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No gender-segregated swimming at nature reserves, Israel’s deputy AG says

The Israel Nature and Parks Authority has no right to allow separate-sex swimming at its nature reserves, according to a legal opinion drafted recently by Deputy Attorney General Dina Zilber.

The authority had instituted separate swimming hours at the Enot Tsukim reserve on the northern Dead Sea in what it described as a pilot project. But it was frozen due to the Justice Ministry’s opposition.

“A government agency may not provide gender-segregated services,” wrote Zilber, who ended her term last week. “This view is based on the Supreme Court’s ruling that ‘separate but equal is inherently unequal.’”

“Restricting access on the basis of gender undermines equality – especially when done by a government agency,” she added. She also cited a more recent High Court of Justice ruling requiring the Kiryat Arba local council to allow mixed swimming hours at its municipal pool.

The nature authority announced the pilot, which provided for separate hours for men and women’s swimming at two pools in Enot Tsukim, back in September. Another pilot had been conducted previously at the Gan Hashlosha national park, but there, separate-sex swimming was allowed only after the pool’s regular operating hours.

The authority had originally planned to extend separate-sex swimming to other sites. But after Zilber, who has spearheaded the Justice Ministry’s fight against the exclusion of women, said this would require “a more thorough discussion” of the legal issues involved, the authority froze the plan.

At a hearing about six weeks ago in the Knesset Committee on the Status of Women and General Equality, Shaul Goldstein, the authority’s director, said the pilot was “proportionate, and we think we should resume it,” following “decades of discrimination and exclusion” against the Orthodox community. Many Orthodox Jews believe that mixed-gender swimming violates religious law, and Goldstein, who formerly headed the Gush Etzion Regional Council in the West Bank, said the pilot was instituted in response to requests from the Orthodox community.

“There’s no real basis to the claim that the laws and regulations governing the nature authority’s work constitute possible sources of authority for a move involving gender segregation,” she added. “The Nature Reserves Law contains no explicit authorization for designating places or times for swimming exclusively by men or women, or for undermining the right to equality.”

Such explicit authorization is necessary, Zilber wrote, because the norm is that any public venue “needs to be open to everyone on an equal basis,” and “restricting access on the basis of gender” violates that principle. Consequently, absent such authorization, the question of whether the policy is proportionate or not is irrelevant, she added.

“Israeli law is suspicious of arrangements for separation based on suspicious group characteristics like race or sex,” she wrote, adding that “for years, the status quo has been that public areas of national parks and nature reserves are open to the entire Israeli public, in all its diversity, during every day and hour that they operate.”

Consequently, she concluded, “As long as explicit legislation doesn’t say otherwise, gender separation at nature authority sites is impossible.”

The nature authority said it has received the opinion and is studying it. “The question of whether the existing authorizations are sufficient or not is currently under legal scrutiny that hasn’t yet been completed, and a decision hasn’t yet been made by the attorney general,” it added.

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