Caselaw

High Court of Justice 3227/20 Mika Kliger v. Minister of Defense - part 13

April 13, 2026
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Thus, the model of experience in itself does not fully realize the obligation of equality, but rather is a "step on the road" towards it.  Experience is always a temporary solution - which is intended to prepare the ground for a permanent situation in which women will be integrated into the framework of the positions in an equal manner (except in exceptional cases, when it is found that this is not possible in view of the nature or nature of the position).

  1. Therefore, from a principled perspective - the respondents must carry out the experiments in a manner that does not violate their purpose - which is to constitute a step towards the full integration of women in all the positions that enable this in terms of their essence and character. In light of this purpose, it is necessary to examine the performance of the experiment model, in order to determine whether it constitutes a proportionate solution at any given time.  Thus, for example, if it had been found that the experiments were carried out in a format that was not appropriate to their purpose - for example, in order to 'perform an obligation' - it is not impossible that the conclusion would have been that the model of experimentation had ceased to be proportionate.

Therefore, I do not believe that since the decision was made to carry out the experiment at any time and in one format or another - The remaining disputes between the parties necessarily relate only to the practical level.  This is because, as stated, the question of the manner in which the experiment was carried out has implications on a substantive level on the question of whether the experiment is indeed a proportionate solution that meets the requirements of the law at the time in light of the totality of the circumstances of the case.  Therefore, the respondents are required to implement the experimental model proposed by them in accordance with the criteria that will ensure this.

  1. Thus, for example, as a rule, we should not accept a situation in which one experience that did not bear fruit would lead to the closing of the doors of a position or unit to women. The failure of a single experiment cannot usually be used as conclusive proof of women's inability to serve in a categorical role.  Respondents should take into account thatas they progress from one experience to another, and as more units are opened to women, their success rates may increase.  It is not impossible that with the accumulation of experience and the lessons learned, the integration processes will be carried out more successfully.  It is also reasonable to assume that with the expansion of the scope of women's enlistment for combat roles, the ranks of those seeking to enlist in combat roles will increase, and with them will also be increasingly suited to the roles.

This is also what experience teaches.  Candidates for security service are not always aware of the possibilities open to them - And the more common and familiar this option becomes, the greater the range of aspirations of candidates for defense service.  In addition, when female candidates for security service currently participate in the designated screening days - It is doubtful whether they reach their full potential compared to men who have been preparing physically and mentally for years for the same screenings.  In this context, I accept the words of my colleague that since we are dealing with a socio-cultural change, the duration of time may have a decisive impact on the educational and image aspect (paragraph 81 of his opinion).  Therefore, a situation in which the existing gaps perpetuate themselves should be avoided.  As the judge said Dorner - The concern about closing the profession to women is due to a "vicious circle" in which the discriminatory policy confirms stereotypes against women - and the low image that results from this constitutes a basis for the continuation of the discrimination (see paragraph 6 above).

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