Israel's Courts Wrestle With Sex-Segregated Cultural Events

In Israel, the controversy over gender-segregated events sponsored by municipalities continues. Times of Israel reports that on Sunday a Haifa district court ordered cancellation of a performance by ultra-Orthodox singers Mordechai Ben David and Motty Steinmetz which was to be open only to men. The ruling came in a suit filed by a women's rights group.  The court said in part:

The ultra-Orthodox public in Haifa is entitled to funding for cultural activities like every other public group, but when it comes to public money, there is a need to act in accordance with instructions from the attorney general and the government. It’s important to remember that in regards to the entrance to public places, there is a law that forbids discrimination in products, services and entrances to entertainment venues and public areas, 

Earlier this month, the High Court of Justice banned a similar sex-segregated performance in the city of Afula, but its ruling came too late to actually prevent the performance from going ahead. In response to the Afula case, Israel's Attorney General Avichai Mandelblit provided guidance on when municipal authorities can organize gender-segregated cultural events.  As reported separately by Times of Israel:

Mandelblit published guidelines for authorities saying that gender-segregation could be permissible if the separation were voluntary and desired by the target audience, men and women had equal conditions, and separation did not unduly impact those opposed to it.

“The greater the voluntary component, the less the difficulty in gender segregation, and when it comes to a completely voluntary segregation in which every person chooses his place without being directed, there is no difficulty,” Mandelblit said.

Condo's Sex Segregated Swim Hours Violate Fair Housing Act

In Curto v. A Country Place Condominium Association, (3d Cir., April 22, 2019), the U.S. 3rd Circuit Court of Appeals held that a condominium's mostly sex-segregated swimming hours, adopted in deference to a large number of Orthodox Jewish residents, violates the federal Fair Housing Act. Judge Ambro's opinion focused on the fact that the swim schedule discriminates against women. Weekday evening times were mostly allocated to men.  He concluded:

Women with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles of men and women.

He concluded that defendant had waived any RFRA defense, and even if it had not, the condominium association lacks standing to assert the defense.  Judge Fuentes' concurring opinion added:

I write separately to express my skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women. Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes. We would have no problem concluding, for example, that a pool schedule that allocates two-thirds of its hours to swimming segregated by race and one-third of its hours to “Integrated Swimming” would be intolerable under the FHA. And the FHA’s prohibition on discrimination does not distinguish between discrimination on the basis of sex and discrimination on the basis of race.

ACLU issued a press release announcing the decision.

3rd Circuit Hears Oral Arguments In Fair Housing Act Challenge To Sex-Segregated Pool Hours

On Tuesday, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Curto v. Country Place Condominium Association, Inc. (audio of full oral arguments). As reported by Courthouse News Service, at issue is whether a New Jersey condominium association's sex-segregated swimming pool hours, instituted to accommodate the condos' large Orthodox Jewish population, violate the federal Fair Housing Act.

Israeli Trial Court Permits Sex-Segregated Event In City Square

In Israel today, a Tel Aviv trial court overruled the city's ban on a sex-segregated event scheduled for tomorrow in Tel Aviv's Rabin Square. The city had prohibited the event on the ground that sex segregation in the public sphere violates anti-discrimination requirements. Apparently the substantive legal issue turns on whether the event is religious (and thus has an exemption from anti-discrimination requirements) or is cultural. The court criticized the city for waiting too long to cancel the event.  Sponsored by the Messianist branch of the Chabad movement, the rally called "Messiah in the Square" is to "greet the Lubavitcher Rebbe, King Messiah." (Background.)  According to Haaretz:

The Chabad representative who presented the petition told the court that the planned barrier between men and women in the square would be 50 meters long, but separation would be voluntary and men had the option of sitting with women, as well. The judge said the barrier was for people who identified with the association and that passersby could move freely through the square.

“I don’t understand why the event should not be held the way they [Chabad] want,” [Judge] Vardi said.

Tel Aviv Mayor Ron Huldai responded Sunday to the decision by saying, “We will make sure that in the future there will be no [gender-] separated events in the city.”

Israeli Journalist Threatens To Sue U.S. Embassy Over Sex Separation During Pence Visit To Wall

Haaretz reports that Israeli journalist Tal Schneider is threatening to file a lawsuit against the U.S. Embassy in Israel and the Rabbi of the Western Wall over the separation of women journalists and photographers from male journalists and photographers during Vice President Pence's recent visit to the Western Wall.  As described by Globes, women reporters, relegated behind men, needed to stand on shaky chairs to see Pence at all. The Rabbi of the Western Wall explained:

The photographers were positioned in the lower plaza which is a place of prayer and synagogue, where there is separation of men and women every day and at every type of event. There is nothing new in this and there never was previously any disagreement.

Britain's Court of Appeal Invalidates Sex-Segregated Classes In Co-Ed Faith Schools

In HM Chief Inspector of Education v. Interim Executive Board of Al-Hijrah School, (EWCA, Oct. 13, 2017), the England and Wales Court of Appeal held that a Muslim school which admits both boys and girls, but for religious reasons separates them into sex-segregated classes, violates the Equality Act 2010.  The opinion of Etherton, MR (joined by Beatson, LJ) concluded that the separation operates to discriminate against both boys and girls, saying in part:

An individual girl pupil cannot socialise and intermix with a boy pupil because, and only because, of her sex; and an individual boy pupil cannot socialise and intermix with a girl pupil because, and only because, of his sex. Each is, therefore, treated less favourably than would be the case if their sex was different.

They also point out:

It is common ground that the School is not the only Islamic school which operates such a policy and that a number of Jewish schools with a particular Orthodox ethos and some Christian faith schools have similar practices. 

In a separate opinion, Lady Justice Gloster argued that on the facts of this case, it should be found that the school's practice also has a more detrimental effect on girls than on boys.  She said in part:

One does not need to be an educationalist, a sociologist or a psychiatrist to conclude that a mixed sex school: (i.) which, whether intentionally or otherwise, tolerates an environment where extreme and intolerant contemporary views about the role and physical subservience of women, and the entitlement of men physically to dominate and chastise them, are on display, or available to read, in the school library; (ii.) whose teachers approve the expression by the pupils of gender stereotyped views about the roles of women as homemakers and child minders and the role of men as the breadwinners; (iii.) where girls are always required to wait for an hour during the school day so that the boys can take a break first; and (iv.) where no, or no sufficient, consideration is given to promoting equal  opportunity, is a school where a strict sex segregation policy subjects girls to a greater risk of extreme and intolerant views and is likely to reinforce or create misogynist attitudes amongst the boy pupils towards them.

She also points out that the Equality Act contains an exception for single-sex schools, i.e. schools that only admit students of one sex.

The Court also issued a press summary of its decision.  Schools Week reports on the decision.

British Court Says Sex Segregated Religious Schools OK Under Equality Act

In Interim Executive Board of X School v Chief Inspector of Education, Children's Services And Skills, (EWHC (Admin), Nov. 8. 2016), a British trial court held that sex-segregated classes from the 5th grade on in an Islamic school do not violate the Equality Act 2010. In reaching its conclusion, the court distinguished U.S. Supreme Court case of Brown v. Board of Education. The High Court judge said in part:

The essence of her case is that "making separate but equal provisions for boys and girls (or blacks and whites, or heterosexuals and lesbians and gay men etc.) cannot be divorced from the historic and current societal treatment of the less powerful group." Put another way, but to the same effect, segregation has the tendency to promote social and cultural stereotypes about the role of women in society....

Insofar as segregation on the ground of sex is practised in mixed schools in the UK, it is a practice carried out by a minority of schools with a Jewish, Christian and Islamic ethos, with the full participation of parents.

In short, segregation in mixed schools in this country is not the practice of government; it cannot be envisaged as any reflection of the mores and attitudes of wider society; it is only capable of being seen as a reflection of the mores, attitudes, cultures and practices of the faith groups who have been permitted to do it.

Law & Religion UK has more on the case.