The social networks of Israel's LGBT community celebrated a victory last week when the Labor, Social Affairs and Social Services Ministry told the High Court of Justice that it doesn’t object to adoption by same-sex couples. It was a celebration of a social protest that ostensibly brought about a change in the position of professionals and politicians on this issue. But the community was celebrating a false victory.
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The ministry’s previous position on the petition in question had been a clear, unequivocal “No.” Its new position is “Yes, but” – that is, we will allow same-sex parents to adopt children, but only after the existing legislation is amended. The ministry still objects to any change imposed by the court, and in effect continues to argue that there’s nothing wrong with its current approach, according to which there is a ranking for parents who wish to adopt: straights on top, non-straights on the bottom.
The meaning of “Yes, but,” is simply “No” in disguise.
The Social Affairs Ministry, headed by Haim Katz, and the state prosecution know very well what agreeing to change while insisting it-be-done-only-via-legislation means. In this Knesset, which isn’t enamored of LGBTs, to say the least, an amendment allowing same-sex adoption will never pass.
What will happen following the ministry's declaration is that the court will ask for legislation to be drawn up, and one of the following scenarios will ensue: The case will be withdrawn by the petitioners, the case will be denied, or it will remain pending for several months (or even years), to be revisited if the amendment to the law is not completed.
This method has been successfully used by the government in the past. In two different instances in which the Surrogacy Law was challenged for being discriminatory against single people and same-sex couples, the Supreme Court accepted the argument that an amendment to existing legislation was needed. In one case the petition was denied; in the second it remains hanging, waiting for the legislature to act.
Moreover, just recently the High Court denied a petition to allow LGBT couples to marry in Israel, on grounds that unlike issues related to social, welfare and economic rights, which the court will deal with – anything relating to marriage is the sole purview of the lawmaker.
But the real sophistication of the “Yes, but” approach is that the focus of the discussion is diverted. Suddenly the problem is with the law, not with the ministry’s approach. Indeed, there is a problem with the law as its written, which was identified by the High Court in the Yaros-Hakak case, in which it was determined that a woman could adopt the children of her female partner. In addition, as a result of this ruling, then-Attorney General Menachem Mazuz instructed the Social Affairs Ministry that same-sex couples could adopt – but only as individuals, not couples.
The problem is that the current petition being considered by the High Court is not based on the wording of the law per se, but on the approach of the Social Affairs Ministry, which ranks potential adoptive parents and distinguishes between a straight couple and a gay one.
Even if we were to accept the ministry’s approach that the problem does not lie in the procedural realm but in the wording of the law – this isn’t a new or unique problem. Courts have already ruled in the past that when the law mentions “a man and a woman,” or “husband and wife,” these terms should be interpreted as “a couple,” and that includes couples of the same gender. That’s what was used, for example, in the context of the Inheritance Law and the Property Tax and Compensation Law.
Interpretations don’t need legislative amendments. Interpretations can be made now either by officials in the Social Affairs Ministry, or by the attorney general or the High Court of Justice imposing them on the ministry. Either of those entities can decide that the Adoption Law can be interpreted to permit same-sex couples to adopt children as couples, not just as individuals.
When that happens, the LGBT community will have good reason to celebrate. Meanwhile, there’s no sense celebrating a “No” that’s masquerading as a “Yes.”
The writer is an attorney and doctoral student in law at the University of Toronto.