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20 S. Afr. J. on Hum. Rts. 64 (2004)
Benign Segregation - A Case Study of the Practice of Gender Separation in Buses in the Ultra-Orthodox Community in Israel

handle is hein.journals/soafjhr20 and id is 74 raw text is: BENIGN SEGREGATION? A CASE STUDY OF THE PRACTICE OF GENDER SEPARATION IN BUSES IN THE ULTRA-ORTHODOX COMMUNITY IN ISRAEL ALON HAREL* ABSTRACT The purpose of this article is to examine, from the perspective of moral and political theory, the practice of separate seating for men and women in buses operating in ultra- Orthodox neighborhoods in Israel. its approach however differs from mtuch of the discourse concerning multiculturalism. Instead of asking whether preserving cultural practices is a value that overrides the concerns for gender equality. this article suggests that the very characterisation of a practice of gender separation as discriminatory is cult ure-sensitive and cannot be detached from the political and moral convictions of the community that sustains the practice. This discussion raises questions that are analogous to the ones facing the South Afiican jurist who wishes to reconcile respect for African cultural norms and practices with the provisions of equality and dignity entrenched in the South African Constitution. I INTRODUCTION A sign that says *men only' looks very different on a bathroom door than on a courthouse door' In 2000 the statute prohibiting discriminatory provision of goods and services was enacted in Israel.2 This law continues the existing trend in Israeli law to expand the principle of equality beyond public law and to apply it to relations governed by private law (in particular contract law).3 Section 1 of this law (specifying the goals of the law) states that 'Ithis law Walter E Mexer Professor of Law Hebrew University. Jerusalem. I wish to thank Yaacov Benshemesh, Therese Bjorkholm. Stephen Ellmann, David Enoch, Michael Otsuka, Chanan Reichman. Gila Stopler and Yuval Wolman for their important comments. An earlier version of this paper was presented at the 2003 Critical Legal Conference, Rand Afrikaans University and at Mishkenot Sha'ananim Center in a conference on 'Religions at War and Religions at Peace'. 1 am gratefil to the participants in these conferences for their contributions. The article was written at the Center for Ethics and the Professions at lHarvard University. I am grateful to the Center for its support. I Churne i, Clcbur e Living Ceoer, Inc 473 US 468-69 (1985) (Marshall J, concurring in part and dissenting in part). 2 SH 2001 p 54. 3 The Chief Justice of the Israeli Supreme Court (Justice Barak) has persistently argued that the rights entrenched in the basic laws bind not only the state but also private individuals. See, tor example. A Barak -Protected Human Rights and Private Law' in I Zainir (ed) Klinmg/ln/fte Book on Public Las (1993) 163.

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