In a precedent-setting ruling, the Regional Labor Court in Tel Aviv recognized the right of a man in a same-sex relationship to be recognized as a “homemaker” who is exempt from paying social security and health insurance, after the National Insurance Institute had claimed that this right should only be given to a woman. The court ruled in favor of the plaintiff, refunding payments he had previously paid to the National Insurance Institute in the past, but refrained from awarding compensation for discrimination on the grounds that they did not have the authority to do so.
The National Insurance Law defines a “housewife” as a woman who is married or recognized by Israel as being in a common-law marriage, whose spouse is insured by the National Insurance Institute, and who does not work herself either as an employee or as someone who is self-employed. The plaintiff Amir Hendel, and his partner Dvir Yariv, were recognized as a couple by the National Insurance Institute, Israel’s social security organization, in January 2018. Starting in March of that year, the two lived together while Hendel was not working. In February 2021, Hendel sent a request to the National Insurance Institute through their website, in which he asked: "Isn’t a homemaker whose spouse works entitled to an exemption from paying National Insurance fees?" In response, the National Insurance Institute replied that "only a housewife is exempt from payment, therefore you are obligated to pay this debt.”
Hendel paid his debt to the National Insurance Institute, but after legal advice, he petitioned the court through his lawyers Irit Ulman and Hagai Kalai, demanding that he be recognized as a homemaker, as well as submitting a claim for compensation for discrimination and the return of the money he had already paid.
During the proceedings, the National Insurance Institute claimed that the language behind the National Insurance Law is "clear and not ambiguous" and that the law explicitly and intentionally distinguishes between a man who does not work and is not self-employed and a woman who does not work and is not self-employed, and that this was "in clear and unequivocal language that does not allow for us to change what is the clear intent of its words."
The legal adviser to the government stated before the court that a previous petition to recognise a man in a same-sex relationship as a “homemaker” had in the past been rejected by the Supreme Court. Accordingly, she told the court that she had turned to the Minister of Social Affairs to instruct the professional authorities to conduct an examination of the issue in order to promote equality on this track. The legal advisor further argued that this is a constitutional issue and therefore the place to clarify this should be before the High Court of Justice and not before the Labor Court, a position that was also agreed upon by the National Insurance Institute.
"We accept the plaintiff's claim that the legislation was created around the institution of the 'housewife' in order to provide a 'social benefit' to the family unit where one of the spouses does the housework and does not enter the labor market," wrote Judge Idit Itzkovich. "At that time that it was written, it was mostly the woman who did the housework, so the law was written in the language of 'housewife' only. However, we believe that the existing legislative arrangement is based on outdated worldviews, and disadvantages a family unit that consists of two men. Within a legal system that advocates for equality, this gender discrimination between men and women seems puzzling. The benefits from the relevant social security laws should be granted to all family units, so that each couple will have the right to choose which one of the partners stays at home."
Judge Itzkovich also noted that the historical roots of the existing arrangement originated from the British welfare model, which was based on a worldview in which the man was the “breadwinner” for the family unit. She wrote: "The historical context makes it clear that the existing arrangement perpetuates patriarchal concepts that do not fit with the values of a society that seeks to promote equality between the sexes.
“We believe that in this case, the benefit cannot be categorically denied from a household that includes partners of the same-sex – in this case a male couple. As mentioned, the ruling repeats and states that the rights and obligations of the same-sex family unit must be compared to those of the 'traditional' family unit, according to which a family is made up of a partnership between a man and a woman. This is in view of the growing recognition of same-sex relationships."
The judge ruled that although section 238 of the National Insurance Law, concerning the exemption of housewives from paying social insurance and health insurance premiums, defines a housewife as a woman, it must be applied by way of interpretation to spouses who are both men, in the same way that the other provisions of the law already apply to “non-traditional” family units. The judge also pointed out that the Labor Court had previously ruled that in a case concerning two women who were a couple, and clarified that they have the right to choose which of the two will be defined as a housewife.
She wrote: "In light of the social changes that have taken place over the years with regard to the expansion of the definition of the family unit to include all its various forms, as well as in view of the importance of the principle of equality and the right to have a family life. The provision of the law must be interpreted in a way that does not discriminate against the different forms of family units or on the basis of sexual orientation. Therefore, we believe that in the case today, the provision of the law must be interpreted as also being applied in the case of spouses of the same sex – in this case a male couple."
As mentioned, the court recognized Hendel as a “homemaker” (assuming he meets the other conditions set out in the law) and determined that he will be entitled to be exempt from paying social security and healthcare fees, and will even receive a refund of payments to the amount of 7,000 shekels [$1905] for the payments he made in 2018-2021, as well as court costs for a total of 5,000 shekels [$1361]. The judge clarified that the Labor Courts Act authorizes them to hear claims related to the interpretation of the National Insurance Law. However, she clarified that awarding compensation for discrimination in his favor is not within the jurisdiction of the Labor Court.
The Israel Institute for Occupational Safety and Hygiene pointed out that this ruling still leaves room for gaps and inequalities.
They wrote in a statement: "The National Insurance Institute believes that the term 'housewife' and its attribution to only women is archaic and requires a change in legislation. Despite our attempts over the years to promote this issue, at the time of writing – the law has not changed. The ruling grants a unique right to same-sex couples, while a straight couple in which a man stays at home and the woman works, was ruled by the Supreme Court that he would not be recognized as a 'homemaker.' Here the judge of the Regional Court recognized just one type of family unit and created inequality between the various forms of family structures."
This article was translated from Hebrew by Rose Angela.
