High Court of Justice 3227/20 Mika Kliger v. Minister of Defense - part 10

Dafna Barak-Erez

Judge

Judge Ruth Ronen:

My friends Vice President v.  Solberg elaborated on the history of the petitions before us, and ultimately reached the conclusion that at the present stage, in light of the significant way that the issue of service has come Batza women"30 in combat roles, as well as the military's obligation to continue to fulfill its legal obligation to serve women and men equally - The petitions have exhausted themselves.

The main point of my colleague's words is also accepted by me, as I will detail below.  However, although that I agree with most of the reasons in his opinion, like my fellow judge, IV' Lightning-Erez, These reasons lead, in my opinion, to the conclusion that The time has come to turn the order nisi given in the petitions into an absolute order, as will be detailed below.

Background to the discussion

1. Military service is a civil obligation that applies, according to the Defense Service Law, to every civilian over the age of 18 (Section 13 of the Defense Service Law, 5746-1986; High Court of Justice 1532/00 De Brammaker v. Minister of Defense, IsrSC 55(2) 297, 302 (2000); High Court of Justice 739/15 Khalifa v.  Minister of Defense, para.  2 [Nevo] (October 15, 2015)).  In addition to being a legal obligation, enlistment in the IDF is also perceived by the Israeli public as a legal right - the right to obligation to serve.  As my colleague noted in one of the cases, "Service in the IDF is primarily a right and less an obligation" (High Court of Justice 1877/14 The Movement for Quality Government in Israel v.  Knesset, paragraph 44 of the opinion of Justice   Sohlberg [Nevo] (September 12, 2017)).  This approach has earned it a break in the statute book and in the case law of this court, which recognized that bearing the burden of service in the IDF - in addition to being an obligation, is also a right; and alongside being a right with social and moral validity, it is also a right with legal validity.

Against the background of this starting point, the approach has taken root that the army must adopt egalitarian standards in enlistment in the IDF and in providing an equal opportunity to be selected for service in various positions (High Court of Justice 4541/94 Miller v.  Minister of Defense, IsrSC 49(4) 94 (1995) (Hereinafter: High Court of Justice Alice Miller)‏‏; High Court of Justice 6427/02 The Movement for Quality Government in Israel v.  The Knesset, P.D.  619(1) paragraph 38 of the judgment of the Vice-President (ret.) M.  Cheshin ‏(‏2006‏)‏‏; High Court of Justice 1844/13 Tamari v.  Minister of Defense ‏[Nevo] (12.11.2013‏); אהרן Barak Law-יסוד: Human Dignity and Liberty and the law-יסוד: Freedom of Occupation 2163, 2176-2174 (Volume 4, 2023)).

2. From the very beginning, the IDF established - in an unusual way on an international scale at the time - the obligation to enlist both men and women. At the same time, as my colleague described, in the beginning, the possibilities that were open to women to serve in the IDF were limited - and as a rule, it was not possible to assign women to combat roles.  However, over the years, there have been changes in the legal situation with regard to the nature of the positions in which women can be placed.

A key milestone in this regard is High Court of Justice Alice Miller, in which it was determined that the army's policy that sweepingly prevents women from being selected for a pilot course and joining its ranks - It is unacceptable discrimination that violates the constitutional right to equality.  As my colleague described in detail, in this judgment the starting point was established according to which as a rule "The IDF cannot be heard claiming that women are disqualified for any position because they are women." (ibid., at p.  117).  It was held there that Closing the gates of a pilot course to women violates their dignity, humiliates them and sends a message of inferiority towards them; With this in mind, it is not possible to rely solely on budgetary or planning arguments to justify the violation of women's right to equality.  It was also determined there, Because a female soldier is disqualified from fulfilling this or that position, but because she is a woman It is allowed only when the candidate's gender constitutes a difference relevant to the performance of the position - One that cannot be neutralized in order to achieve equal opportunities.

3. The legislature chose to follow the path paved by the court - and enacted Amendment No. 11 toDefense Service Law - who attached to this law the Section 16A which establishes the basic principle according to which "Every female veteran has the same right as a male veteran to play any role in military service".  Subsequently, Amendment No.  2 to the Women's Equal Rights Law was also established, 5711-1951 (Hereinafter: Women's Equal Rights Law) which added In the section 6IV to enact the provision according to which "Every woman who is a candidate for service in the security forces, or who serves in them, has the equal right to fulfill any position, or to be assigned to any position".  These two amendments clearly and unequivocally anchored the rule that a woman's right to perform duties in military service is, as a rule, equal to a man's.  The exception to the principle of equal right to be used in any position, which appears in these two sections, applies when we are dealing with cases in which it is not possible to grant an equal right due to the nature or nature of the position (see also paragraph 39 of my colleague's opinion).
4. The rule regarding the duty of equality between men and women in the selection and placement of positions in the IDF is intended to fulfill a number of purposes. First and foremost, the basis of this rule in the principle of equality, which is "the lifeblood of our entire constitutional regime" (High Court of Justice 98/69 Bergman v.  Minister of Finance, IsrSC 23(1) 693, 698 (1969)) - is a derivative of the constitutional right to equality and the duty of equality in administrative law.  The approach according to which equality between the sexes is a fundamental principle in Israeli law is intertwined with the rulings of this court from its inception (High Court of Justice 202/57 Sidis v.  The Great Rabbinical Court, Jerusalem, IsrSC 12 1528 (1958); High Court of Justice 953/87 Poraz v.  Mayor of Tel Aviv-Jaffa, IsrSC 42(2) 309, 333-334 (1988); High Court of Justice 2671/98 The Women's Caucus in Israel v.  Minister of Labor and Welfare, IsrSC 52(3) 630 (1998) (hereinafter: the Women's Caucus case)).  As may be recalled, even before the statutory anchors in the Defense Service Law and the Women's Equal Rights Law came into being, this court established the IDF's duty to equal opportunities for women in the case of Alice Miller, as a derivative of the right to equality.

In light of these words, it should be clarified that the normative basis of the The military's obligation to ensure equality between men and women in assignment to positions is not limited to the aforementioned provisions of the law - However, the roots of this obligation are also rooted, first and foremost, in the constitutional right to equality.  The importance of the provisions of the Defense Service Law and the Women's Equal Rights Law lies in the fact that they provide us with clear, certain, and unequivocal guidance regarding the duties of the military with regard to equality between men and women - and in the exceptional cases in which such an injury may be proportionate and justified.  At the same time, it cannot be said that they are the only and exclusive normative source of this fundamental obligation - which, as stated, preceded their enactment, the constitutional right to equality enshrined in the law יסוד: Human Dignity and Liberty.  As will be clarified below, this may be important in the context of the hearing regarding the breach of this obligation.

5. Another purpose of equality between men and women in military positions is the efficient and full utilization of the IDF's manpower, in a way that enables the IDF to meet all its missions. The respondents also emphasize that the policy adopted by the army to expand the integration of women in various military positions is based, inter alia, on "the IDF's desire to make the best use of all the resources at its disposal, in order to strengthen its readiness and meet its mission - ensuring the security of the state and protecting its citizens and residents." This is in view of the tremendous contribution of women to carrying out the army's missions today, and to the potential contribution of women fighters in the future.

It is reasonable to assume that equal opportunities are provided in the selection process for positions in the IDF, and that candidates are examined according to their qualifications only.  - Ensures that the most qualified candidates are assigned to each position.  Moreover, on the quantitative level, the fact that women today serve about one-fifth of the IDF's combat force - This indicates that opening up the full range of positions to women is essential for building up the army's manpower.  This point assumes all the more importance in light of the shortage of combat manpower that currently prevails in the army, since the service of women in combat roles significantly expands the list of issues in the burden of security and defense, which has increased in weight in recent years.

6. Moreover, the duty of equality imposed on the army is also important from a social perspective. Thus, the existence of a "division of labor" between men and women in the army, which limits women's service in key positions and military leadership, is likely to have negative externalities on the status of women in social and public life.  The respondents' affidavit indicates that the Chief of Staff gave weight to "the moral and public significance of providing women with the opportunity to be assigned to sought-after and high-quality units, which are at the forefront of operational activity in the IDF." In academia, the view has long been expressed that given the symbolic and public importance of the IDF as a significant arena of public action, the gender distinctions that exist in the frameworkand influence and reinforce the inequality between men and women even in civilian life (Dafna Izraeli, "Gender in Military Service in the IDF," Theory and Criticism 14, 85 (1999); Orna Sasson-Levy, "Theoretical Introduction: From Gendered Organization to Inequality Regimes: An Analytical Look at Gender and Military in Research in Israel," Gender at the Base: Women and Men in Military Service 20 (2018)).

This effect may also apply directly, but also indirectly when the positions are closed to women - and in particular combat roles that are at the forefront of military activity - It conveys a message of inferiority and perpetuates negative social constructs in relation to women.  In the exact words of the judge D.  Dorner In a High Court of Justice case Alice Miller: "Closing a profession or position to a person because of his gender, race, or the like, sends a message that the group to which he belongs is inferior, and thus creates a low image for the girls of the group and for its daughters.  Thus, a vicious circle is formed that perpetuates discrimination.  The low image, which is based on biological or racial difference, causes discrimination, and the discrimination confirms the degrading stereotypes of the discriminated inferiority." (ibid., at p.  134).

7. There is no dispute about the aforementioned normative framework. The parties agree that the IDF has a legal obligation to grant equal rights to men and women to serve in any position, except in exceptional cases in which the distinction is found to stem from the nature or nature of the position.  Given all of the above, it could be assumed that all IDF positions would be opened on a website for women who wish to be assigned to them, with the exception of those few exceptions that the army would point out and clarify why, due to the nature or nature of the position, women could not serve in them.  In practice, however, this is not the case.  Despite the enactment of Amendment No.  11 to the Defense Service Law and Amendment No.  2 to the Women's Equal Rights Law more than half a century ago, all IDF professions have not yet been opened to women, and many positions remain - especially combat roles - that women cannot be assigned to.

Against the background of this state of affairs, the petitions in question were filed almost six years ago - They claim that the IDF practices institutionalized and illegal discrimination against women when assigned to combat roles.  The army did not disagree on its commitment to providing equal opportunities for men and women to be assigned to all the appropriate positions - However, he insisted that a gradual process should be carried out based on the opening of experiences designed to gain experience and learn lessons, in order to formulate an assessment of the operational and professional possibility of integrating women into additional combat roles.

8. As my colleague described at length, since the petitions were filed - and in particular since an order nisi was granted - there have been real changes in the situation on the ground. Among other things, experiential tracks for female combat service have been opened in the Yahalam Unit, Unit 669 and Sayeret Matkal; A format has also been formulated in which women candidates for security service will be able to be selected as part of a 'patrol day'.  According to the Respondents' Notice of Update, the various experiences are at different stages.  The experience in the Yahalam unit has already produced several dozen female fighters, some of whom even serve as officers in the unit.  On the other hand, although the possibility of being assigned to Sayeret Matkal and Unit 669 was opened, not a single female combatant successfully completed the training track.

In addition, an experiment was opened to establish a team of female fighters in the field of infantry mobility - that it was decided to stop her due to the soldiers' failure to meet the requirements of physical fitness; And in 2026, another experiment is expected to open for the integration of female fighters into the infantry professions.  Beyond that, it was decided to open an experience in training female fighters for roles in the Maneuvering Armored Corps at the end of 2024 - An experiment that was postponed for various reasons, initially to November 2025, and later to November 2026.

9. Another significant and relevant change that has occurred since the petitions were filed occurred with the outbreak of the war. On October 7, 2023, when thousands of terrorists infiltrated from the Gaza Strip into the borders of the State of Israel - Many female fighters were the ones who stood at the gate.  Many of them did not wait for an order, stormed and waged long hours of intense fighting, while repelling hundreds of terrorists professionally and courageously.  Since that Shabbat, women have continued to take an integral part in the defense and combat efforts concentrated in the various sectors - and serve in various and varied positions, including as observers, fighters in the Air Force, in the Border Protection and Combat Reconnaissance Corps, as doctors and paramedics.  Women fighters took part in the ground maneuver shoulder to shoulder alongside fighting men, and risked their lives across the border as well.  Some of them paid the highest price of all, and fell in battles and operational activity in the various sectors; And many others were injured.  Female pilots, navigators and aircrew - Take part inAttacks air strikes, including attacks on Iran.  All of these and many others have made a valuable contribution to the security of the state with responsibility, dedication and heroism - And for that, they deserve appreciation and appreciation, the intensity of which is hard to overstate.

The fierce war that Israel is waging on various fronts has forced many women to take part in the mission of defense - At the same time, she gave them the opportunity to take on many roles.  Due to the time of emergency, these changes sometimes occurred not by virtue of a principled policy decision, but also by necessity of the constraints of the campaign and the battlefield.  The respondents noted that research and learning of women's participation in the war effort is still underway; But anyway - This reality, with its consequences, is also a significant fact that cannot be ignored when considering the parties' arguments in the framework of the present petitions.