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

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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.

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
.

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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