Even Without New Laws, Israel Can Do More for LGBTQ Rights

Most of the LGBTQ community's recent gains have been made through the High Court rather than legislation, and there is still a long way to go

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A gay pride parade in Jerusalem.
A gay pride parade in Jerusalem.Credit: Olivier Fitoussi

Cabinet members at this year’s Jerusalem Pride parade on June 2 boasted of several wins for LGBTQ people in Israel, but none of them were obtained through legislation. While most of the parties in the governing coalition openly support the community, a few are more than merely conservative. In 2020, MK Walid Taha of the United Arab List said that homosexuality is “almost nonexistent” in Arab society and he voted in the Knesset against bills banning so-called conversion therapy.

The cabinet ministers who nevertheless did effect change did so through ministry regulations or coalition negotiations. Health Minister Nitzan Horowitz and Labor, Social Affairs and Social Services Minister Meir Cohen began implementing the recommendations of an interministerial committee for advancing transgender people. Social Equality Minister Meirav Cohen allocated 90 million shekels ($26.7 million) to benefit the LGBTQ community, the largest such earmark. It included funding for LGBTQ centers in some 70 localities.

Horowitz, who has declared the Health Ministry as the leader for equal rights in Israel, is responsible for several impressive successes. They include a circular from the director general that forbids conversion therapy and allows taking legal action against health system workers who engage in it, doubling the number of slots for gender confirmation surgery and ending restrictions on accepting blood donations from men who have sex with men.

As a result of the coalition’s political complexity, issues such as ending discrimination against same-sex male couples and single men who choose to have children using a surrogacy have been routed during the past year to the High Court of Justice rather than the legislature. Horowitz told the court he supported ending the discrimination, but added that “for now it’s not feasible to advance a surrogacy law for single-sex couples.” Just a week later, High Court President Justice Esther Hayut ruled that the status quo was discriminatory, and in January Horowitz announced that all Israelis would now have equal access to surrogate pregnancies.

Similarly, Cohen and Justice Minister Gideon Sa’ar told the court in March that while they support equal adoption rights for LGBTQ people, passing legislation on the issue was not feasible at the moment. The state did not object to a hearing on the issue, effectively asking the High Court to handle the political hot potato.

Or Keshet, director of government relations for Aguda, Israel’s LGBT Task Force, says some cabinet members did nothing for LGBTQ rights. He warns, “Without anchoring in the budget, most of the government’s gains are expected to be erased the moment the Knesset dissolves or the government collapses.”

Although legislation recognizing civil marriages, ending adoption discrimination, outlawing conversion therapy and enabling full rights looks like a distant dream, the ministers can take some steps without them.

A ministry circular

When Naftali Bennett was education minister, about four years ago, the ministry’s psychological services unit began formulating guidelines for dealing with LGBTQ schoolchildren. One of the most important and sensitive sections is the one involving transgender students, including issues such as the use of gendered language and dealing with situations such as physical education classes and accommodations during overnight school trips.

Despite the work invested in this, the rules were never issued in a circular. The ministry blamed the delay on technical issues. LGBTQ organizations had renewed hope in March when Ina Zaltsman, director of the Education Ministry’s pedagogy administration, told the Knesset Education, Culture and Sports Committee that her ministry was going to issue the document. She noted the move had the backing of Education Minister Yifat Shasha-Biton. She added the draft would be shared with groups in the field for consultation, but the draft has yet to be released. The ministry commented the document would be issued “fully and transparently to the public after decisions are made on the issue.” Aguda officials expressed fear the document’s wording will be softened and won’t deal with substantive issues like how to treat transgender students in the education system.”

Course funding

Another relevant issue is budgeting for school courses. Since 2016 the Education Ministry has paid for courses taught by external organizations on sexual orientation and gender identity. State religious schools have also begun getting involved in recent years, mainly with education staff, not students. The annual budget for such courses is around 1.5 million shekels, set by regulations and sometimes supplemented by “coalition funding” allocated to political parties. However, the budget is insufficient for meeting growing demand. “We’re happy with this far-sighted regulation,” said Mor Nahari, director of Hoshen, “but 8 million shekels are needed to reach every class and faculty member in the country, even once a year.”

Arab-Israeli LGBTQ demonstration.Credit: Amir Levy

The Education Ministry stresses that the issue is not only addressed in external courses, and that relevant content on sexual orientation is also present in school life skills courses. Ministry officials note the ministry in recent years has marked the International Day Against Homophobia, Biphobia and Transphobia, sending letters to schools recommending educational material for dealing with the issue, some developed within the ministry.

Official documents

Currently, two LGBTQ parents aren’t eligible to sign their child’s birth certificate, only the biological parent. The non-biological parent is recognized only in the population registry. Haaretz published an example Friday, showing how the state refused to recognize the joint custody of three lesbian couples based on their children’s foreign birth certificates – in violation of a High Court ruling.

Interior Minister Ayelet Shaked, who is responsible for the population registry, IDs, passports and birth certificates, didn’t not take a single step to rectify the situation. Sa’ar and Cohen wrote in March, in their appeal, that they believed the conditions for issuing a legal parental order – which establishes parental relations between the partner of the biological mother and child – should be loosened for the minor’s benefit.

The case before the court dealt with issuing an order when the Israeli biological parent and the second parent enter a graduated process for receiving status. The minister said in their response that if most of the period of the process for receiving permanent residency in Israel was spent in Israel, they could agree to issuing the order, and not only in cases of a citizen and a resident until March.

The Justice Ministry also issued transparent and accessible conditions for issuing a legal parental order. The Aguda welcomed the change, but called the process a “discriminatory practice.” The Aguda demanded that parents be registered simply and for free, without entering expensive legal processes, like “regular” parents. Another issue tied to documents is allowing transgender people to delete their old name from their ID immediately. The law currently mandates they wait seven years. Last month, Haaretz reported that a transgender woman from Tel Aviv petitioned the High Court to strike down the law, so people undergoing gender reassignment can open a new page. “It’s like a stain from the past, a wound, a symbol of what I once was,” Nofar Morali, who filed the petition, said.

Prominent activist Nora Greenberg, who pushed to amend the name regulations regarding transgender people in 2004, commented to Haaretz via Twitter that an agreement had been reached between the Association for Civil Rights in Israel and the interior minister that transgender people who changed their name in their ID and were interested in doing so could ask the minster to delete their previous name. The Interior Ministry commented in past that it would act according to the wording of the law. The ministry has until the end of the month to submit its response to the High Court.

Gender confirmation

In December 2020 the justice and the social services ministries issued a report meant to improve the state’s approach to transgender people. One of its recommendations was to reassign the process for updating sex or gender designations from the Health Ministry to a Justice Ministry committee, so as not to make the registration dependent on medical procedures. The report recommended allowing the panel to approve an abbreviated process, based on presenting administrative proof of transition and receiving a document to submit to the Interior Minister’s Population and Immigration Authority when requesting a change from the sex assigned at birth. This recommendation has yet to be implemented.

The Justice Ministry says it was agreed that such a committee would be established, but it would remain under the aegis of the Health Ministry. Another issue is expanding the activity of the Gender Reassignment Board, which authorizes gender confirmation surgery and approves changes to gender markers in official documents. The only such committee operating today is in Sheba Medical Center, Tel Hashomer, outside of Tel Aviv.

Protesting for gay surrogacy rights in Israel, Sept. 3, 2016Credit: Emil Salman

The Aguda wants to open additional committees throughout Israel. Horowitz, who visited Sheba on his first day as health minister, in a step that angered conservatives, established a professional committee headed by Dr. Boaz Lev, the ministry’s ombudsman. The committee was asked to hand in its conclusions by early August, after which they will be translated into a director general’s circular and applied to the field.

Egg donations

About a month ago, dozens of women and the Aguda asked Horowitz to regularize the procedure that would enable same-sex female couples to start a family. Today, the Health Ministry doesn’t permit lesbian couples to have a joint pregnancy – by which one partner carries the fertilized egg of the other partner. Those who want to do so go abroad.

“The arbitrary ban against us is infuriating, insulting and outdated – and the time has come for it to be eliminated,” the women who lost a 2012 case petitioning for the right to a joint pregnancy wrote in a letter to Horowitz. His office said it is studying the issue.

The ministry commented, “As the health minister has done from the day he assumed his position, in this case as well, if it is found that he and the ministry have the power to ease things for lesbian women, as for any other person, to start a family in Israel according to their choice and with full equality – they will.”

Permits for Palestinians

“What will they do? Sell their body?” Justice Daphne Barak Erez asked the government representatives, who squirmed in her presence regarding their refusal to grant a comprehensive work permit to Palestinian LGBTQ people who receive asylum in Israel. According to data submitted to the High Court in January, there are 66 such people. The work permits are given only to the employer, who applies for the permit. Only 13 of the 66 have obtained a work permit through an employer. The other 53 were denied a work permit and are living in poverty.

In response to a petition submitted by human rights organizations to the High Court, the state expressed fear that granting a sweeping permit would encourage additional Palestinians to enter Israel and submit a similar request for asylum. The state expressed a fear of “a significant difficulty in checking the correctness of the claims in factual terms,” and noted that a response to the petitioners’ demand would “very significantly” reduce the Palestinians’ chances of finding a permanent solution outside the boundaries of the country.

The office of the justice minister commented: “The minister has expressed support for amending the adoption law in his announcement to the High Court on the subject. On the issue of registration of parenthood: Minister Sa’ar, together with the welfare minister, accepted most of the committee’s recommendations. For the first time it was decided to publish the full conditions for a court parenting order, based on the team’s recommendations.

“Regarding the team on the subject of transgender people –most of its recommendations were implemented. We established a hotline regarding discrimination, exclusion or improper treatment; there was designated training for the legal aid teams, and a definition of designated reviewers for accompanying requests on the subject of the transgender community. On the subject of transferring responsibility for gender confirmation, the requisite discussion between the ministries has not yet clarified the issue.

In a statement, Cohen’s office said: “The Social Services Ministry is the ministry leading in the development of services for the LGBTQ community, out of an egalitarian belief that every person is worthy of being respected and for him and his needs to be seen. We see a very great change taking place in Israeli society and the ministry professionals who are knowledgeable in handling the issue are receiving cooperation even in new and surprising places in Arab and religious society.”

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