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(c1) For the purposes of this section, the determination of conditions that are not of the nature of the matter is also regarded as discrimination."
- In the circumstances of the case before us, these sections raised the interpretive question of whether the list of grounds for discrimination listed in section 3(a) of the Law is an open or closed list. This question has not yet been explicitly decided in the case law of this Court, despite the fact that it was raised inCivil Appeal 7731/13 Schwartz v. Galina Bar in a Tax Appeal (November 3, 2014) (hereinafter: the Schwartz case).
There it was determined that:
"On the legal level, we are of the opinion that this case does not require a decision as to whether the grounds for discrimination in section 3 of the law are a closed list. It is possible that the legislature did not foresee a situation in which a number of people, some dark-skinned and some light-skinned, come to a certain place that discriminates against dark-skinned people, and therefore not all of them are admitted. It may be argued that such a situation deserves to be included in the grounds for discrimination, since in essence all those who come in the same situation are discriminated against. There may also be other complex and mixed situations, about which we will not elaborate" (see: paragraph 4 of the judgment).
- In the absence of a binding precedent on this question, it is possible to find contradictory positions in the rulings of the trial courts over the years. Applying the interpretation that this is an open list of grounds can be found in the opinion of Justice R. Shapira, Other Municipal Applications (Haifa District) 3724/06 Kibbutz Ramot Menashe v. Mizrahi (January 7, 2008); as well as Other Municipal Motions (Nazareth District) 198/09 Sror v. Resident Music Company in Tax Appeal (November 5, 2009). On the other hand, there is a case law that states that this is a closed list of grounds: see Application for Leave to Appeal (Jerusalem District) 478/08 I.A.T. Investment Management inTax Appeal v. Mor (September 25, 2008); as well as Civil Appeal (Tel Aviv District) 41592-04-12 Schwartz et al. v. Galina Bar in Tax Appeal et al. (October 16, 2013) (as stated above, in the framework of an application for leave to appeal against this judgment, this question was left for consideration in the Schwartz case).
- In the circumstances of the present case, I am of the opinion that the time is ripe to establish a binding and clear rule on this issue. I am of the opinion that the list of grounds listed in section 3(a) of the Prohibition of Discrimination Law is a closed list, and that the language of section 3(c1) does not add to it.
- The language of the law is the "starting line" in the work of interpretation (see: Appeal of Petition/Administrative Claim 2484/23 Clement v. Population and Immigration Authority, paragraph 6 of my judgment and the references cited there (June 16, 2024)). In the case before us, the wording of section 3(c1) of the Law - "the determination of conditions that are not relevant to the matter is also regarded as discrimination" - does not support the possibility that the list of grounds in section 3(a) is an open list. Section 3(c1) says what it says "for the purposes of this section" - that is, with regard to section 3 and the types of prohibited discrimination listed therein. An interpretation according to which section 3(c1) allows the courts to determine additional types of discrimination and to view them as prohibited by law changes the meaning of the words of the section - words of clarification, and nothing more - and stretches them beyond their clear and simple meaning. It is clear, in my opinion, that the entire function of section 3(c1) is to clarify the ways in which discrimination, as defined in section 3(a) of the Law, may find practical expression, and that section 3(c1) is not intended to expand the list of grounds detailed in section 3(a).
- In order to understand the relationship between section 3(a) of the law, as it establishes prohibitions of discrimination, and section 3(c1), which, as stated, only clarifies the ways in which prohibited discrimination is expressed, I will give three examples. The first example: a business prohibits the entry of customers "with beards and sideburns." Section 3(a) does not recognize the cause of discrimination relating to those with beards and sideburns as such. However, in this situation, it can be clearly determined that the prohibition on the entry of customers "with beards and sideburns" is "setting conditions that are not relevant to the matter" as stated in section 3(c1), since it is an attempt to disguise discrimination against ultra-Orthodox men because of their religious beliefs - discrimination that is expressly prohibited in section 3(a). The second example: a dealer who refuses to provide his services to "dress wearers" with the aim of discriminating against women. This business does not discriminate on the basis of dress, since such discrimination is not recognized in section 3(a). However, section 3(c1) allows the court to expose the camouflage and determine that it is discrimination on the basis of sexual orientation that protects section 3(a). The third example: a pastry chef who refuses to bake a wedding cake for an event that defines himself as a relationship alliance between two men - when a cake is a cake; when the pastry chef is not required to decorate it with words that convey one message or another; and when the essence of the event for which the cake is supposed to be baked is not the pastry chef's business. It is clear that in such a case, the requirement that the cake not be used in an event celebrating a relationship between two men is a condition that is not of the nature of the matter, which creates discrimination between the pastry shop's customers due to their sexual orientation - discrimination that is prohibited in section 3(a).
- This interpretive conclusion is strengthened by the comparison of the manner in which sections 3 and 3(c1) of the law were drafted to the wording of other "lists" in the same law itself.
Compare, for example, what is stated in sections 3 and 3(c1) of the law with sections 2 and 3(c) of the same law: