Hadassah-Brandeis Institute

Gender Discrimination in the Air: Is it Legal?

Oct. 8, 2014

By Lisa Fishbayn Joffe

In a recent article in Tablet Magazine, Elana Sztokman describes a disturbing experience flying on the Israeli airline, El-Al. Her plane was delayed because the ultra-Orthodox man assigned to the seat next to her, refused to take his seat. He felt obligated to find someone to trade with him so that he would not have to sit next to a strange woman for the 11-hour flight to Israel.

Sztokman describes her feelings of humiliation as men negotiated with each other to solve the problem presented by her embodied presence. The issue ignited discussion from other women treated this way on El Al flights and by those who simply feel that flights should not be delayed for this reason. Sharon Shapiro, a Chicago writer, circulated a petition signed by more than 3,600 people, demanding that El Al "stop the bullying, intimidation and discrimination against women on their flights."

What have the courts said about this? This issue of sex segregated seating on public transport has recently been addressed very clearly by the Supreme Court of Israel. In response to a civil lawsuit brought by women who had been harassed and assaulted when they refused to move to the back of buses, into makeshift "women's sections," the Israeli Supreme Court ruled in 2011 that coerced sex segregation in seating on public (and privately owned) buses in Israel was discrimination against women and ordered it stopped. Some ultra-Orthodox people might feel uncomfortable having to ride with or sit with people of the opposite sex, and with people who did not share their point of view about gender, but they would have to find a way to cope. They have no right to force others to comply and the state is not permitted to accommodate them by violating the rights of others. Now this issue has re-emerged in the context of air travel.

Opposition to coed seating on public transportation is also a novel and stringent interpretation of Jewish norms. In the past, men who felt unable to sit next to women without succumbing to lustful thoughts might be said to be "weak-minded." Rav Moshe Feinstein delivered the leading 20th-century opinion on the permissibility of mixed seating on public transportation when asked whether an Orthodox Jewish man could sit next to a female stranger on a crowded New York subway train. He responded that there was no prohibition on incidental contact with women or sitting next to them when there is no other seat available and when this contact was not undertaken with any sort of sexual intent.

If a man thinks that traveling under these conditions might incite sexual thoughts, he should try to distract himself and think about words of Torah. If he is so filled with lustful thoughts that even this incidental proximity to women might cause him to be sexually aroused, then he ought not travel. His pathology is not another person's problem, though Feinstein lamented the fact that anyone should be so weak-minded. Such obsessiveness is the result of idleness, Feinstein said, and men like this need to be more involved in Torah study and work and "not be that way."

Commentators differ on how this decision should be applied in the context of the modern state of Israel. Some emphasize Rav Feinstein's point that while Jewish law expresses concern that men may be distracted by the sexual appeal of women, and mandates that both men and women dress and behave modestly, it is clearly men’s responsibility to control their appetites — "to not be that way." Others, however, argue that Feinstein's ruling ought not to apply in the state of Israel, where Jews hold the instrumentalities of the state in their hands and can recreate public life to be more fully compliant with Torah law.

Halacha may not require it, but, according to Shlomo Rosenstein, Agudath Yisrael coordinator of public transportation, "If it possible to sanctify ourselves, why not?”"Indeed, Rabbi Yehuda Warburg, writing in the Jewish academic journal, Tradition, has argued that Feinstein's ruling should be confined to the diaspora. Orthodox Jews outside of Israel have not applied these norms to public transportation because "in modern society such a practice is unrealistic." But in Israel, it might be possible. The fact that Jews who understand themselves to be Orthodox have not sought to practice such separation in the past or elsewhere does not preclude accommodation of this novel but legitimate conception of the requirements of Jewish law, according to Warburg.

Setting aside the fact that the El Al flight in question originated in the U.S., where anti-discrimination laws and Federal Aviation Rules also make this practice unrealistic, the Supreme Court of Israel issued a clear refutation of this argument in the bus case. Orthodox passengers who see women as a source of temptation to men are entitled to their opinion, but not to impose it on others, or ask that women who do not share their views be compelled to see themselves that way.

Perhaps this man on the airplane felt he knew himself well enough that he could not sit next to a woman for an 11-hour flight without having lustful thoughts. Perhaps he thought the only way to deal with this temptation was to create physical distance between him and women whom he viewed as sources of temptation. However, this sort of heightened caution about contact with women has the perverse effect of sexualizing what would otherwise be read as neutral encounters. It is the anxiety about the temptations that hypersexualizes these interactions between men and women. Dwelling on how to avoid all women because they constitute a temptation turns men like this passenger into Rav Feinstein's third category of the disappointing fellow who needs to develop more internal self discipline, to focus on more noble thoughts and works, and "not be that way."

Lisa JoffeLisa Fishbayn Joffe is director of the HBI Project on Gender, Culture, Religion and Law. She is the co-editor with Sylvia Neil of "Gender, Culture, Religion and Law: Theorizing Conflicts Between Women's Rights and Cultural Traditions."