Any serious discussion of the present situation of women in Israel is bound to start with, and pay tribute to, the 2012 emergence of the “new” phenomenon of “women’s exclusion.” Israeli media were shocked to report on women’s exclusion from public buses, sidewalks, checkout lines in supermarkets, and faces on billboards; on the banning of girls from dancing in public gatherings and female soldiers from singing in official ceremonies; and on and on. The Israeli public was similarly outraged by these unprecedented expressions of women’s exclusion. It took a little while to sink in, but as people realized this was more than just a passing trend, an impressive body of human rights and women’s rights organizations signed up for the fight. It may be difficult to admit, but currently, even as the media have moved on to other stories, the phenomenon of women’s exclusion is here to stay.
Upon deeper reflection, what is surprising here is the public’s apparently honest surprise and outcry. It is surprising because the truth is that women have always been barred from equal and full participation within Israeli public life and the public sphere.
The Myth of Israeli Women’s Equality
Much scholarship during the past couple of decades has dealt with debunking the myth of women’s equality in pre-State Israel and during the nation’s early years. By now it is well established that those old photos, so deeply engrained in our collective memories, of the women settlers (halutzot) wearing short working pants, holding spades, standing side by side with the men, only served to enhance the myth of an equality that never really existed here. The equality myth of the early years has turned into a contemporary manifestation in the form of the “no-problem problem”—namely, the ongoing denial of the reality of women’s inferior status and of gender discrimination. Only when based on such a dismissive perception can women’s exclusion be understood as new and unprecedented.
The truth is, of course, that women’s exclusion fits well into the context of growing rates of gender-based violence against women, of the ongoing feminization of poverty, of undiminished gender pay gaps and a highly gender-segregated labor market, of the shamefully low presence of women in public office, and, above all, of discriminatory religious marriage and divorce laws. The “no-problem” culture leads people to attribute little importance to the lack of civil marriage and divorce in Israel, for example, and to refrain from linking that lack to such clear expressions of gender discrimination as women’s economic inferiority and their meager representation in public life.
Part of what enables this is a collective oblivion about women’s struggle for equality in the pre-State era. The story of the Jewish Women’s Equal Rights Association of Palestine—the local suffragist movement—and its relentless struggle against the objections of the Orthodox for the right to vote has never been part of the official historiography taught in schools. Thus, not many know of the pressures directed at the association’s leaders, who were caught in the dilemma typical of women in many national liberation struggles, between commitment to independence and commitment to their feminist cause, as eloquently phrased by political scientist Yael Yishai: “between the flag and the banner. 1 ” It may well be that Israel’s sense of insecurity and fragile existence continues to feed into this feminist-existential dilemma, causing us to question where our allegiance rests.
In light of this, I would like to suggest that our founding mothers were much more daring and uncompromising than we are now. Of course, things are different today, and we are equal citizens in this beloved yet painful state. Or are we? From my position as a member in the United Nations Committee on the Implementation of the Convention on Elimination of Discrimination Against Women (CEDAW), I can unequivocally state that women in Israel are the only women in the Western world who are still exposed to formal discrimination in the form of discriminatory laws, in the most personal and critical sphere of private life—namely, marriage and divorce. They are also the only women in the Western world who are completely barred from fulfilling official judicial roles in national religious courts.
Perhaps, then, we are not really part of the Western world. The distressing truth is that in the area of marriage and divorce laws (a fundamental area of women’s rights), the State of Israel fits rather well into the geographic sphere in which it is located. It is not easy to face this truth; it is easier to ignore it and address other issues. It is important to stress that, although women in Israel appear to have gained their formal equality almost a hundred years ago with the successful culmination of their battle for the ballot, they are, in fact, still exposed to formal discrimination and thus cannot be said to be fully equal citizens, either formally or substantively.
As such, things may have not changed that much after all. Our foremothers argued against the exclusive control of religious law and religious courts over marriage and divorce; we do too. They accompanied anguished and distressed women to divorce proceedings in rabbinical courts; we do too. They argued for advancing solutions to the agunah problem; we do too. They campaigned to raise the age of marriage, as do we, although, admittedly, the need then was to set a minimum age, whereas today it is to raise it from 17 to 18. So what is the difference?
One of the differences is that ninety years ago, suffrage was the major issue around which all activists could unite, and they won. The unsuccessful struggles over the personal status laws were secondary to the main cause. Today these issues are—or should be—our main cause, and we are nowhere near winning. Another difference is that the global mobilization then is nowhere to be found today. Why is there no “women’s rebellion” over this cause? Have women internalized or acquiesced to the discriminatory situation? Is it part of a more general compliance with the lack of civil marriages in Israel, so that civil marriage is practically a non-issue?
As with so many other complex matters, it is a combination of factors and is, indeed, related to the larger (non-)issue of civil marriage. It seems that women, including women activists, share the general reluctance to enter this minefield for fear of tearing the nation apart, thus buying into the axiom that civil marriage would destroy the nation’s unity. This pattern mirrors the historic development of Israel’s feminist movement, whereby most feminists gradually left the formal political sphere and moved to service-providing and social roles, whereas those who remained generally became involved in left-wing politics and the peace movement. As political scientist Yaacov Yadgar and I have observed:
Israel’s continuing violent conflict with its Arab neighbors has overshadowed most other civil and social issues, rendering them “secondary” to the primary concern of securing the safe existence of the state. … [T]his perception has pushed such pressing issues as gender equality and women’s rights aside, marking them “less important” than the national conflict, thus allowing for the perpetuation of discriminatory, sometimes rather repressive treatment of women in Israel. The most blatant expression of this is the turning of the struggle for civil marriage and divorce into a non-issue.2
As if this reluctance to deal with the lack of civil marriage and divorce in Israel were not enough, in an empiric research study I conducted with sociologist Bryna Bogoch, we concluded that Israeli divorce practitioners have internalized women’s legal inferiority to such an extent that it is not even recognized. Thus, the reason that women are not regarded as having less power than men is that the basic disadvantage of women in the law is so taken for granted that it is no longer seen as actually affecting the negotiations leading to divorce. We suggested: “Gender inequalities are naturalized in the routine practice of divorce … and the issue of women’s dependence on men for divorce is itself divorced from professional discourse of power and equality.”3
The Trap of “Formal Equality”
This observation confirms my analysis of the civil family court system, in which I also concluded that many family judges fell into the trap of what legal theory and feminist critics calls “formal equality”— namely, a simplistic “as if” notion of treating everyone equally, as if there were no basic differences between the parties. Formal equality not only ignores initial differences between the parties, but also overlooks the underlying context and disregards any disparaging effects it may have on the subject matter. As such, the civil jurists tend to see the narrow issues at hand before them—those of parents and children, support, marital property, and financial matters—and completely ignore the broader contexts of divorce and Jewish divorce law, which underlie these matters. The courts feel the responsibility to implement equality in the case at hand, but they disregard the background rules of divorce. It is as if those rules were conveniently invisible, so that the civil courts do not see themselves responsible for them, nor are they responsible for eliminating their resultant discrimination or distortion. It is possible that the civil judiciary has, in a way, accepted and internalized the religious discriminatory rules of divorce to such an extent that they have become an axiomatic threshold on which all other rules are built.
Thus we are faced with a troubling development in Israeli family law—namely, the possibility of revoking the existing “tender years” presumption in custody disputes, which provides for maternal preference when physical custody is at issue (while legal custody is always equally shared between both parents). Like their counterparts all over industrialized countries, local men’s organizations have seized on the only area of marital law in which women have some advantage, and in the name of gender equality, they are calling to abolish this law and adopt a default rule of shared physical custody, ignoring the overall discriminatory framework within which this law operates, as well as the perspective of the best interests of the child. It is disturbing to see how the hollow rhetoric of formal equality catches the public ear and the legislative eye. Furthermore, while all this goes on, the rabbinical courts continue in their gendered interpretation of Jewish law, using such halakhically dubious tools as retroactive invalidation of the get and allowing men to condition the get on such terms as will enhance the power of the rabbinical courts (e.g., by demanding that disputes originally filed in civil family court be transferred to rabbinical court jurisdiction or by requiring that disputes already settled in family court be reopened).
These developments go mostly unnoticed in the media and in the public eye, which—if at all concerned with women’s rights and gender equality—are satisfied to express their shock and dismay at the intolerable phenomenon of women’s exclusion. It is time that they noticed the ongoing exclusion and outright discrimination against women in the most vital, intimate sphere of any woman’s life, which eventually affects all other areas of women’s lives, private and public alike.