In a ruling on June 27, the Israeli High Court of Justice overturned the decision of a Sharia court prohibiting the appointment of a woman arbitrator in divorce proceedings, sending the case back to the Sharia court and ordering it to allow the appointment of women arbitrators.
Kayan’s involvement in this case began over two years ago when a woman filing for divorce requested the appointment of a woman to argue her case before the Sharia court, but her request was denied on the basis that a woman could not arbitrate in court. After an appellate court upheld the Sharia court’s ruling, the woman filed a complaint in the High Court, and Kayan was asked to join the case as an amicus curiae to use its feminist legal expertise to assist the court in deciding the matter.
This unprecedented decision represents an important challenge to the institutionalized, gender-based discrimination within Israel’s religious court system. Prior to this case, all arbitrators in Sharia courts – in which arbitration is an integral component of divorce proceedings, both as a means for reconciliation or peaceful separation and as a basis for the determination of fault, which has legal and financial implications for the guilty party – were men. Before the High Court, Kayan argued that the prevention of woman arbitrators in the Sharia court undermines women’s right to dignity, and that there is no relevant difference between men and women in the role of arbitrators. Women arbitrators would be able to more effectively serve women parties in court, and therefore, there is a need for women arbitration to enforce women’s right to expression – the appointment of men to arbitrate the case of women in front of the court contributes to silencing their voices.
In its recent ruling, the High Court agreed with Kayan’s claim that the refusal to appoint a woman arbitrator in the Sharia court violates the principle of equality, since the Sharia courts in Israel are bound to apply both the Women’s Equal Rights Law and the Basic Law on Human Dignity and Liberty. The High Court determined that the exceptions in sections 5 and 7(c) of the Women’s Equal Rights Law, which address the appointment of positions in religious courts and judicial intervention in religious courts – specifically the laws regarding marriage and divorce, violate the Basic Law on Human Dignity and Liberty. In its decision, the High Court also affirmed the importance of enforcing women’s right to choose women as arbitrators.
Attorney Shirin Batshon, coordinator of Kayan’s Legal Department and partner in the case, welcomed the decision, noting that, “The decision is a major step in reducing discrimination between men and women in the religious courts in general and in the Sharia courts in particular. It carries a very important message regarding the ability of women to serve in influential public positions and represents another step toward gender equality, which is what Kayan works to achieve.”