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Legal recognition of transgender people in Turkey: will the court seize the historic opportunity?

A couple of months ago, a local court judge in Edirne filed a plea to the Court of Constitution of Turkey to revoke the compulsory sterilization requirement for the recognition of transgender people.

Police dispersed a group of around 50 people who wanted to stage a LGBT Trans Pride March on the afternoon of June 19, 2016, in Istanbul's Taksim Square and Istiklal street. Picture by Depo Photos/ABACA/PA Images. All rights reserved.The judge argued that in Edirne the compulsory sterilization requirement stated in the article 40 of the Turkish Civil Code regulating legal recognition of transgender people constitutes a human rights violation and therefore should be cancelled. The news quickly spread over the LGBTI community and NGOs that have been working for years to fight against this horrendous and unfair requirement and ultimately, they all rejoiced with the news when on June 14, the Court of Constitution decided to review the plea.

This constituted a late but nonetheless huge victory!

For long, precisely since 2002, the transgender community in Turkey has been subjected to unlawful limitations over their bodies and sexual reproductive rights which actually fall under the guarantee of the articles 17 and 20 of the Turkish Constitution and the article 8 of the European Convention on Human Rights that was signed in 1954 and ratified in 1990 by the Turkish State.

The famous article 40 of the Turkish Civil Code, titled ‘change of gender’ reads as follows:

Any person who wants to alter his or her sex, he or she may request to be given permission for alteration of gender by applying to the court in person. But the applicant must have completed the age of eighteen years, be unmarried, being transsexual by nature and must document indispensability of gender alteration in respect to his or her mental health and his or her permanent infertility through a report of a board of health provided from a medical education and research hospital. In case of confirmation through an official board of health report that a gender reassignment surgery has been undertaken, in conformity with the medical purpose and procedure and in parallel with given permission, the change of gender may be decided to be done as a required correction in civil status registers by the court’Compulsory sterilization was entered into force as a legal requirement under theDSP (Democratic Left Party) –MHP (Nationalist Movement Party) coalition government. It was the proposition of the infamous minister of justice at that time, Hikmet Sami Türk who comes to mind as the mastermind behind the ‘Hayata Dönüş operasyonu’ (operation for revival): when police raided prisons in order to forcefully end political hunger strikes in 2000. Many were killed as a result of the operation.

If one looks at the minutes of the Justice Commission of the Turkish National Grand Assembly at the time, it is eye-opening to see how MPs coming from very diverse political backgrounds and perspectives arrive at a consensus in order to fight against transsexuals/ travesties and ‘prostitution’ which are generally confounded in the minds of the political class. AIt is striking to notice that some famous figures of today’s Turkish political life like Nazlı Ilıcak, now in prison being accused of being member of the Fethullah Gulen movement accused of being behind the July 15th attempted coup in Turkey, and Mehmet Ali Sahin, former vice-president of AKP, defended exactly the same things when it comes to legal gender recognition of transgender people. They both supported the conservative position pushing for a more complicated process of transition claiming that otherwise people would easily be travesti and that otherwise the state would be encouraging people to engage in ‘prostitution’ which is ‘obviously against public morals and traditional family values in Turkey’.

On the other hand, it should be noted that not only in Turkey but also across Europe the sterilization or other types of surgeries are imposed as a requirement for the legal gender recognition for transgender people. According to Transgender Europe’s May 2017 statistics, there are 20 countries requiring sterilization for legal gender recognition in Europe.

However, thanks to tireless efforts of LGBTI and trans specific international and national NGOs, there has been also a trend towards the elimination of these types of surgery requirements. So far, Germany, Malta, Austria, Italy, Ukraine, Denmark and Sweden have considerably reformed their domestic legal mechanisms. Moreover, the European Court of Human Rights has recently held that the requirement to undergo sterilization or other medical treatment involving a very high probability of sterility in the context of legal gender recognition amounted to a violation of Article 8 of the European Convention on Human Rights.1

What makes the current situation in Turkey historic is that the Court of Constitution has also the power to review the constitutionality of gender reassignment obligation foreseen in the article 40 that was claimed unconstitutional in 2015 by an Ankara court on the ground that ‘forcing someone to any type of surgery is a violation of human rights’ in a pending case of a trans man who had completed each requirement but did not want to undertake a gender reassignment surgery as a result of his personal gender preference. The Court of Constitution has been reviewing this plea under the docket number 2016/71. A group of lawyers dealing with advancement of trans rights in Turkey submitted a very detailed amicus brief to the Court along with a comprehensive list of documents demonstrating why the gender reassignment surgery requirement should be abolished.

To conclude, the Court of Constitution has a unique chance to abolish these requirements and enables us to get through a new legal gender recognition process which is more humane, equal and prioritizing the personal preferences and needs of trans people like in Malta, Denmark or Argentina.

1 A.P., Garçon and Nicot v. France, nos. 79885/12, 52471/13 et 52596/13, 6 April 2017, 6 April 2017.


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