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Between Voice and Silencing / Orly Erez-Lachovsky

June 29, 2016

The ultra-orthodox radio station Kol Barama began broadcasting in 2009. According to the permit it received from the Second Authority for Television and Radio, a committee of rabbis accompanies the station's broadcasting. That rabbinic committee decided that a woman's voice would not be broadcast by the station at all – no singing and no speaking. It should be noted that while there is a halakhic (religious law) prohibition on female singing, the prohibition to broadcast female speech is a rigorousness not at all necessary from a halakhic point of view. The radio station's broadcasts were indeed 100% male. All the broadcasters and interviewees were men. In those programs that were open to the audience, women were asked to send a fax. Live press conferences were cut so as not to broadcast the voices of female government ministers.

In August 2012 the Israel Religious Action Center, together with Adv. Assaf Fink, filed a request for the approval of a class action against the Kol Barama radio station, in the name of Kolech (the Religious Women's Forum). The lawsuit was based on the Law Prohibiting Discrimination in Products, Services and Entry into Places of Entertainment and Public Places (2000), since the service provided to women differed from the service provided to men. The request was accompanied by a survey conducted among the radio station's female audience. That survey revealed that approximately a third of the female listeners felt humiliated due to the prohibition of broadcasting female voices by the station. The group filing the suit was all the women who listened to the station, or would have liked to listen but avoided it due to the exclusion of women.

Even before the lawsuit was filed, in 2011, the Second Authority started a process whereby the station was required to assign several hours per week where it would be permitted to broadcast women. The original demand was for one weekly hour, then four weekly hours, and later eight weekly hours. In January 2014 it was ruled that women might be heard at all hours, except one hour of broadcasting a day, but only in theory. In effect, female voices were not heard on those hours of music broadcasts, neither were they heard during the many hours dedicated to lessons taught by rabbis. During the rest of the time, the percentage of female voices broadcast was very small compared with the many men who broadcasted, were interviewed or called in. In September 2014, District Court Justice Gila Canfy Steinitz decided to authorize the request as a class action and rejected the radio station's claims that since women could listen to the station the same as men, they were not discriminated. The District Court determined that the fact that female listeners could not hear themselves reflected in a major venue of media communications of the ultra-orthodox public constitutes a significant breach of equality and freedom of speech. The radio station appealed to the Supreme Court. The court rejected the appeal in December 2015. The Supreme Court accepted the broad interpretation of the District Court to the Law Prohibiting Discrimination, and ruled that in this case the female listeners were discriminated based on their gender. The Court determined that in this case it was not a religious edict mandating the exclusion of women, but noted that when there is a significant breach of basic rights, a religious or cultural practice may be disqualified even if it is based on a religious edict and is at the core of culture or religion. The Court also accepted the ruling of the District Court that Kolech was the appropriate forum to represent the ultra-orthodox women affected by the radio station's exclusion of women, in the lack of an equivalent ultra-orthodox organization and considering the inability of the ultra-orthodox women to file legal proceedings against women's exclusion. The lawsuit was approved regarding the time when women's voices were not broadcast at all by the radio station (2009-2011).  The proceeding is now going into the next stage, managing class action itself, which will focus mainly on determining the damage and the appropriate compensation to the group of women affected.

Adv. Orly Erez-Likhovski heads the legal department at the Israel Religious Action Center.