Gay Reservists Are Picking the Wrong Fight

Claiming that Israeli law doesn’t recognize bereavement rights for LGBT families is a conservative interpretation of the law, which flies in the face of all recent legal rulings and could do more harm than good.

Aeyal Gross
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A photo released by the IDF shows two male soldiers holding hands.Credit: IDF Spokesperson's Unit
Aeyal Gross

An ad published in the Hebrew edition of Haaretz –  as part of a campaign by gay reservists – claims that Israeli law does not “automatically recognize bereavement rights when it comes to LGBT families,” and that the wording of the law discriminates against and doesn’t recognize same-sex couples.

The people who signed the ad called for a change in the law. However, in 1996 the late Justice Shaul Aloni ruled in the case of Adir Steiner, whose partner had died during military service, that it was illegal to discriminate because of sexual orientation. He ruled that the clause dealing with common-law couples should, for legal purposes, also be applied to same-sex couples. However, another judge ruled against Steiner – basing this decision on the law concerning families of fallen soldiers – and the matter ended in compromise. In practice, Aloni’s egalitarian approach prevailed.

Courts have ruled again and again that same-sex partners must be recognized as common-law couples, even if the law only refers to “a man and a woman who share a household” – as written in the succession law, for example – and in light of the need for an egalitarian interpretation of legislation to fulfill its goal.

The attorney general has also adopted this position since 2004, interpreting all laws that deal with social rights as applying to same-sex partners. The army is obliged to follow this interpretation, and Defense Minister Moshe Ya’alon clearly stressed as much last week.

Activists and lawyers from the LGBT community managed to get the laws to be interpreted in egalitarian fashion, but now, the people fighting for LGBT rights are serving up on a silver platter this gift to opponents of equality. They are adopting the conservative interpretation of the law, contradicting the position of the courts, the attorney general and the Israel Defense Forces. And they themselves are saying the law doesn’t recognize same-sex partners and doesn’t grant them equal rights. They are basically saying that if, heaven forbid, they should die during military service, their partners won’t enjoy equal rights.

The gay reservists’ fight may actually cause harm. We must consolidate the egalitarian legal position, and ensure that it’s recognized and implemented rigorously in the IDF. We also have to inform the LGBT community about this. Otherwise, a person needing these rights will read in a newspaper that those fighting in the name of the community say they’re not actually recognized by existing legislation and won’t know that they can demand them. Lawyers wishing to argue that we should deviate from the line this ruling has taken for many years will now be able to assert that community representatives themselves say the law doesn’t recognize them.

Some might say this is only interpretation and is liable to change. True, but Knesset legislation can change, too. You can hope for legislation that won’t leave room for doubt or interpretation, but the composition of the current Knesset isn’t very promising. So, for now, it’s preferable to shore up the egalitarian interpretation that was won, not to undermine it.

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