Politicians on Sunday both lauded and condemned the High Court of Justice's ruling allowing same-sex couples surrogacy rights in Israel. "It's a historic day for the Israeli LGBTQ community and for Israeli society as a whole," said Meretz leader Health Minister Nitzan Horowitz while Shas leader MK Aryeh Deri decried it as "a grave blow to the state's Jewish identity."
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Horowitz and Deri disagree about the High Court's ruling but they are in complete agreement about the fact that in Israel today, the courts are the main instrument for advancing the LGBTQ community's interests – something Horowitz sees as a positive development and Deri as a negative one.
The situation until today, where surrogacy was forbidden for male couples, was an expression of homophobic discrimination and was therefore unacceptable. Correcting this unacceptable discrimination and advancing that cause of equality could have been pursued in two ways: by allowing male couples surrogacy rights, as the High Court ruled, or by forbidding commercial surrogacy entirely. I believe the latter has more advantages than disadvantages, and that the time has come for the LGBTQ community to be more open to parental models that are not based on turning pregnancy into a tradable commodity that harms women, such as adoption or co-parenting.
Opinions advocating for and against commercial surrogacy continue to be heard and create a lively debate both within the gay community and between it and its political opponents. An equally important question, however, has been pushed sidelined by this debate: do the courts really need to be the main arena used in the struggle to change the reality of anti-LGBTQ discrimination?
It is extremely worrying to see the political situation in which the LGBTQ community has found itself for many years, where the path to expanding LGBTQ rights runs mostly through precedent-setting High Court rulings, instead of the more noble path of seeking political change through Knesset legislation and government decisions.
There's no need for private individuals or civil society organizations to give up on legal petitions in the hope that the judges will rule in their favor. That is a legitimate and necessary tactic that has and will continue to yield achievements. But it's wrong to look at legal petitions as the main way to effect change. In order to achieve change, we need to ensure that a majority of the public supports our positions, and to translate this majority into a political force to be reckoned with. For example: by creating a situation where most lawmakers understand that not endorsing pro-LGBTQ legislation will come with a price.
That's not the situation at present. Even when public opinion is broadly in favor of eradicating discrimination in the workplace and in housing, and supports marriage equality, this support is not reflected inside political institutions. In 2014, the Knesset approved an amendment to the Student Rights Act, forbidding discrimination on account of sexual orientation or gender identity. Since passing this law, sponsored by then-Hadash MK Dov Khenin, the Knesset has not passed a single piece of pro-LGBTQ legislation. Seven years – and not a single bill has been passed.
Relying on High Court petitions risks the creation of a "public bypass route." In this way, the LGBTQ community has come to believe that it's possible to achieve equality despite the society in which we live, instead of thanks to and through the society in which we live. I already see that there are some in the LGBTQ community who prefer we skip the task of persuasion and change and make do with litigation or lobbying.
Pushing the liberation of the LGBTQ community from discrimination and oppression forwads leaves no alternative to creating organizations, frameworks, groups and movements that will work in the public arena in order to shape public opinion, to educate, to persuade, to influence, to protest, and to build strength.
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Historically, every major social liberation movement knew how to do this. The struggle 100 years ago for women's right to vote included the mass mobilization of women (back then they weren't really called "feminists"), and the struggle in America for the rights of African-Americans didn't rely on court rulings alone, but on community organization, political protest, and building mass movements.
Similarly, the struggle for LGBTQ rights in Israel needs to be a political struggle. We have to do it ourselves, through persuading and building a majority inside our society, or it won't happen at all.
Uri Weltmann is an LGBTQ rights activist and the national field organizer at Standing Together, a Jewish-Arab grassroots movement.
