Taking a Bench to a Glass Ceiling

 Sara Toth Stub
  11th-Jan-2018

JERUSALEM – After nearly a year on the job, Hana Mansour Khatib says she is already seeing the impact she can make as the first female judge in Israel's Islamic, or sharia court system. She says she has long witnessed many female plaintiffs remain quiet and instruct a lawyer or male relative to speak on their behalf in the Islamic courts, which handle marriage, divorce and other personal issues for Muslims here.

"But now, I have noticed that when women see me as the judge, they have more confidence to talk and speak up," says Khatib, adding that she also asks the many relatives who often accompany a divorcing couple to court to leave the room "so the parties can talk honestly. I really encourage them to talk and I want to hear what they have to say, especially in these sensitive matters."

In appointing Khatib, Israel joins a growing number of countries with Islamic courts with female judges. Her appointment also is significant here for the Jews and Christians, who, like Muslims, must marry and divorce through their respective religious authorities because civil marriage does not exist in Israel. Jewish and Christian legal authorities remain all male.

"The appointment of Khatib is wonderful proof that what is perceived as entrenched and immutable can in fact be changed," says Ruth Halperin-Kaddari, a law professor at Bar-Ilan University and vice president of the U.N. Committee on Elimination of all forms of Discrimination against Women.

Khatib's judgeship comes at a time of rapid change for Israel's Arab minority, which makes up about 20 percent of the country's population. Recent years have seen an increase in the number of Arab women going to work and earning academic degrees and certifications. There has been significant government investment, including a five-year 15 billion shekel ($4.3 million) plan, implemented in 2015, to improve education, employment opportunities and other infrastructure in Israel's Arab communities.

The appointment of a female "qadi" – a magistrate or judge on a sharia court – may be even more significant in the long run than those other social changes, says Israeli parliamentarian Esawi Frej, a Muslim and a member of the left-wing Meretz political party. That's because Arab society remains deeply traditional, and what religious leaders say carries a lot of weight, explains Frej, who sat on the parliamentary committee that nominated Khatib.

"There really is no such thing as a secular Muslim," he says. "So for real change in Muslim society, you need the religious establishment to support it. So it is significant that you have religious law saying it's OK for women to be a sharia court judge. That means that gender equality can improve in other parts of life, as well."

Although appointing a female judge is still seen by many as controversial, Islamic law does not ban it, Abd Al-Hakim Samara, Israel's Sharia Court of Appeals president, said at last spring's swearing-in ceremony for Khatib and three new male judges. Khatib was appointed "out of a right, not out of kindness," Samara said at the ceremony.

Empowered Muslim Feminists

In recent years, female sharia judges have been appointed to other courts in the region, including in Morocco, Tunisia, Egypt and the Palestinian Authority. For centuries, judges have been only men due to cultural and social norms, experts say.

The appointment of female qadis in Israel and elsewhere shows how Muslim feminists are finding empowerment through religion, and changing the social and cultural norms that have long held them back, says Engy Abdelkader, a Rutgers University professor of human rights law who has researched the history of female Islamic judges.

Over the years, religious leaders have claimed that women were not allowed to be judges. But a growing Islamic feminist movement and greater religious literacy have led to increasing awareness that Islam's sacred texts do not ban women from judgeships, and that historical documents refer to a few women judges in Islam's early days, Abdelkader says. The growing number of female judges is significant, both socially and in influencing legal outcomes, she adds.

"It signals that Muslim women are capable. They help challenge stereotypical depictions as well as sometimes internalized messages about proper roles for Muslim women. … Greater diversity on the bench contributes to more representative, insightful opinions and outcomes."

Khatib also says that when it comes to emotional issues, such as divorce, she can use her perspective as a woman when presenting court orders.

"When I need to give hard advice, like to tell a divorced woman that she must let her children see their father, I think it feels different hearing it from me than from a man."

For Khatib, born in an Arab village in Israel to parents who worked as farmers after completing only the eighth grade, the journey to this position was not easy. Nor was it guaranteed. After obtaining her law degree in England, Khatib was an attorney practicing with her husband in the northern Israeli city of Tamra, representing clients in both civil and religious court.

Support for her came from seemingly unlikely places. Khatib says it was former Israeli Justice Minister Tzipi Livni, now a member of the center-left Zionist Camp, who first sparked the idea of her becoming a qadi. A parliamentary committee led by the justice minister appoints judges to Israel's various religious courts, but they must also be confirmed by the administrators of the courts. Livni's calls for a female Islamic judge began in 2010 and current Justice Minister Ayelet Shaked continued the push for approving female sharia court judges.

Although a member of the right-wing Jewish Home party, Shaked has over the years voiced concerns for increased gender equality in Israel's Arab society, aspects of which remain very much patriarchal.

"This was a surprise coming from Shaked, but I decided to go for it," Khatib says. She spent the next nearly four years studying at night for the religious judge exam, although it still wasn't clear such an appointment would be allowed. She was one of four women who passed the exam earlier this year, and waited eagerly to see if any of them would be appointed to a judgeship.

"Until the minute it was announced we didn't know it would happen," Khatib says, who adds she was nervous whether any of the four women would be appointed.

While Khatib's appointment is seen as significant in a symbolic sense, many say that the lack of an option for civil marriage in Israel remains problematic. A survey in 2017 by the Israeli nonprofit group Hiddush indicates that 76 percent of Jewish Israelis and 43 percent of Arab Israelis support implementing civil marriage.

"This is where we find the entrenched institutional discrimination against women in Israel," says Halperin-Kaddari, the Bar-Ilan University law professor. "All the religious courts in Israel are patriarchal and give power to men over women. One woman in one religious court is not enough."

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