Adv. Hagai Kalai
LGBT rights in Israel, contrary to the predominating myth, are a result of a common gradual process of the Knesset, the Government (particularly the Attorney General) and the courts. Since the cancellation of the ban of sodomy in 1988, a long process started, within which most laws and regulations that discriminated based on sexual tendency were cancelled. As elaborated below, today Israel has a general prohibition of discrimination concerning personal rights, and by law, LGBTs are entitled to the same rights as heterosexuals. Similarly, LGBT couples are entitled to all of the financial rights to which heterosexual couples are entitled. The main gaps that currently exist are concerning rights related to personal status and the family cell, such as adoption, surrogates and joint parenthood, transgender rights and the rights of Palestinian LGBTs who are not citizens of Israel.
Be Free activists protesting for Lesbians rights in Ramat Gan, Israel
Does Israel have a right to equality for LGBTs?
The right to equality for LGBTs in Israel was first recognized upon the passing of the amendment to the Equal Opportunities in Work Law in 1994, which prohibited discrimination based on sexual tendency. In the famous Danilovich Case1, the Supreme Court heard the scope of the prohibition of discrimination, and ruled that the discrimination against same-sex couples in any benefit given to couples in the workplace was prohibited. The Court was also divided in that case over whether the prohibition of discrimination was limited only to cases of discrimination at work, as the then President Barak stated, or whether there was a general prohibition of discrimination in Israeli law, as Justice Dorner held. This issue was resolved in the Open House Case2, in which it was ruled that prohibition of discrimination due to sexual tendency was a constitutional prohibition of discrimination, meaning that it applied to legislative acts and any action of a public body. Alongside this, the Prohibition of Discrimination in Products, Services and Entry to Public Places Law, 5761-2000 expanded the effect of the prohibition of discrimination to any privately owned place giving service to the public, such as a store, club or business. The Court ruled that this prohibition of discrimination supersedes any argument of inability to provide the service on religious grounds. Thus, it was ruled that a banquet hall managed by religious parties is not allowed not to provide services to lesbian couples3, it was ruled that a newspaper is not allowed to abstain from publishing a notice intended for the LGBT public due to the religious character of the newspaper,4 and so on. It was also ruled by the Supreme Court that the constitutional right to equality prohibits discrimination both based on sexual tendency and based on gender identity.5 Since the passing of the amendment to the Equal Opportunities in Work Law, many other legislative amendments have been passed prohibiting discrimination in different contexts, such as medical care (Amendment 4 to the Patient’s Rights Law, 5756-1996), the Employment Service Law (Amendment No. 20 to the Employment Service Law, 5719-1959) and others. These laws are mostly declarative, as in any case there is a general constitutional right to equality, and even without them the various bodies would not be allowed to discriminate on the account of sexual tendency or gender identity.
The bottom line is that today, any discrimination in the provision of service or allocation of financial or other rights based on sexual tendency (such as a mortgage and spouse benefits in the workplace) is strictly forbidden. Within this, LGBT couples have the same rights as heterosexual couples, including eligibility to be recognized for taxation purposes, for national insurance and other purposes. The prohibition of discrimination applies to public and private bodies alike.
Is denial of service or a right to a LGBT person permitted based on religious considerations?
Denial of service to a person due to sexual tendency or gender identity is strictly prohibited. A more complex question is whether it is possible to deny a person or couple a service owing to an action that may lead to discovery or uncovering of gender identity. In this context, the courts have restrictively interpreted the ability to deny the provision of service due to uncovering of gender identity or sexual tendency on religious grounds. Thus, as set forth, it has been ruled that a newspaper of religious character is not allowed to abstain from publishing a notice that is addressed to the gay community, and it was ruled that a banquet club of religious character is not allowed to abstain from holding events for same-sex couples.
Is it permissible to demand a person to conceal his or her sexual tendency or gender identity?
As a rule, it is not possible to demand within a workplace military service and other such settings to conceal a person’s sexual tendency or gender identity. In any case in which there is no general demand to abstain from revealing personal details of this type, demanding only LGBT individuals to conceal their sexual tendency or gender identity constitutes prohibited discrimination. However, in certain circumstances, all workers may be demanded not to reveal their sexual tendency or gender identity. To the extent that a demand of this type exists, and is not enforced equally (and in effect heterosexuals are not required to conceal their tendencies in practice), this is prohibited discrimination, and to the extent that the worker or service recipient can prove selective enforcement, they will be entitled to compensation by law, depending on the specific context. The most complicated question is whether a policy requiring concealment of sexual tendency or gender identity that is enforced uniformly is discriminatory. This question has arisen on more than one occasion in case law, in the context of an education job and revealing of transgender gender identity to learners in a coaching project program.6 The Labor Court was divided on this issue. Judge Itzkovich ruled that the concealment demand substantiated the argument of discrimination, whereas the public representatives in the court stated that systematic discrimination had not been proved and that in that case, the termination was due to the worker not having fulfilled her duty as required, rendering the discrimination argument moot. While this issue has not yet been ruled on in an orderly manner in case law, on principle, demanding an employee or service recipient to conceal an element of his identity, including sexual tendency or gender identity, is infringement of individual autonomy and will impose the burden on the employer to show that the concealment is required for the purpose of the work position. The judicial instance will balance between the properties of the specific function and the need for concealment, and the degree of concealment required (for example, there is a difference between a categorical demand for concealment of sexual tendency or gender identity and a demand prohibiting the hanging of pictures of couples in an office or flying a gay pride flag in the workplace).
Is there equality in all matters relating to personal and family status?
Unlike the outright ban on discrimination in the context of personal rights and financial rights of LGBT partners, there is discrimination in Israel against partners with regard to personal and family status.
Same sex couples are not allowed to marry in Israel, but their marriages overseas will be recognized in Israel, they will be registered in their identity cards as married, and they have equal rights for inheritance purposes,7 financial benefits, etc.
However, an Israeli partner is not entitled to a family reunification proceeding (the gradual proceeding) that is open to married heterosexuals (a five year proceeding that results in citizenship) and is required to undertake the gradual proceeding for common law spouses (which lasts seven years and results in residency). It is noted that a petition on the subject is currently pending at the Supreme Court,8 and that recently, the Minister of the Interior Gideon Sa’ar has ordered the recognition of same sex couples for the purposes of the Law of Return.9
Conversely, same sex couples are not recognized as partners for adoption purposes in Israel,10and the only adoption track that is open to them is that of a “single adopted”, which means that same sex partners will always be at the end of the adoption candidate list.
In addition, female same sex partners who beget a child into the family cell are required to undergo an adoption proceeding between the partners (the mother who has no genetic relation is required to adopt her children). The proceeding sometimes takes about two years, and results in a long period in which the non-genetic mother has no rights concerning the child. In cases in which the female partners separate before the proceeding is completed, or the proceeding is not completed for various reasons, the non-genetic mother is left with no rights over her children.
Moreover, same sex partners are not allowed to engage in surrogacy agreements in Israel, and despite the strong criticism that the Supreme Court has voiced against this discrimination, it has not yet been changed by legislation or case law. 11
In addition, until now the question of the possibility of recognizing joint parenthood of more than two parents has not yet been settled, despite the court ruling in a single case that this parenthood should be recognized for survivors’ allowance purposes.12
It is mentioned that there have been a number of previous cases in which the family courts have refused to help same sex couples, arguing that they did not constitute a family. However, these cases are rare today, and the Supreme Court has explicitly asserted that the LGBT family cell is a family cell for all purposes relating to proceedings in the family court. Similarly, there was a single case of the rabbinical court refusing to recognize a same sex partner within an inheritance division proceeding, and the petition is still pending in the Supreme Court.13
Alongside this, in cases of divorce of a heterosexual couple owing to one of the partners coming out of the closet, the LHBT partner often suffers from discriminatory treatment by the rabbinical courts. Although the Supreme Court has tentatively banned discriminatory treatment on the account of sexual tendency in divorce, custody and other such cases,14 the court still imposes in practice various restrictions on the LGBT partner’s contacts with his children.
Further to the foregoing, a dispute has arisen in the Supreme Court of whether the conditions that were prescribed for recognition of parenthood through surrogacy overseas are discriminatory on the account of sexual tendency. By a majority opinion of five against two dissenting, the court rejected the discrimination argument, although it disqualified some of the procedures for other reasons. Although the procedure for recognition of parenthood overseas is identical for heterosexuals and LGBTs who underwent surrogacy proceedings overseas, in practice, its effect on LGBTs is much greater. Besides this, the enforcement of the procedure against LGBTs is much stricter than against heterosexuals.15
The bottom line concerning conferring of status in Israel is that the State of Israel does not recognize LGBT marriages, but recognizes the status of common law spouses. Concerning parenthood, the State of Israel does not recognize any LGBT cell and considers the LGBT parent to be a single parent. In the context of adoption, this means that parenthood is almost impossible, and a surrogacy agreement cannot be executed in Israel. Besides this, female same sex partners are required to hold an adoption proceeding in cases of the child being born into the family cell.
Is there discrimination in healthcare services?
As set forth, the Patient’s Rights Law prohibits decimation on account of sexual tendency and gender identity in medical procedures. In practice, there are many cases of discrimination of this type. In addition, in many cases HIV carriers suffer from extremely severe discrimination, notwithstanding the prohibition of this discrimination in case law.16
A second plane of discrimination in healthcare services is that the healthcare services are adapted in the first place to the needs of the heterosexual population, and healthcare bodies are ill equipped to cope with the unique health needs of LGBTs. The institutional discrimination is particularly salient with regard to the lack of sufficient medical infrastructure for supporting the needs of transgender individuals, in everyday medical treatments and in sex change procedures. The sex change medical procedure, which has been recently updated, is based on a paternalistic concept that requires the transgender individual to “prove” his gender identity to a sex change operation approval committee before the operation is undertaken, while there is no equivalent demand in the case of cisgender individuals asking to have elective or other operations. In addition, the sex change procedure is only partially covered by the state (and most supplementary elective treatments are not covered by the Ministry of Health).
In addition, like in many other countries, there has been discrimination in Israel for many years against homosexuals in giving blood, and the blood bank does not accept blood from homosexuals. It is noted in this context that other options that will reduce the risk more effectively, such as not taking blood from persons who have unprotected sexual intercourse with persons who are not regular partners, have been rejected by the blood bank.
Is there discrimination of against transgender individuals in registration in official certificates?
The State of Israel now permits the changing of the sex clause in official certificates only after performing a sex change operation, and refuses to recognize transgender identity as long as no operation has been performed. In this context it is noted that many countries have changed the said requirement and make do with a self-declaration or a tempered requirement for an expert opinion of a professional concerning the individual’s gender identity, or have cancelled the sex clause in most official certificates.
Is there discrimination against LGBTs in the criminal proceeding?
LGBTs who are in criminal proceedings often suffer from violence from detainees and prisoners, as well as the law enforcement authorities. The police has no orderly plan for assisting LGBT inmates. Besides this, transgender prisoners are confined in isolation during their imprisonment, severely undermining their most basic human rights. The Supreme Court has criticized the procedure of isolating transgender prisoners in view of the resulting infringement to constitutional rights17, but to this day, no orderly proceeding has been formed for confining transgender prisoners in a manner that will allow them to be integrated in prisons.
Is there discrimination within the LGBT community?
The question of the presence of discrimination within the LGBT community has accompanied the community since its inception. There is no doubt as to the existence of actual discrimination against weaker parties in the community, women, bisexuals and transgender individuals. However, this argument of discrimination has never arisen in a legal proceeding. The only case in which a question of discrimination in intensity has arisen in a legal proceeding was concerning a tax point given to a mother. In that case, the question of whether it was proper for lesbian partners to receive two tax points, a heterosexual couple one point, and a male homosexual partner no tax credit points was heard. After the bill on the subject was dismissed, the Tax Authority ruled that one credit point would be given to each couple, irrespective of the partners’ sexes.18 This was despite the criticism against this policy, which effectively weakens lesbians and strengthens male homosexuals.
Are Palestinian LGBTs recognized in Israel?
No. The Convention Relating to the Status of Refugees requires recognition of refugee status due to persecution owing to sexual tendency or gender discrimination. However, to this day, the State of Israel has not recognized refugees on this account. Concretely, the State of Israel argues that the general exclusion of Palestinians that exists in the Convention Relating to the Status of Refugees also applies to cases of refugee status owing to sexual tendency and gender identity. This contravenes the position of the UN. In practice, many Palestinian LGBTs reside in Israel without status, in view of the fear of returning to the Palestinian
* The account above is a general description of the law and cannot serve as an alternative to receiving a legal expert opinion.
1 High Court of Justice 721/94 El Al Israel Airlines Ltd. v. Danilovich, District Court Compendium (5) 749 (1994).
2 Legal Council Appeal 343/09 Open House in Jerusalem for Pride and Tolerance v. Jerusalem Municipality (September 14, 2010).
3 Civil Case (Jerusalem ) 5901-09, Yaakovovich v. Yad Hashmona Guesthouse and Banquet Garden (September 3, 2012)
4 Civil Appeal (Tel Aviv) 35563-02-12 the Individual Rights Society, RA v. Makor Rishon Hameuchad (Hatzofeh) Ltd. (January 12, 2014).
5 Criminal Appeal 5833/12 Jane Doe v. State of Israel (September 12, 2013)
6 Labor Dispute (Tel Aviv) 791-06-13 Marina Mashal v. Educational Technology Center (May 13, 2014).
7 Civil Appeal (Nazareth) 3245/03 estate of the late S.R. v the Attorney General (published in Nevo, November 11, 2004).
8 High Court of Justice 2972/14 Andra Sheetreet Cornelius v. Ministry of the Interior (verdict pending)
9 See http://www.mako.co.il/pride-news/local/Article-d5cf0ce9a69c741004.htm
10 See the direction of the Attorney General and the procedure of the Ministry of Social Affairs http://www.justice.gov.il/MOJHeb/News/2008/imuz.htm;http://www.molsa. gov.il/Populations/Youth/Adoption/Families/Pages/MT01_02_03.aspx
11 See High Court of Justice 2458/01 New Family v. the Surrogacy Approval Committee, Ministry of Health, 57(1) 419 (2002), in which the Court discussed the severe discrimination embodied in the law, and High Court of Justice 1078/10 Pinkas v. the Surrogacy Approval Committee, Ministry of Health, (June 28, 2010), which was struck after the state announced the formation of a public committee for amending the law (it is noted that the writer participated in the team that prepared the petition of Itay Pinkas and Yoav Arad).
12 Family Appeal 41988-03-11 R.A. et al. v. the Benefits Officer (February 3, 2013).
13 High Court of Justice 1019/12 John Doe v. Jane Doe (verdict pending)
14 High Court of Justice 293/00 Jane Doe v. the Great Rabbinical Court in Jerusalem, Supreme Court Verdict 55(3) 318 (2000).
15 See High Court of Justice 566/11 Mamat-Magad v. Minister of the Interior (published in Nevo, January 28, 2014), and Hagai Kalai “Suspect parents – legal scrutiny and control of non-heteronormative families following High Court of Justice case 566/11 Mamat-Magad v. Minister of the Interior” Mivzakei Hearot Psika 28, 5 (2014).
16 See for example: Adi Niv Yeguda “Shattering the HIV stigma – and human rights: lesson of the verdict in Family Case 43071-13 A.M. v. A.G.” Mivzakei Hearot Psika 27, 5 (2014).
17 Criminal Appeal 5833/12 Jane Doe v. State of Israel (September 12, 2013)
18 See directions for assessment officers on credit points for children of same sex couples - here
Authority territories. Some of them are able to gain refugee status in third countries through human rights organizations.19