Dr. Yofi Tirosh is an Associate Professor, at the Tel Aviv University Faculty of Law. She is interested in antidiscrimination law, civil rights, feminist jurisprudence, law and culture, and food law. Recently she focuses on sex-segregation, and the appropriate balance between religious accommodation and sex equality. Another focus of her scholarship is the ways in which the body and physical appearance are understood, regulated and constructed by the law.Tirosh joined the Tel Aviv Faculty of Law in 2008. She completed her LL.M. and S.J.D. at the University of Michigan Law School, where she was a fellow at Michigan's Institute for the Humanities. After completing her LL.B from the Hebrew University of Jerusalem, she clerked for Israel's Supreme Court.Among other distinctions, Tirosh is the 2018 recipient of Israel’s Public Law Association’s Gorni Award for contribution to public law, the Katan award for enhancement of gender equality through research, teaching, and activism. In 2018 she was awarded a $70,000 research grant for a project on anti-discrimination law and theory from Israel’s National Science Foundation.Alongside her research, teaching, and academic leadership, Tirosh is a prominent civil rights activist, working with policymakers and civil society organizations, and consulting pro bono on impact lawyering to promote sex equality. She is a frequent contributor of legal analysis to national and international media. Since 2012 Tirosh focuses on preventing the rapidly-expanding sex-segregation in Israel, in light of religious demands for accommodation. She is leading a potentially precedent-setting petition to the High Court of Justice, challenging the constitutionality of sex segregation in academic programs for religious and ultra-Orthodox students.
Balancing between sex equality and religious interests has been a challenge for Israel’s constitu... more Balancing between sex equality and religious interests has been a challenge for Israel’s constitutional law from the state’s inception. In recent years, however, the expanding repertoire of practices known as women’s exclusion has brought forth this tension with new formulations, intensity, and public sensitivity. This article maps the three decades of Israel’s High Court of Justice (HCJ or “the Court”) adjudication on women’s exclusion. The modesty requirements and sex-based physical segregation that have become rampant in Israel require re-articulations of the scope and status of the right to equality, as well as other constitutional rights such as dignity and liberty. The thirty-year database compiled for the purpose of this article encompasses all women’s exclusion cases decided by the HCJ. The database was built based on an annotated definition of women’s exclusion cases as a legal field, developed and explained in this article. The database reveals what might be defined as dim...
תקציר בעברית: האם יש לאמפתיה מקום בדיני איסור אפליה? בפסיקה מהעת האחרונה בבית הדין האזורי לעבודה,... more תקציר בעברית: האם יש לאמפתיה מקום בדיני איסור אפליה? בפסיקה מהעת האחרונה בבית הדין האזורי לעבודה, נקבע כי מעסיק חב בחובת אמפתיה כלפי עובד או מועמד לעבודה. כשהמעסיק מודע להיותו של המועמד לעבודה חבר בקבוצה מוחלשת, עליו להיות רגיש לאופן שבו התנהגותו עלולה להתפרש אצל אותו מועמד, ובפרט עליו לכוון את התנהגותו כך שהמועמד לא יחוש כי הטעם לדחייה נעוץ בהשתייכות הקבוצתית. כפי שציין בית הדין, "אכיפה יעילה של עקרונות השוויון צריכה לגרור בעקבותיה, בנסיבות המתאימות, דרישה משפטית למידה סבירה ומתבקשת של אמפתיה מצד המעסיק, הנדרש לשים עצמו בתוך נעליו של בן הקבוצה המוחלשת, קורבן האפליה, תוך מתן מענה לשאלה האם אדם סביר במצבו של העובד או של המועמד לעבודה עשוי לייחס את אי הקבלה לעבודה (או כל סוג של קיפוח או פגיעה הנוגע לתנאי העבודה) להשתייכות לקבוצה המוגנת על פי חוק". מאמר זה הוא הראשון לבחון את המשמעות של משפוט חובת האמפתיה. טענתנו היא כי החובה לנהוג באמפתיה במסגרת יחסי עבודה בכלל, ובדיני השוויון בפרט, מעוררת קשיים הן במישור המושגי והן במישור היישומי של הכוונת התנהגות.במישור המושגי נטען שלוש טענות. ראשית, קיים קושי למשפט רגש כמו אמפתיה, וספק בעינינו אם זהו תפקידו של המשפט. שנית, אפילו יש מקום לקבוע חובת אמפתיה, למושג האמפתיה מובנים שונים, וכל מובן עשוי לחייב סטנדרט נורמטיבי שונה, אשר באופן טבעי מעורר קשיים הייחודיים לו. שלישית, כיוון שמטרתם של דיני איסור אפליה היא במיגור אפליה, התמקדות באמפתיה עלולה להסיט את הדיון מאפליה לרגשות, ובכך לפגוע, באופן פרדוקסלי, בחתירה לשוויון במקום העבודה.במישור היישומי נטען שתי טענות. ראשית, יצירת חובה לחוש אמפתיה עלולה לגרום לראיפיקציה של הזהות שכלפיה אנו אמורים לחוש רגש זה. חשש הראיפיקציה מתחדד במיוחד במקרים שבהם העובד אינו מעוניין שהשתייכותו לקבוצה מוחלשת תכונן את זהותו כאדם, או לפחות את זהותו מול המעסיק. שנית, חובת האמפתיה מחייבת את המעסיק לברר את זהותו של העומד מולו, בירור שעשוי להיות לו מחיר כבד.לצד החשיבות באמפתיה בספרה הבין-אישית, ייבואה של אמפתיה לספרה המשפטית יוצרת קשיים לא מבוטלים. במקום שבו אין אפליה, אנו סבורים שאין בכוחה של חובה משפטית לאמפתיה להושיע מפני פגיעה בבני קבוצות מוגנות. English Abstract: Should there be a duty of empathy in employment discrimination law? Recent rulings by the Israeli labor courts suggest the answer is yes. According to the court, an employer should be sensitive to the way his or her behavior might be interpreted by the employee or job applicant. Specifically, the employer must act so that the employee or applicant will not feel the reason behind the decision is the latter’s membership in a protected group. This article is the first to critically examine the meaning of a duty of empathy. Our argument is that the duty to empathize raises significant challenges, conceptual and practical. Conceptually, we make three claims. First, it is difficult to legalize an emotion such as empathy, and it is not clear whether it’s the legal system’s role. Second, empathy means different things, and each meaning requires a different normative standard. Third, since the purpose of employment discrimination law is eliminating discrimination, focusing on empathy might divert the discussion from discrimination to feelings, and consequently, and paradoxically, undermine the aspiration for equality in the workplace.Practically, we two advance two claims. First, creating a duty to empathize might lead to a reification of the identity with which we are supposed to empathize. This concern is heightened especially when the employee is not interested that a specific identity be constitutive of her identity as a person, or at least vis-a-vis her employer. Second, the duty of empathy requires the employer to identify the identity of the employee or applicant. This can have high costs that outweigh the benefits of empathy. Although we acknowledge the importance of empathy in the inter-personal sphere, its importation to the legal sphere creates significant difficulties. Where there is no discrimination, we believe that a legal duty of empathy cannot assist us in protecting groups and individuals.
The French film I’ve Loved You for So Long (2008) raises intriguing questions about the tension b... more The French film I’ve Loved You for So Long (2008) raises intriguing questions about the tension between silence and speech. It centers on an accused woman who has chosen to give no explanation in words about the motive for her criminal act. Her silence worsens her punishment and renders it harder to rebuild her life after her release from prison. This essay proposes seeing this silence as a critique of law. It aims to challenge our understanding regarding the different kinds of silence before the law and to assess the practical consequences arising from the decision of legal subjects to remain silent.
This chapter is part of a volume dedicated to rewriting human rights cases issued by the European... more This chapter is part of a volume dedicated to rewriting human rights cases issued by the European Court of Human Rights. It uses the case of De La Cierva Osorio De Moscoso v. Spain (1999) as a platform to discuss the inherent tension typifying signs such as nobility titles – as merely symbolic or as carrying substantive content. The problem of one’s ownership of signs is especially acute in the case of women. I will argue that the distinction between form and substance collapses in this case, as in many other cases that involve allocation of allegedly merely symbolic signifiers – particularly to underprivileged groups. Moreover, I will examine the idea that a party that presents an antidiscrimination claim cannot seek equal allocation of matters that are in themselves inherently discriminatory. This fascinating characteristic of nobility titles – as relics of an old world of rank and social hierarchy – is one of the reasons that the applicants' discrimination claim was rebutted. I dub such claims ‘reciprocal antidiscrimination arguments,’ or RADARs, and sketch guidelines for thinking about this type of claims.
This Article addresses a common characteristic of antidiscrimination law: To what extent should o... more This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant can argue that accepting the plaintiffs’ claim that they are discriminated against on the basis of sexuality might exacerbate the exploitation of surrogate mothers. This Article dubs such rebuttal claims RADARs: reciprocal antidiscrimination arguments. It offers a framework for weighing RADARs’ fe...
Yale journal of health policy, law, and ethics, 2012
Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental an... more Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be a fat legal subject under current U.S. law. Second, maintaining that the antidiscrimination framework provides a necessary albeit insufficient context for fully capturing the meaning of being fat, it formulates the question of legal regulation of body size as a question of liberty, which is unpacked in terms of autonomy and human dignity. Drawing on the cri...
Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attract... more Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attracting the attention of constitutional and socio-legal scholars. No longer viewed as marginal or esoteric, claims about the significance of a person's-self presentation are now recognized as testing the limits of basic constitutional principles. Employing an overarching perspective that analyzes appearance cases outside of their doctrinal context, I argue that the legal inquiry, which focuses on whether a plaintiff's appearance reflects his or her identity accurately and stably, is flawed, since it relies on unattainable conceptions of the nature of identity and the meaning created by appearance. Diverging from current legal scholarship, which treats appearance cases only in the context of minority rights, I suggest that appearance adjudication should shift its focus from inquiring about the extent to which the appearance is connected to its bearer's identity to inquiring about ...
Tel Aviv University Legal Working Paper Series, 2010
∗Tel Aviv University, ytirosh@post.tau.ac.il This working paper is hosted by The Berkeley Electro... more ∗Tel Aviv University, ytirosh@post.tau.ac.il This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commer-cially reproduced without the permission of the copyright holder. http://law.bepress.com/taulwps/fp/art112 Copyright cс2010 by the author.
Our bodies are increasingly subject to a technologized gaze. This article seeks to better underst... more Our bodies are increasingly subject to a technologized gaze. This article seeks to better understand the privacy implications of the new, body-focused mode of surveillance, by studying body scanners. The scanners, officially known as AIT (Advanced Imaging Technology), are deployed in airports throughout the United States. During 2013 the TSA will pull out the scanners that enable a detailed view of the naked body and replace them with a generic image. Despite the policy change, the theoretical issues regarding privacy, technology and the human body persist. Judicial assessment of the legality of body scanners has thus far assumed that scanning violates privacy, but then promptly moved to balance the privacy violation with national security interests. In other words, the harm to privacy was assumed, but not articulated. This article fills a gap in the legal discourse by exploring how exactly body scanners violate privacy. Understanding what aspects of privacy are at stake is essentia...
Review of Education, Pedagogy, and Cultural Studies, 2006
The politics of body size has been the topic of intriguing feminist work. Although in my view thi... more The politics of body size has been the topic of intriguing feminist work. Although in my view this issue is still undertheorized, I have long sought for a way to bring what does exist in the literature into my academic activities. The opportunity arose when, as a graduate student at the ...
This Article addresses a common characteristic of antidiscrimination law: To what extent should o... more This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant can argue that accepting the plaintiffs’ claim that they are discriminated against on the basis of sexuality might exacerbate the exploitation of surrogate mothers. This Article dubs such rebuttal claims RADARs: reciprocal antidiscrimination arguments. It offers a framework for weighing RADARs’ feasibility, by mapping both their potential and their limitations. It concludes that RADARs can be useful analytical tools for legislators and policymakers when assessing the overall impact of specific antidiscrimination measures. RADARs are also helpful for cause lawyers in considering the long term impacts of antidiscrimination litigation. In contrast, courts should be cautious in accepting RADARs made by defendants in antidiscrimination cases due to the inherent institutional and procedural limitations of adjudication.
Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attract... more Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attracting the attention of constitutional and socio-legal scholars. No longer viewed as marginal or esoteric, claims about the significance of a person's-self presentation are now recognized as testing the limits of basic constitutional principles. Employing an overarching perspective that analyzes appearance cases outside of their doctrinal context, I argue that the legal inquiry, which focuses on whether a plaintiff's appearance reflects his or her identity accurately and stably, is flawed, since it relies on unattainable conceptions of the nature of identity and the meaning created by appearance. Diverging from current legal scholarship, which treats appearance cases only in the context of minority rights, I suggest that appearance adjudication should shift its focus from inquiring about the extent to which the appearance is connected to its bearer's identity to inquiring about the significance of appearance to his or her personhood. This shift reflects the notion that the vulnerability and complexity of appearance are part of the universal human experience, and not just the plight of minorities. Such a normative shift will produce a more adequate legal treatment of claims regarding the personal and social significance of appearance. Developing an alternative theoretical framework, I propose understanding appearance as the poetics of personhood. Both in appearance and in poetry the medium is inherent to the meaning it creates, and thus both appearance and poetry are hard to rearticulate in categorical or non-figurative language. My approach can transform the legal discourse from considering identity in the abstract to accommodating the experiences, voices, and interactions of concrete, embodied individuals, who may not always be able to articulate a rational justification for their appearance, but are still certain of its central role in their personhood.
Yale Journal of Health Policy, Law, and Ethics, 2012
Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental an... more Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be a fat legal subject under current U.S. law. Second, maintaining that the antidiscrimination framework provides a necessary albeit insufficient context for fully capturing the meaning of being fat, it formulates the question of legal regulation of body size as a question of liberty, which is unpacked in terms of autonomy and human dignity. Drawing on the critique of mind-body dualism, and on the philosophical tradition of phenomenology, this Article offers a new framework for understanding the experience of being a fat subject of the law; one that goes beyond the medical conceptualization of body size and addresses the nuanced ways in which body size and shape and ways of eating and moving the body have intimate meanings for legal subjects. Addressing practical dilemmas such as the legitimacy of charging fat passengers for two airplane tickets or whether weight-based employment discrimination should be prohibited, it concludes that if American constitutional law is to remain coherent in its protection of liberty, autonomy, and dignity, it must recognize a right to be of any body size, including the right to be fat.
Our bodies are increasingly subject to a technologized gaze. This article seeks to better underst... more Our bodies are increasingly subject to a technologized gaze. This article seeks to better understand the privacy implications of the new, body-focused mode of surveillance, by studying body scanners. The scanners, officially known as AIT (Advanced Imaging Technology), are deployed in airports throughout the United States. During 2013 the TSA will pull out the scanners that enable a detailed view of the naked body and replace them with a generic image. Despite the policy change, the theoretical issues regarding privacy, technology and the human body persist.
Judicial assessment of the legality of body scanners has thus far assumed that scanning violates privacy, but then promptly moved to balance the privacy violation with national security interests. In other words, the harm to privacy was assumed, but not articulated. This article fills a gap in the legal discourse by exploring how exactly body scanners violate privacy. Understanding what aspects of privacy are at stake is essential, for producing a convincing balance between privacy and conflicting interests.
We recognize two dissonances that passengers experience when they undergo body scanning in public places. The first, which we call the dress/undress dissonance, results from the conflicting messages that the State conveys as to bodily privacy: ordinarily, the State expects us to conceal our body, whereas in the airport context it is the State itself that requires us to expose our body and subject it to its gaze. The second is the normal/abnormal dissonance. In most contexts, the State conveys a message that it does not take account of its citizens' bodies, in the sense that it is blind to bodily diversity so to enable equal treatment and protection. Body scanners, by contrast, amplify physical differences. We conceptualize these two dissonances within a theoretical understanding of privacy as a concrete manifestation of human dignity, encapsulated in the notion of privacy as control.
Beyond its contribution to the understanding of body scanners, the article has a broader contribution: to surveillance studies, to privacy theory, and to the complex relationship between the law and the human body, and between law and technology.
Keywords: Privacy, surveillance, bodily privacy, human body, body scanners, technology, body and law, abnormal bodies
The film I’ve Loved You for So Long (France, 2008) raises intriguing questions about the tension ... more The film I’ve Loved You for So Long (France, 2008) raises intriguing questions about the tension between silence and speech. It centers on an accused woman who has chosen to give no explanation in words about the motive for her criminal act. Her silence worsens her punishment and renders it harder to rebuild her life after her release from prison. This essay proposes seeing this silence as a critique of law. It aims to challenge our understanding regarding the different kinds of silence before the law and to assess the practical consequences arising from the decision of legal subjects to remain silent.
International Journal of Constitutional Law (ICON), 2021
Balancing between sex equality and religious interests has been a challenge for Israel’s constitu... more Balancing between sex equality and religious interests has been a challenge for Israel’s constitutional law from the state’s inception. In recent years, however, the expanding repertoire of practices known as women’s exclusion has brought forth this tension with new formulations, intensity, and public sensitivity. This article maps the three decades of Israel’s High Court of Justice (HCJ or “the Court”) adjudication on women’s exclusion. The modesty requirements and sex-based physical segregation that have become rampant in Israel, require re-articulations of the scope and status of the right to equality, as well as other constitutional rights such as dignity and liberty. The thirty-year database compiled for the purpose of this article encompasses all women’s exclusion cases decided by the HCJ. The database was built based on a novel definition of women’s exclusion cases as a legal field, developed and explained in this article. The database reveals what might be defined as diminishing constitutional adjudication. In the nineteen nineties, the Court has labored in elevating sex equality, developing a doctrinal structure that guards it against religion-based demands to legitimize exclusion norms. In contrast, in the past decade, the Court has almost completely refrained from reviewing cases on the merit or writing reasoned opinions, adopting ad-hoc problem-solving approaches or taking dispute resolution approaches prompting the parties to find compromise, without delineating the legal framework that should guide the disputes.
Balancing between sex equality and religious interests has been a challenge for Israel’s constitu... more Balancing between sex equality and religious interests has been a challenge for Israel’s constitutional law from the state’s inception. In recent years, however, the expanding repertoire of practices known as women’s exclusion has brought forth this tension with new formulations, intensity, and public sensitivity. This article maps the three decades of Israel’s High Court of Justice (HCJ or “the Court”) adjudication on women’s exclusion. The modesty requirements and sex-based physical segregation that have become rampant in Israel require re-articulations of the scope and status of the right to equality, as well as other constitutional rights such as dignity and liberty. The thirty-year database compiled for the purpose of this article encompasses all women’s exclusion cases decided by the HCJ. The database was built based on an annotated definition of women’s exclusion cases as a legal field, developed and explained in this article. The database reveals what might be defined as dim...
תקציר בעברית: האם יש לאמפתיה מקום בדיני איסור אפליה? בפסיקה מהעת האחרונה בבית הדין האזורי לעבודה,... more תקציר בעברית: האם יש לאמפתיה מקום בדיני איסור אפליה? בפסיקה מהעת האחרונה בבית הדין האזורי לעבודה, נקבע כי מעסיק חב בחובת אמפתיה כלפי עובד או מועמד לעבודה. כשהמעסיק מודע להיותו של המועמד לעבודה חבר בקבוצה מוחלשת, עליו להיות רגיש לאופן שבו התנהגותו עלולה להתפרש אצל אותו מועמד, ובפרט עליו לכוון את התנהגותו כך שהמועמד לא יחוש כי הטעם לדחייה נעוץ בהשתייכות הקבוצתית. כפי שציין בית הדין, "אכיפה יעילה של עקרונות השוויון צריכה לגרור בעקבותיה, בנסיבות המתאימות, דרישה משפטית למידה סבירה ומתבקשת של אמפתיה מצד המעסיק, הנדרש לשים עצמו בתוך נעליו של בן הקבוצה המוחלשת, קורבן האפליה, תוך מתן מענה לשאלה האם אדם סביר במצבו של העובד או של המועמד לעבודה עשוי לייחס את אי הקבלה לעבודה (או כל סוג של קיפוח או פגיעה הנוגע לתנאי העבודה) להשתייכות לקבוצה המוגנת על פי חוק". מאמר זה הוא הראשון לבחון את המשמעות של משפוט חובת האמפתיה. טענתנו היא כי החובה לנהוג באמפתיה במסגרת יחסי עבודה בכלל, ובדיני השוויון בפרט, מעוררת קשיים הן במישור המושגי והן במישור היישומי של הכוונת התנהגות.במישור המושגי נטען שלוש טענות. ראשית, קיים קושי למשפט רגש כמו אמפתיה, וספק בעינינו אם זהו תפקידו של המשפט. שנית, אפילו יש מקום לקבוע חובת אמפתיה, למושג האמפתיה מובנים שונים, וכל מובן עשוי לחייב סטנדרט נורמטיבי שונה, אשר באופן טבעי מעורר קשיים הייחודיים לו. שלישית, כיוון שמטרתם של דיני איסור אפליה היא במיגור אפליה, התמקדות באמפתיה עלולה להסיט את הדיון מאפליה לרגשות, ובכך לפגוע, באופן פרדוקסלי, בחתירה לשוויון במקום העבודה.במישור היישומי נטען שתי טענות. ראשית, יצירת חובה לחוש אמפתיה עלולה לגרום לראיפיקציה של הזהות שכלפיה אנו אמורים לחוש רגש זה. חשש הראיפיקציה מתחדד במיוחד במקרים שבהם העובד אינו מעוניין שהשתייכותו לקבוצה מוחלשת תכונן את זהותו כאדם, או לפחות את זהותו מול המעסיק. שנית, חובת האמפתיה מחייבת את המעסיק לברר את זהותו של העומד מולו, בירור שעשוי להיות לו מחיר כבד.לצד החשיבות באמפתיה בספרה הבין-אישית, ייבואה של אמפתיה לספרה המשפטית יוצרת קשיים לא מבוטלים. במקום שבו אין אפליה, אנו סבורים שאין בכוחה של חובה משפטית לאמפתיה להושיע מפני פגיעה בבני קבוצות מוגנות. English Abstract: Should there be a duty of empathy in employment discrimination law? Recent rulings by the Israeli labor courts suggest the answer is yes. According to the court, an employer should be sensitive to the way his or her behavior might be interpreted by the employee or job applicant. Specifically, the employer must act so that the employee or applicant will not feel the reason behind the decision is the latter’s membership in a protected group. This article is the first to critically examine the meaning of a duty of empathy. Our argument is that the duty to empathize raises significant challenges, conceptual and practical. Conceptually, we make three claims. First, it is difficult to legalize an emotion such as empathy, and it is not clear whether it’s the legal system’s role. Second, empathy means different things, and each meaning requires a different normative standard. Third, since the purpose of employment discrimination law is eliminating discrimination, focusing on empathy might divert the discussion from discrimination to feelings, and consequently, and paradoxically, undermine the aspiration for equality in the workplace.Practically, we two advance two claims. First, creating a duty to empathize might lead to a reification of the identity with which we are supposed to empathize. This concern is heightened especially when the employee is not interested that a specific identity be constitutive of her identity as a person, or at least vis-a-vis her employer. Second, the duty of empathy requires the employer to identify the identity of the employee or applicant. This can have high costs that outweigh the benefits of empathy. Although we acknowledge the importance of empathy in the inter-personal sphere, its importation to the legal sphere creates significant difficulties. Where there is no discrimination, we believe that a legal duty of empathy cannot assist us in protecting groups and individuals.
The French film I’ve Loved You for So Long (2008) raises intriguing questions about the tension b... more The French film I’ve Loved You for So Long (2008) raises intriguing questions about the tension between silence and speech. It centers on an accused woman who has chosen to give no explanation in words about the motive for her criminal act. Her silence worsens her punishment and renders it harder to rebuild her life after her release from prison. This essay proposes seeing this silence as a critique of law. It aims to challenge our understanding regarding the different kinds of silence before the law and to assess the practical consequences arising from the decision of legal subjects to remain silent.
This chapter is part of a volume dedicated to rewriting human rights cases issued by the European... more This chapter is part of a volume dedicated to rewriting human rights cases issued by the European Court of Human Rights. It uses the case of De La Cierva Osorio De Moscoso v. Spain (1999) as a platform to discuss the inherent tension typifying signs such as nobility titles – as merely symbolic or as carrying substantive content. The problem of one’s ownership of signs is especially acute in the case of women. I will argue that the distinction between form and substance collapses in this case, as in many other cases that involve allocation of allegedly merely symbolic signifiers – particularly to underprivileged groups. Moreover, I will examine the idea that a party that presents an antidiscrimination claim cannot seek equal allocation of matters that are in themselves inherently discriminatory. This fascinating characteristic of nobility titles – as relics of an old world of rank and social hierarchy – is one of the reasons that the applicants' discrimination claim was rebutted. I dub such claims ‘reciprocal antidiscrimination arguments,’ or RADARs, and sketch guidelines for thinking about this type of claims.
This Article addresses a common characteristic of antidiscrimination law: To what extent should o... more This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant can argue that accepting the plaintiffs’ claim that they are discriminated against on the basis of sexuality might exacerbate the exploitation of surrogate mothers. This Article dubs such rebuttal claims RADARs: reciprocal antidiscrimination arguments. It offers a framework for weighing RADARs’ fe...
Yale journal of health policy, law, and ethics, 2012
Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental an... more Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be a fat legal subject under current U.S. law. Second, maintaining that the antidiscrimination framework provides a necessary albeit insufficient context for fully capturing the meaning of being fat, it formulates the question of legal regulation of body size as a question of liberty, which is unpacked in terms of autonomy and human dignity. Drawing on the cri...
Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attract... more Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attracting the attention of constitutional and socio-legal scholars. No longer viewed as marginal or esoteric, claims about the significance of a person's-self presentation are now recognized as testing the limits of basic constitutional principles. Employing an overarching perspective that analyzes appearance cases outside of their doctrinal context, I argue that the legal inquiry, which focuses on whether a plaintiff's appearance reflects his or her identity accurately and stably, is flawed, since it relies on unattainable conceptions of the nature of identity and the meaning created by appearance. Diverging from current legal scholarship, which treats appearance cases only in the context of minority rights, I suggest that appearance adjudication should shift its focus from inquiring about the extent to which the appearance is connected to its bearer's identity to inquiring about ...
Tel Aviv University Legal Working Paper Series, 2010
∗Tel Aviv University, ytirosh@post.tau.ac.il This working paper is hosted by The Berkeley Electro... more ∗Tel Aviv University, ytirosh@post.tau.ac.il This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commer-cially reproduced without the permission of the copyright holder. http://law.bepress.com/taulwps/fp/art112 Copyright cс2010 by the author.
Our bodies are increasingly subject to a technologized gaze. This article seeks to better underst... more Our bodies are increasingly subject to a technologized gaze. This article seeks to better understand the privacy implications of the new, body-focused mode of surveillance, by studying body scanners. The scanners, officially known as AIT (Advanced Imaging Technology), are deployed in airports throughout the United States. During 2013 the TSA will pull out the scanners that enable a detailed view of the naked body and replace them with a generic image. Despite the policy change, the theoretical issues regarding privacy, technology and the human body persist. Judicial assessment of the legality of body scanners has thus far assumed that scanning violates privacy, but then promptly moved to balance the privacy violation with national security interests. In other words, the harm to privacy was assumed, but not articulated. This article fills a gap in the legal discourse by exploring how exactly body scanners violate privacy. Understanding what aspects of privacy are at stake is essentia...
Review of Education, Pedagogy, and Cultural Studies, 2006
The politics of body size has been the topic of intriguing feminist work. Although in my view thi... more The politics of body size has been the topic of intriguing feminist work. Although in my view this issue is still undertheorized, I have long sought for a way to bring what does exist in the literature into my academic activities. The opportunity arose when, as a graduate student at the ...
This Article addresses a common characteristic of antidiscrimination law: To what extent should o... more This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant can argue that accepting the plaintiffs’ claim that they are discriminated against on the basis of sexuality might exacerbate the exploitation of surrogate mothers. This Article dubs such rebuttal claims RADARs: reciprocal antidiscrimination arguments. It offers a framework for weighing RADARs’ feasibility, by mapping both their potential and their limitations. It concludes that RADARs can be useful analytical tools for legislators and policymakers when assessing the overall impact of specific antidiscrimination measures. RADARs are also helpful for cause lawyers in considering the long term impacts of antidiscrimination litigation. In contrast, courts should be cautious in accepting RADARs made by defendants in antidiscrimination cases due to the inherent institutional and procedural limitations of adjudication.
Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attract... more Cases involving attires, hairstyles, names, or manners of speaking have been increasingly attracting the attention of constitutional and socio-legal scholars. No longer viewed as marginal or esoteric, claims about the significance of a person's-self presentation are now recognized as testing the limits of basic constitutional principles. Employing an overarching perspective that analyzes appearance cases outside of their doctrinal context, I argue that the legal inquiry, which focuses on whether a plaintiff's appearance reflects his or her identity accurately and stably, is flawed, since it relies on unattainable conceptions of the nature of identity and the meaning created by appearance. Diverging from current legal scholarship, which treats appearance cases only in the context of minority rights, I suggest that appearance adjudication should shift its focus from inquiring about the extent to which the appearance is connected to its bearer's identity to inquiring about the significance of appearance to his or her personhood. This shift reflects the notion that the vulnerability and complexity of appearance are part of the universal human experience, and not just the plight of minorities. Such a normative shift will produce a more adequate legal treatment of claims regarding the personal and social significance of appearance. Developing an alternative theoretical framework, I propose understanding appearance as the poetics of personhood. Both in appearance and in poetry the medium is inherent to the meaning it creates, and thus both appearance and poetry are hard to rearticulate in categorical or non-figurative language. My approach can transform the legal discourse from considering identity in the abstract to accommodating the experiences, voices, and interactions of concrete, embodied individuals, who may not always be able to articulate a rational justification for their appearance, but are still certain of its central role in their personhood.
Yale Journal of Health Policy, Law, and Ethics, 2012
Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental an... more Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be a fat legal subject under current U.S. law. Second, maintaining that the antidiscrimination framework provides a necessary albeit insufficient context for fully capturing the meaning of being fat, it formulates the question of legal regulation of body size as a question of liberty, which is unpacked in terms of autonomy and human dignity. Drawing on the critique of mind-body dualism, and on the philosophical tradition of phenomenology, this Article offers a new framework for understanding the experience of being a fat subject of the law; one that goes beyond the medical conceptualization of body size and addresses the nuanced ways in which body size and shape and ways of eating and moving the body have intimate meanings for legal subjects. Addressing practical dilemmas such as the legitimacy of charging fat passengers for two airplane tickets or whether weight-based employment discrimination should be prohibited, it concludes that if American constitutional law is to remain coherent in its protection of liberty, autonomy, and dignity, it must recognize a right to be of any body size, including the right to be fat.
Our bodies are increasingly subject to a technologized gaze. This article seeks to better underst... more Our bodies are increasingly subject to a technologized gaze. This article seeks to better understand the privacy implications of the new, body-focused mode of surveillance, by studying body scanners. The scanners, officially known as AIT (Advanced Imaging Technology), are deployed in airports throughout the United States. During 2013 the TSA will pull out the scanners that enable a detailed view of the naked body and replace them with a generic image. Despite the policy change, the theoretical issues regarding privacy, technology and the human body persist.
Judicial assessment of the legality of body scanners has thus far assumed that scanning violates privacy, but then promptly moved to balance the privacy violation with national security interests. In other words, the harm to privacy was assumed, but not articulated. This article fills a gap in the legal discourse by exploring how exactly body scanners violate privacy. Understanding what aspects of privacy are at stake is essential, for producing a convincing balance between privacy and conflicting interests.
We recognize two dissonances that passengers experience when they undergo body scanning in public places. The first, which we call the dress/undress dissonance, results from the conflicting messages that the State conveys as to bodily privacy: ordinarily, the State expects us to conceal our body, whereas in the airport context it is the State itself that requires us to expose our body and subject it to its gaze. The second is the normal/abnormal dissonance. In most contexts, the State conveys a message that it does not take account of its citizens' bodies, in the sense that it is blind to bodily diversity so to enable equal treatment and protection. Body scanners, by contrast, amplify physical differences. We conceptualize these two dissonances within a theoretical understanding of privacy as a concrete manifestation of human dignity, encapsulated in the notion of privacy as control.
Beyond its contribution to the understanding of body scanners, the article has a broader contribution: to surveillance studies, to privacy theory, and to the complex relationship between the law and the human body, and between law and technology.
Keywords: Privacy, surveillance, bodily privacy, human body, body scanners, technology, body and law, abnormal bodies
The film I’ve Loved You for So Long (France, 2008) raises intriguing questions about the tension ... more The film I’ve Loved You for So Long (France, 2008) raises intriguing questions about the tension between silence and speech. It centers on an accused woman who has chosen to give no explanation in words about the motive for her criminal act. Her silence worsens her punishment and renders it harder to rebuild her life after her release from prison. This essay proposes seeing this silence as a critique of law. It aims to challenge our understanding regarding the different kinds of silence before the law and to assess the practical consequences arising from the decision of legal subjects to remain silent.
International Journal of Constitutional Law (ICON), 2021
Balancing between sex equality and religious interests has been a challenge for Israel’s constitu... more Balancing between sex equality and religious interests has been a challenge for Israel’s constitutional law from the state’s inception. In recent years, however, the expanding repertoire of practices known as women’s exclusion has brought forth this tension with new formulations, intensity, and public sensitivity. This article maps the three decades of Israel’s High Court of Justice (HCJ or “the Court”) adjudication on women’s exclusion. The modesty requirements and sex-based physical segregation that have become rampant in Israel, require re-articulations of the scope and status of the right to equality, as well as other constitutional rights such as dignity and liberty. The thirty-year database compiled for the purpose of this article encompasses all women’s exclusion cases decided by the HCJ. The database was built based on a novel definition of women’s exclusion cases as a legal field, developed and explained in this article. The database reveals what might be defined as diminishing constitutional adjudication. In the nineteen nineties, the Court has labored in elevating sex equality, developing a doctrinal structure that guards it against religion-based demands to legitimize exclusion norms. In contrast, in the past decade, the Court has almost completely refrained from reviewing cases on the merit or writing reasoned opinions, adopting ad-hoc problem-solving approaches or taking dispute resolution approaches prompting the parties to find compromise, without delineating the legal framework that should guide the disputes.
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Papers by Yofi Tirosh
Judicial assessment of the legality of body scanners has thus far assumed that scanning violates privacy, but then promptly moved to balance the privacy violation with national security interests. In other words, the harm to privacy was assumed, but not articulated. This article fills a gap in the legal discourse by exploring how exactly body scanners violate privacy. Understanding what aspects of privacy are at stake is essential, for producing a convincing balance between privacy and conflicting interests.
We recognize two dissonances that passengers experience when they undergo body scanning in public places. The first, which we call the dress/undress dissonance, results from the conflicting messages that the State conveys as to bodily privacy: ordinarily, the State expects us to conceal our body, whereas in the airport context it is the State itself that requires us to expose our body and subject it to its gaze. The second is the normal/abnormal dissonance. In most contexts, the State conveys a message that it does not take account of its citizens' bodies, in the sense that it is blind to bodily diversity so to enable equal treatment and protection. Body scanners, by contrast, amplify physical differences. We conceptualize these two dissonances within a theoretical understanding of privacy as a concrete manifestation of human dignity, encapsulated in the notion of privacy as control.
Beyond its contribution to the understanding of body scanners, the article has a broader contribution: to surveillance studies, to privacy theory, and to the complex relationship between the law and the human body, and between law and technology.
Keywords: Privacy, surveillance, bodily privacy, human body, body scanners, technology, body and law, abnormal bodies
Judicial assessment of the legality of body scanners has thus far assumed that scanning violates privacy, but then promptly moved to balance the privacy violation with national security interests. In other words, the harm to privacy was assumed, but not articulated. This article fills a gap in the legal discourse by exploring how exactly body scanners violate privacy. Understanding what aspects of privacy are at stake is essential, for producing a convincing balance between privacy and conflicting interests.
We recognize two dissonances that passengers experience when they undergo body scanning in public places. The first, which we call the dress/undress dissonance, results from the conflicting messages that the State conveys as to bodily privacy: ordinarily, the State expects us to conceal our body, whereas in the airport context it is the State itself that requires us to expose our body and subject it to its gaze. The second is the normal/abnormal dissonance. In most contexts, the State conveys a message that it does not take account of its citizens' bodies, in the sense that it is blind to bodily diversity so to enable equal treatment and protection. Body scanners, by contrast, amplify physical differences. We conceptualize these two dissonances within a theoretical understanding of privacy as a concrete manifestation of human dignity, encapsulated in the notion of privacy as control.
Beyond its contribution to the understanding of body scanners, the article has a broader contribution: to surveillance studies, to privacy theory, and to the complex relationship between the law and the human body, and between law and technology.
Keywords: Privacy, surveillance, bodily privacy, human body, body scanners, technology, body and law, abnormal bodies