Human Rights

Turkish Consitutional Court to review Gender Reassignment Law

Monday, February 1, 2016

The Turkish Constitutional Court will review the country’s Article 40/2 which enforces trans people to undergo gender reassignment surgery for legal recognition of their gender identity.

Istanbul Pride in 2014

Turkey’s Gender Reassignment Law is expected to be revised in February as a court case regarding the legal recognition of gender identity has been taken to the Constitutional Court for violating the Turkish Consitution and European Convention on Human Rights.

In a country where every citizen carries either a blue or pink ID card signifying their gender assigned at birth, trans people have a hard time enjoying their fundamental rights in their true gender. Having your gender changed on your ID or other documents means you have to undergo gender reassignment surgery, hence confrontation with the notorious Article 40 of the Turkish Civil Code.

What does Article 40 require?

Article 40 of the Turkish Civil Code stipulates that a court permission must be obtained in order to undergo gender reassignment surgery. According to the article, the permission can only be given if the person is over 18 and unmarried, if the person has obtained official medical board reports to prove that the operation is psychologically needed and that the ability to reproduce is permanently lost.

In the case to be reviewed in the Constitutional Court, a trans man in Ankara claimed for an ID change, providing all the requirements of Article 40 except for phalloplasty. The applicant’s lawyer, Sinem Hun, appealed the court, stating that Article 40 violates the Turkish Constitution’s Article 17 on the ground of physical integrity and the European Convention on Human Rights’ Article 8 on the ground of right to a private and family life.

A new judge, a new perspective

The claim for legal change of gender identity has seen 4 trials before a new judge in the case accepted Hun’s appeal to take the case to the Constitutional Court. Sinem Hun, a human rights lawyer focusing on trans transitioning, explains the lack of standard for gender identity cases in Turkey:

Sinem Hun

“The court permission for gender reassignment is very much dependent on the worldview of judge establishing the decision. It also matters whether the case takes place in a city or in a country. It even matters if the transitioning is from male to female or female to male. It is known that the status of applicant’s family also has an influence on the decision.”  

“ECtHR decision tells Turkey the direction it should take”

Hun and 10 other lawyers prepared a legal report known as amicus curiae to inform the Constituional Court about how Article 40 affects trans people’s education, social and working life negatively, and blocks their right to family. Hun states that such reports are not common in the Turkish legal system and theirs is the first detailed report on Article 40.

In March 2015, the European Court of Human Rights held that Turkey was to pay a trans man, who could not get court permission needed for gender reassignment surgery, 7,500 Euros. However, the ECtHR decisions influence only the file the court evaluates, not the ones in similar cases.

Turkish capital brings in gendered transportation tickets!

“Lives of trans people in Turkey is being hardened each day,” says Alican Kalan from trans self-organization Pink Life Association in Ankara. As Ankara Metropolitan Municipality started using a gendered system for public transportation, each time you use your electronic ticket, a machine announces your gender as registered officially.

Alican Kalan

“This situation clearly is a violation against privacy and human honor. Trans people are being exposed within this machine system which calls out their names according to their legal ID registration. Thus, it becomes even more difficult for a trans person to use public transportation system in Ankara”.

If the Constitutional Court finds Article 40/2 unconstitutional, trans community in Turkey will enjoy a suprising legal victory in the midst of the ruling Justice and Development Party’s (AKP) ever-increasing pressure on freedoms and rights.

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