and wounding several others: Franke (n 102) 1.

105 For this purpose, we used the GDI ranking for 2005.

106 See n 92.

107 For somewhat similar (and obvious) reasons we could not use the same indicators for women and LGBT status – ie there was little point in comparing women's right to marry or gays' estimated income as indicators for gay status. We focused on indicators related to the main issues at stake for the social struggle of each group.

108 One nationwide poll regarding gay issues found that only 38 per cent of the Israeli public think that homosexuals ‘should be accepted’ while 50 per cent think they should be ‘rejected’. This puts Israel behind most Western democracies, including the US (49 per cent to 41 per cent respectively): see Pew Global Attitudes Project, ‘World Publics Welcome Global Trade – But Not Immigration: 47-Nation Pew Global Attitudes Survey’, PEW Research Center, 2007, 35, http://pewglobal.org/files/pdf/258.pdf. Other public opinion polls, however, suggest that the Israeli public is supportive of gay service in the military (77 per cent), gay rights for civil union (61 per cent) and for adopting children (60 per cent): see Dialogue Poll, Ha'aretz, 8 August 2009. The Israeli public is also less receptive to the idea of full equality for women in leadership positions than are other Western Europeans (32 per cent agree with the statement that ‘[m]en are better in leadership positions than women’, compared with 27 per cent in the US, 20 per cent in the UK and Germany and 15 per cent in Norway): see Arian, Asher and others, ‘Israeli Democracy Indicator: Democratic Values in Israel’ (2010) 2 Israel Democracy Institute 75, http://www.idi.org.il/media/486465/madad%202010%20sofi.pdf (in Hebrew).

109 Scheingold (n 5); Rosenberg 2008 (n 5).

110 McCann and Silverstein (n 3).

111 Epp (n 8).

112 McCann and Silverstein (n 3); Epp (n 8).

113 Bickel, Alexander M, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Bobbs-Merrill 1962); Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980).

114 United States v Carolene Prods 304 US 144 (1938); Ely, ibid 162.

I owe thanks to Yuval Feldman for his valuable comments on the draft and to Shira Gartenberg for her excellent work as a research assistant; .

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Israel Law Review
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