Supreme Court Rules in Favor of Transgender Woman’s Right to be Cremated Against the Wishes of Her Religious Family

A recent decision by the Israeli Supreme Court (CA 7918/15, Jane Doe v. Gal Friedman, November 24, 2015, available in translation here), in which the Court was called upon to determine whether a body could be cremated against the family’s wishes, affirmed one’s rights in death, but can also be seen as a vindication of identity rights. Though in the latter sense the decision could be a step in the right direction, it perhaps lacks the clarity necessary to fully protect the rights of those with marginalized identities.

Until her suicide in November 2015, May Peleg – a transgender woman – was a leader in the Jerusalem LGBT community. Upon coming out and transitioning, her ultra-Orthodox family cut ties with her. As early as March 2014, Peleg hired the services of a cremation company. In November 2015, she appointed an attorney to execute her will, as she suspected her family would object to her cremation. In the affidavit annexed to her will she explained that she rejected burial in general, and Jewish burial in particular, because Judaism did not recognize her as a woman. To Peleg, this violated her dignity and delegitimized her identity as a woman. She instructed that she be cremated and her ashes be scattered, with a small amount of them scattered around a tree to be planted in Jerusalem in her memory, where her children could visit.

Indeed, her mother objected to the cremation and wished to gain access to Peleg’s body in order to bury it (notably, the mother’s court documents in the District Court referred to Peleg as a man and used male pronouns.) The District Court ruled in favor of cremation, and the case ended up in the Supreme Court on the mother’s appeal several days later.

In rejecting the appeal and upholding the District Court’s decision, the Supreme Court made several analytical steps. First it analyzed the rights at hand: Peleg’s rights, even in death, to dignity and personal autonomy, against her family’s rights. Because the rights to dignity and autonomy are enshrined in Basic Law: Human Dignity and Liberty they hold the status of constitutional rights and trump the rights of the family. These do not expire at death, as “the core of the deceased’s right to dignity is [her] interests while still alive, and in protecting [her][1] dignity once [she] has passed. It is rooted in one’s legitimate expectation, while still alive, that [her] dignity, expectations, wishes and legacy would be protected and honored after [her] death.” The Court relied also on legislation around autopsies and wills to demonstrate that Israeli law recognizes the elevated status of the deceased’s dignity and autonomy over that of the deceased’s family. Next, the Court considered Peleg’s state of mind, and held she had the capacity to make decisions regarding her wishes. Based on written opinions by medical experts, the Court found her to have been deliberate and thoughtful in making her plans: she contracted with the cremation services a year and a half before her death and set up a memorial to ease her children’s grief. Lastly, the Court addressed Jewish and Israeli law in terms of burial and cremation. It concluded that although Jewish law required burial and Israeli law was based on Jewish law in this regard, the law did not preclude cremation. Indeed, the Court cited several prior decisions where it permitted cremation. In doing so, the Court followed precedents that rejected any prevailing public interest prohibiting cremation.

As the main rationale for the Court’s decision was Peleg’s dignity and autonomy rights, an important point missing from the decision in this context is worth highlighting. While these rights are certainly central to the Israeli constitutional system, regardless of the identity of the person in question, in the particular circumstances of this case they might merit further protection. We are not concerned here with just any deceased person whose wishes conflict with that of their family. At the center of this case is a trans woman, a member of a highly disadvantaged group, who was rejected by her family. Indeed, her family refused to recognize her gender identity or her dignity and autonomy in living according to it rather than to the sex assigned to her at birth.

I have written elsewhere on children’s interests in autonomy and self-determination in terms of their sexual orientation and gender identity, demonstrating that parental rights yield to these interests and arguing that the law must go further in protecting children from parental rejection because of their identities.[2] The same theory would apply to adult children – indeed, with greater force – who are fully autonomous legal entities and where parental rights are minimal, though as adults they may be less in need of positive protection from the State compared to their minor counterparts. Also, as opposed to American constitutional law, the Israeli system holds the right to dignity at its center, thus further supporting the idea that parental mistreatment based on the child’s identity cannot be tolerated by the State. So though the Court’s decision correctly privileges Peleg’s rights once they clashed head on with her family’s, it is silent on the social context of parental rejection of LGBT children. The Court would have done better – to the benefit of the LGBT community particularly but not exclusively – to send an explicit message to Israeli society that parents may not reject their children for who they are and then turn around and assert the enjoyment of any rights vis-à-vis their children.