(-) "Why Experiments Won't Be Conducted to Integrate Women into Elite and Special Units Conducting Screening Procedures, In addition to and in parallel with the experiences in the 669 And Yahel"m" - As mentioned, after the order nisi was granted, it was decided to open an experiment in Sayeret Matkal as well. Moreover, combat roles for women were also opened in Unit 504. If so, also to this head of the order nisi - A response will be given.
- As for the third head of the order nisi - "Why should women not be allowed to enlist in the maneuvering armored formation, [...] Alternatively, why shouldn't women be integrated, as part of an experiment, into the maneuvering armored formation, already and without waiting for the completion of the experiments in units 669 and Yahalam - things are a little more complicated. On the one hand, the IDF has officially announced the opening of a trial in the maneuver's armor, as stated in an order nisi. On the other hand, the experiment, which was scheduled to begin in November 2025, was not opened, and was postponed to November 2026. Despite the postponement of the date, and the certain difficulty that derives from it, in terms of compliance with the provisions of the Law, I am of the opinion that in view of all the considerations on the agenda, there is no room for an operative order on our part. I'll explain.
- As mentioned above, the reason for the postponement of the date was mainly due to the challenges of the war and the command attention given to its management; the lack of resources required to open the training on time (in terms of manpower, infrastructure, etc.); and the need to make the most of the lessons learned from the unsuccessful experience in infantry mobility, and to implement the lessons already learned, first and foremost the appropriate screening procedures that will improve the chances of meeting the required physical fitness and reducing injuries. This, along with an additional reason, of real weight, was submitted in a confidential notice. Counsel for the Petitioners argued, on the other hand, that the reasons relating to the lack of command attention, resources, etc., are not convincing, given that the training for men in maneuvering armored vehicles is conducted frequently, with all the required resources allocated to them; and that "organizational, budgetary or manpower constraints" cannot justify the said postponement of the date (another argument that was raised is that there is no need for experience at all; I will refer to this argument below, in paragraphs 73-82).
- I am unable to accept the arguments of the Petitioners' counsel in this context. First, with regard to the argument that it is not possible to reconcile the Respondents' claims regarding a lack of resources and command attention, given that the training for men is indeed carried out frequently - as emerged from the Respondents' statement, given that the experiment, as its name implies, is not known whether it will succeed (as can also be learned from the experience in mobility infantry); and taking into account the urgent need of the Armored Corps for fighters, the needs of the army are obligatory, Because the experience in the training of female fighters will be carried out in addition to the existing training, not in their place. "Bari and perhaps, bari is preferable" (Babylonian Talmud, Ketubot 12:2). If this is the case, it is clear that in order to open the experiment, which is supposed to be carried out separately, additional resources are required (according to the IDF's professionals, many resources) to those allocated for training that is already taking place. Thus, contrary to the argument of counsel for the petitioners, according to which this is "blatant gender discrimination disguised in terms of coercion", I am of the opinion that the opening of the experiment does indeed entail real challenges, particularly against the background of the circumstances of the war; that there is no basis for the opinion that these challenges are merely a cover for other extraneous considerations; and that the IDF's reliance on the challenges stated in its decision to postpone the date of the experiment does not establish grounds for our intervention.
- Further, with regard to the argument that "organizational, budgetary or manpower constraints" cannot be relied upon to justify the postponement of the opening of the experiment, I am of the opinion that it is important to distinguish between considerations such as this in order to decide the very existence of the experiment, and consideration of them in order to determine the date of the opening of the experiment. While relying on these considerations in order to make a decision of the first type may indeed give rise to a real difficulty (in particular in view of the determinations in the Miller case; see above, at paragraphs 43-47), it is self-evident that with regard to the question of the manner in which the experiment was carried out, including determining the optimal and realistic date for its commencement, these are relevant considerations that can be taken into account (see, for example, and compare: High Court of Justice 6198/23 The Movement for Quality Government v. Minister of Defense, paragraph 53 [Nevo] (June 25, 2024); In fact, one wonders if it is not an obligation to take them into account, where we are talking about the allocation of resources in times of war).
- Moreover, as noted, a confidential notice was submitted regarding this issue, in which the respondents detailed and discussed security considerations, which could significantly cloud the ability to open the experiment on the scheduled date. The aforesaid does not stand alone, but joins a host of relevant circumstances that stand in the background of the matter, including the long and difficult war, and the objective limitations and constraints it imposes, inter alia in terms of resources and manpower; and the fundamental commitment expressed by the respondents to the opening of the experiment, even if not on the date originally planned (a commitment that was expressed in real expression in the army's actions, including all the other experiences on the agenda). To this, it should be added that we are dealing with a question relating to interference in the professional judgment of the Chief of Staff in a security-lateral issue, during a period of war, when the matter was seriously considered by him, based on the positions of the IDF professionals. Needless to say, intervention in such a case is reserved for extreme and exceptional circumstances (see, for example, among many, and compare: High Court of Justice 3194/10 Tzuriano v. Minister of Defense, para. 3 [Nevo] (March 23, 2011)).
- To be precise: for the avoidance of doubt, and in order for the matter to be understood in its proper context, the aforesaid does not give the IDF a "green light" to revoke its legal obligation, or to diminish the importance inherent in the opening of the experiment. However, in view of the totality of the circumstances, as detailed above, and the fact that such an experiment is indeed to be opened - at the foreseeable date, as early as the current year - I am of the opinion that there is no justification for granting an order that would require its implementation to be carried out earlier (and in particular that it is an advance of a few months at most). Moreover, in view of the security considerations at hand, and the objective limitations that have been detailed, including the classified material that was presented, I doubt whether such an order will indeed have any real operational significance with regard to the IDF's ability to comply with it.
- Finally, and perhaps this is the main point regarding all 3 heads of the order nisi, once the IDF accepts its legal obligations and acts consistently to implement them, to a large extent this is enough. Thus, even if the process has not yet come to an end, and we have not yet reached "rest and inheritance." As noted in the rulings of this Court but most recently, in an expanded panel:
"The fact that we are far from reaching the 'Promised Land' does not necessarily mean that an operative order is now required on our part. [...] In these circumstances, in which the Authority does not dispute its legal obligation, and acts with due diligence and diligence to fulfill this duty - and it is clear that it is presumed that the military elements will continue to do so tirelessly - at this time there is no justification for us to issue an operative order" (High Court of Justice 5819/24, para. 40 [Nevo]).
- In view of all of the above, with an emphasis on the change that has taken place in the IDF's policy, and the fact that it is acting consistently, with considerable resources, in order to fulfill its legal obligation; taking into account the response given to the order nisi; and given the broad discretion given to the Chief of Staff, as to determining the manner in which the IDF must act to fulfill the obligations imposed on it (in this case, the legal obligation to allow equal opportunities for men and women in service), Taking into account the needs of the army and security , I am of the opinion that although there is still a way to go, at the present time, there is no longer room to leave the petitions pending, and there is no justification for granting an operative order on our part.
Additional Notes
- Before the conclusion of the hearing, I saw fit to address several arguments raised by the parties throughout the proceeding. During the course of the litigation, the Petitioners raised many arguments regarding the factual basis on which the IDF relied for its decisions. I cannot accept these arguments . As stated by the respondents, the IDF established a professional team that carried out the most in-depth and serious work, and created a very comprehensive factual infrastructure (while sometimes decisions were also made in favor of the integration of women, which were contrary to the team's recommendations). Moreover, since then, at least one other significant staff work has been carried out in the IDF, which has enriched and refined the infrastructure that serves as the basis for the policy that has been determined. In addition, there is an ongoing and continuous process of drawing lessons from the experiences, which continues to sharpen the factual foundation, and accordingly also allows for the improvement of decision-making. I therefore did not find it appropriate to accept the Petitioners' arguments in this context.
- Subsequently, many arguments were also directed at the physiological model formulated by the professional team - both against the model on its own merits, and against its definition as a threshold condition, which is claimed to serve as an almost insurmountable barrier to the possibility of integrating women into certain positions. As to the first argument, which relates to the nature of the model, professional opinions were submitted for our examination in which a critical position was presented towards it - on the one hand, those according to which the model attributes excessive weight to the physiological differences between men and women, and on the other hand, those in whose view it attributes underweight to those differences - but this is not conclusive:
"This court is not authorized, and is not capable, to decide such a professional question among the experts who own the company [...] It is also irrelevant in the eyes of the court what is the opinion of other experts on the question before the authority, which is the only one authorized by law: the court assumes, almost as a matter of course, that there are or may be other opinions that negate the determination of the experts authorized by law, but those other opinions have no legal effect" (High Court of Justice 13/80 'Nun' Reserve Industry in Tax Appeal v. State of Israel - Ministry of Health, IsrSC 34(2) 693, 696 (1980); See also: BRAM 3186/03 State of Israel v. Ein Dor, IsrSC 58(4) 754, 766-767 (2004); High Court of Justice 6274/11 Delek The Israeli Fuel Company in Tax Appeal v. Minister of Finance, para. 11 [Nevo] (November 26, 2012)).