Israel Should Drop Binary View of Gender

The Supreme Court broke ground on gender identity but falls short of providing real equality for all varieties of gender identity.

Aeyal Gross
Aeyal Gross
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Aeyal Gross
Aeyal Gross

“The right to equality for transgender individuals... is a protected constitutional right, by virtue of the Basic Law on Human Dignity and Freedom,” Supreme Court Justice Salim Joubran wrote last week. “The protections of the right to equality do not apply only to those who have completed the sex change process: The social and legal difficulties with which transgender individuals are forced to contend are not dependent on how far along the physiological process of sex change is. The very failure to recognize the individual’s gender identity, as he perceives it, is a violation of the right to equality.”

These statements, which for the first time express the Supreme Court’s recognition of the right to equality on the basis of gender identity, were part of a verdict relating to a transgender prisoner who, according to the court, was born female but felt like a man, and was in the midst of undergoing a sex change.

The Israel Prison Service told the court that the prisoner would be held in solitary confinement to protect him from other inmates -- and given the hardship this entails, the court ordered his sentence reduced from 15 months in prison to 10. The prison service said inmates who have completed a sex change and have a “clear and unequivocal” gender identity would be incarcerated in a regular jail (a men’s prison for a woman who became a man and a woman’s prison for someone who underwent a male-to-female change) but that a prisoner like the one in this case, who is partway through the sex-change process and whose identity isn’t “unequivocal,” would be kept in solitary confinement.

Joubran concurred in the main ruling written by Justice Neal Hendel, but when writing his own opinion went a step further than Hendel by pointing out the problems with this position. There are, admittedly, situations in which it is justified to isolate prisoners whose identities are in flux, for their own protection. But an a priori decision to place all such prisoners in solitary confinement is problematic, because this entails making their prison conditions harsher.

Joubran’s ruling joins an opinion handed down recently by the Equal Employment Opportunities Commission in response to a complaint by a transgender woman (who was born male). The woman was fired from her job as a tutor at the Center for Educational Technology, and she alleged discrimination. The commission concluded that the Equal Employment Opportunities Law, which bans discrimination due to sex or sexual orientation, also protects transgender individuals against discrimination based on their gender identity.

This opinion, together with Joubran’s ruling, are the first signs of judicial recognition of a right to equality for transgender people, who suffer from workplace discrimination and face unreasonable barriers to changing their gender from the health and interior ministries. This recognition must be reflected in openness on the part of these ministries to the way individuals with various identities define their own gender.

In contrast to the positions adopted by Joubran and the commission, the third justice in the Supreme Court case, Noam Sohlberg, made a point of describing the life circumstances of a transgender prisoner as “sad and distressing” and praised the fact that “she” – to use Sohlberg’s word – didn’t presume to be a standard-bearer for the constitutional rights of transgender prisoners. He thereby indirectly expressed reservations about Joubran’s statements on equality, even though all three justices supported the sentence reduction.

Even Hendel’s opinion, despite seeking to ease the harsh prison conditions, was guilty of failing to recognize the prisoner’s gender identity. It also uncritically adopted the prison service’s position on holding such inmates in solitary confinement, as well as its attitude toward identities that aren’t “unequivocal.”

The idea that some identities are “unequivocal” and others aren’t is based on a binary view of gender that assumes everyone must be either 100 percent male or 100 percent female. This worldview is prepared to accept transgender individuals only if they adapt themselves and their body to a particular gender –- including by surgery, as the prison service demanded. Real equality, in the spirit of Joubran’s ruling and that of the Equal Employment Opportunities Commission, will be achieved only when we free ourselves of this oppressive view and allow a variety of genders to flourish.

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