Discrimination in employment

The Case of S.Ç.:Discrimination in Employment

Source: Sosyal Politikalar, Cinsiyet Kimliği ve Cinsel Yönelim Çalışmaları Derneği. (Social Policies, Gender Identity, and Sexual Orientation Studies Association) LGBT Hak İhlalleri: Emsal Dava Analizleri (The Rights Violations Against LGBT People: Selected Case Analyses.) Istanbul: Punto Baskı Çözümleri, 2013. Available at: http://www.spod.org.tr/turkce/wp-content/uploads/2013/08/emsal-dava-analizleri-son1.pdf   

Subject of Investigation:

The stages of the investigation and whether these stages have been conducted according to the law and justice.

Scope of Investigation:

Istanbul Governorship Human Rights Commission Presidency investigation and Bakırköy Public Prosecutor’s Office Investigation No: 2011/6553.

Summary of the Event Before Investigation:

S.Ç. applied for a job at an institution named Media Monitoring Center and was called in for an interview by the responsible human resources department.

When the interview was completed, S.Ç. was told that he had all the necessary qualifications for the position. The authorized person at the human resources department representing the company congratulated him and gave him the list of necessary documents for employment.

While handing over the list, the authorized person asked S.Ç. why he had been exempted from his military service and S.Ç. told him that his sexual orientation exempted him.

The following day, the same person called him and told him that one of the managers of the company, Ms. Sevil, thought S.Ç.’s sexual orientation would cause problems among employees and therefore had to cancel his recruitment.

(more…)

The Case of F.E.:Termination of State Employment Based on Sexual Orientation

Source: Sosyal Politikalar, Cinsiyet Kimliği ve Cinsel Yönelim Çalışmaları Derneği. (Social Policies, Gender Identity, and Sexual Orientation Studies Association) LGBT Hak İhlalleri: Emsal Dava Analizleri (The Rights Violations Against LGBT People: Selected Case Analyses.) Istanbul: Punto Baskı Çözümleri, 2013. Available at: http://www.spod.org.tr/turkce/wp-content/uploads/2013/08/emsal-dava-analizleri-son1.pdf   

Subject of Investigation:

The case filed at the administrative court to annul the illegal decision by the Ministry of the Interior to terminate state employment and whether the trial was conducted according to the law and justice.

Scope of Investigation:

Istanbul Eighth Administrative Court 2009/476 E and Decision No: 2009/2242.

Summary of the Event Before Investigation:

F.E. passed his police exams in June 2006 and started working at the Security Branch Directorship of the Istanbul Police Department.

There was a tip off that he sexually abused children and committed obscenities and the investigation conducted led to a decision of non-prosecution.

In this period, he was psychologically pressured to resign but the discipline investigation within the institution continued. F.E. withdrew his resignation but it was not processed and the discipline investigation concluded with a decision to terminate his state employment. A suit was filed to annul this illegal decision with a motion to stay the implementation.

Pre-Trial Investigation and Prosecutorial Processes:

F.E.’s house was searched on 24.09.2007 after the tip that he sexually abused children and committed obscenities.

Though there was no warrant for the confiscation of his computer, it was confiscated instead of obtaining a back up. There is no record in the file that F.E. was reminded of his rights. Neither was there a person or a neighbor to sit with him during the search, which is against the laws of confiscation.

Though there was no evidence of child pornography during the search, the investigation of the crime of obscenity continued. In File No: 2007/167515 E., the Bakırköy Public Prosecutor’s Office made a decision of non-prosecution on 04.12.2008, Decision No: 2008/41285. The confiscated belongings were returned after the decision.

The Discipline Investigation by the Ministry of Interior’s High Discipline Board:

The process that started with the tip against F.E. continued with the discipline investigation by the Ministry of Interior’s High Discipline Board. The illegal search and confiscation were taken as grounds for this investigation.

The inspectors of the Ministry of Interior recommended that F.E. be punished with termination of state employment based the State Personnel Law No: 657 Article 125/E-g that states “engaging in shameful and embarrassing behaviors that are not befitting of someone within state employment.”

The discipline investigation claimed that during his employment at the Security Branch Directorship of the Istanbul Police Department, F.E. engaged in homosexual relations, had close relations with former sergeant, went to gay bars frequented by homosexuals, took part in gay/homosexual chats online, and sexual images and videos were found on his personal computer. His defense was requested in light of the State Personnel Law No: 657 Article 125/E-g that states engaging in shameful and embarrassing behaviors that are not befitting of someone with the title state employee, which is punishable by termination of state employment.

The discipline investigation concluded on 17.07.2008 with the Ministry of Interior’s High Discipline Board Decision No: 2008/44 giving a decision of termination of state employment.

F.E.’s Resignation During the Discipline Investigation: 

F.E. was psychologically pressured to resign on 24.09.2007 as it became impossible for him to work in the institution during the ongoing prosecutorial and discipline investigations.

On 05.10.2007, F.E. submitted a new petition to withdraw his resignation. With File No: B.05.1.EGM.0.71.02.04/173708 dated 23.10.2007, the Ministry of Interior’s Police Department remarked on the petition that his resignation and termination from 26.06.2007 onwards was accepted on 24.09.2007 on the basis of State Personnel Law No: 657 Article 94 (resignation).

The Case Filed at the Administrative Court to Annul the Termination of State Employment:

Following the conclusion of the discipline investigation and the decision to terminate F.E.’s state employment, a case was filed at the Istanbul Eighth Administrative Court under File No: 2009/476 E to annul this illegal termination with a motion to stay the implementation that would cause irrevocable damage.

The trial petition stated that the decision to expel from F.E from his profession violated Articles 8, 9, and 10 of the European Convention on Human Rights.

The punishment would prevent F.E., a master’s student at the Istanbul University Science Institute, from starting an academic career. Termination of state employment would also prevent him from going back to the  job he was going before passing the police exams, when he was working as a chemistry teacher.

The petition stated that the continuation of the discipline investigation despite his resignation and the decision to expel from him from the profession was against the law.

The Court first assessed the request for a stay motion but rejected it without providing reasoning. The objection to the rejection was also not accepted by the Court, again without providing reasoning.

Following the proceedings, the Istanbul Administrative Court rejected the suit by stating that no violation of regulations had been found under File No: 2009/476 and Decision No: 2009/2242.

In its reasoned decision, the Court stated, “…the plaintiff lived with two men who are deemed to be homosexual from time to time, went to a bar frequented by homosexuals with his boyfriends, unnatural pictures, texts, and photographs were stored in his computer along with natural pornographic images, the ceased computer revealed that using a nickname, he chatted online with people with homosexual tendencies and these chats had homosexual content, lived with a woman who left her home without permission even though she is an adult. Further, the sexual photographs from the ceased computer were analyzed and showed resemblances to a female police officer who was his colleague, and he had close relations with a sergeant who left the military in the Office of the Commander of Chief Air Force Command with a letter that expressed his homosexuality on 23 October 2007.

The Court stated, “…Given the investigation report and its addendum, the candidate police officer lived periodically with two homosexual persons documented by the health institute, possessed homosexual materials at home, frequented clubs where homosexuality continued, and at different times and locations met, talked with, and befriended people online and in person. These qualified actions are not befitting of someone within state employment and therefore, the punishment given to the plaintiff does not violate regulations,” and rejected the case.

The decision by the Administrative Court was appealed with a stay motion request.

The Council of State Twelfth Chamber File No: 2010/3201 discussed the request for a stay motion; despite the chamber president’s caveat, the request for a stay motion was denied with four members’ nay votes. The file is still at the Council of State and its appeal investigation has not been completed.

Conclusions on the Investigation and Observations

Both the defendant administration and the Court have arbitrarily interpreted the State Personnel Law No:  657 Article 125.

Homosexuality is not considered a crime in the Turkish Penal Code or in our other laws. When the administration chose to terminate F.E.’s state employment after the discipline investigation, it acted arbitrarily, illegally, and unjustly. The decision clearly violates the principle of proportionality.

The High Discipline Board and the Court’s definition of homosexuality as unnatural sexual intercourse, as an act that is shameful and embarrassing is against science, law, and justice.

The inspectors of the Ministry of Interior who led the discipline investigation and the Court judges who ruled in contradiction with the law have clearly violated the Constitution’s Article on Equality.

The discipline investigation against F.E. also violates the basic penal law principle of no punishment without law. Neither the State Personnel Law No: 657 nor any legal regulation define homosexuality as a disciplinary crime. Yet the High Discipline Board regarded homosexual relations as a shameful and embarrassing behavior not befitting of someone within state employment. The Court’s ratification of the punishment of termination of state employment shows that homosexuality is a shameful and embarrassing behavior not befitting of someone within state employment.

The punishment of termination of state employment and the ratification of this illegal decision by the Court also violated the international agreements Turkey is party to.

The European Convention on Human Rights Article 8 is the right to, and respect for, private and family life and private life includes a person’s sexual life and sexual orientation. The police and the Discipline Board’s investigation into F.E.’s sexual orientation and activities as well as the details of his encounters is a clear violation of the right to respect of his private life.

Even though our national law includes regulations on the prevention of discrimination, albeit insufficient and lacking in monitoring mechanisms, there are still plenty of regulations that can lead to discrimination. The expressions in  State Personnel Law No: 657 Article 125 that include, “behaviors and attitudes that are not befitting of someone within state employment,” “behaviors outside the bounds of general morality and manners,” “shameful and embarrassing behaviors,” and “dignity” are only a few examples of discriminatory regulations.

Discriminatory regulations must be determined through a comprehensive survey and must be amended to be consistent with international agreements.

Lawyer Özlem AYATA

The Case of Halil İbrahim Dinçdağ: Discrimination in Employment

Source: Sosyal Politikalar, Cinsiyet Kimliği ve Cinsel Yönelim Çalışmaları Derneği. (Social Policies, Gender Identity, and Sexual Orientation Studies Association) LGBT Hak İhlalleri: Emsal Dava Analizleri (The Rights Violations Against LGBT People: Selected Case Analyses.) Istanbul: Punto Baskı Çözümleri, 2013. Available at: http://www.spod.org.tr/turkce/wp-content/uploads/2013/08/emsal-dava-analizleri-son1.pdf                                                        

Subject of Investigation

The stages of the case and whether these stages have been conducted according to the law and justice.

Scope of Investigation

Istanbul 20th Civil Court of First Instance File No: 2010/399 E.

Procedures of Investigation

Halil İbrahim Dinçdağ was working as a football referee for 14 years as the Trabzon District Referee with license number 13117. He was performing the duties of his job in the 2008-2009 football season when the event occurred. Dinçdağ was shipped to the military on 13.10.2008 and took a break from his job. He was discharged for being unfit for military service on 28.01.2009.

Halil İbrahim Dinçdağ’s “unfit to serve in the military” report from the Gülhane Military Medical Academy (GATA) and his homosexuality was used as the reason for expelling him from the profession in 2009 when his referee license was taken from him. Furthermore, his identity and sexual orientation were revealed in a way that is against the law.

The process of the  “unfit to serve in the military” report:

On 16.08.2008, Halil İbrahim Dinçdağ applied to the Sivas Military Hospital Psychiatry Department and was treated as an in-patient there until 21.10.2008. On 21.10.2009, the hospital diagnosed Dinçdağ with “Depressive Disorder” and gave him a month sick leave. On 13.11.2008, Dinçdağ was shipped to the GATA Chief Doctor by the Trabzon Military Branch Presidency and was charged with the “crime of violation of sick leave” when he did not join his division. On 29.12.2008, Dinçdağ joined his division on his own.

On 06.01.2009, Halil İbrahim Dinçdağ reapplied to the Sivas Military Hospital Psychiatry Department and was an in-patient until 15.01.2009. He was diagnosed with “Psychosexual Disorder” and shipped to the GATA Psychiatry Department Presidency. The health board stated in their report that from 28.01.2009 on Dinçdağ will be considered “unfit to serve in the military but is fit to serve in the crime period of 22.11.2008- 29.12.2008.” In virtue of this report, on 06.04.2009 the Military Prosecutor of the Land Forces Command’s Sivas Fifth Training Brigade Command issued an indictment against Dinçdağ regarding “Violation of Sick Leave” and asked for him to be punished.

The investigation initiated by the military prosecutor began on 29.12.2010 and the Military Court of Appeals decided that Dinçdağ should get a ‘new unfit to serve’ report from GATA and resolve the deficiencies in the investigation, thereby overturning Decision No: 2010/2345 K with 2010/2356 E. However, on 19.04.2011 the Military Court of the Land Forces Command’s Sivas Fifth Training Brigade Command continued the hearings and Dinçdağ was shipped to the Kasımpaşa Military Hospital on 22.07.2011.

On 03.08.2011, the Kasımpaşa Military Hospital issued a report that Halil İbrahim Dinçdağ was unfit to serve in the military from 15.10.2008, when he started his military service, onwards. After this report, on 21.02.2012, the Military Court of the Land Forces Command’s Sivas Fifth Training Brigade Command ruled to acquit Halil İbrahim Dinçdağ.

Period before the suit and the material facts that caused the suit:

Halil İbrahim Dinçdağ went back to his work as District Referee after his “unfit to serve in the military report.” When the District Referee Board asked him to present the document that states he no longer has any attachments to the military, Dinçdağ applied to the Trabzon Military Branch. On 10.02.2009, the document, which includes the sentence “though no objection is present in terms of military processes, the obligant received an unfit to serve report on 28.01.2009”, was submitted to the District Referee Board.

After the report was submitted to the District Referee Board, Dinçdağ continued to serve as the district referee for 2.5 months and refereed the Trabzon Sports- Konak Municipality Women’s First League match on 01.03.2009. However, later Muhammet Öncü, a member of the District Referee Board, talked to Dinçdağ alone and told him that he will not be assigned any more matches and asked him to leave the referee profession.

After, Halil İbrahim Dinçdağ talked with Central Referee Regional Officer Tugay Güdü and explained the situation in detail. Dinçdağ told him that the reason why he was unfit to serve in the military was not because of a health reason, rather the report was for his sexual orientation making him exempt from military service. Tugay Güdü told him that he will discuss the situation with Central Referee Board and then later stated that he talked to the Board and that Dinçdağ can perform his duties as a referee with no problems. With this decision, Halil İbrahim Dinçdağ went back to joining trainings and educational workshops and was invited to the FUTSAL Referee Course in Istanbul and received his FUTSAL Referee Certificate.

Despite the circumstances, the District Referee Board stopped assigning matches to Dinçdağ. Dinçdağ talked to Tugay Güdü again who asked for his report. This report was reviewed by another member of the District Referee Board on the orders of a Central Referee Board member. After consulting doctors, Dinçdağ, Güdü, and the District Referee Board were told that the “psychosexual disorder” stated in the report is not a health problem. Yet despite all of this, the District Referee Board continued to not assign matches to Dinçdağ.

After every [football] season across Turkey, exams are conducted for District Referees and these exams shed light on the next season’s evaluations. Halil İbrahim Dinçdağ went to Trabzon Söğütlü Athletics Venue on 04.05.2009 to take the athletics test but was notified he could no longer serve as a referee and will therefore not be admitted to the exam. This notification came from a document dated 29.04.2009 which signed by the Central Referee Board and sent by the District Referee Board. The Central Referee Board rapporteur Osman Avcı signed this document. The document states that Dinçdağ was dismissed from the profession according to Article 25 of the Turkish Football Federation’s Central Referee Board’s Internal Directives on Entry Title Qualifications, License Renewals, Rules, Principles, and Regulations, which states, “People exempted from the military because of health problems cannot work as referee.” This was based on the Turkish General Staff Ankara Gülhane Medical Academy’s report that states, “unfit to serve in the military.” On 11.05.2009, Dinçdağ submitted his written objection to the Turkish Football Federation.

After this objection, on 13.05.2009 sports newspaper Fanatik columnist Hakan Can published an article entitled, “Gay Referee Want His Whistle Back.” On 14.05.2009, many news agencies, with the knowledge that the article referred to him, called Halil İbrahim Dinçdağ and asked for interviews. Dinçdağ insisted that it was not him but on 15.05.2009, Fatih Altaylı included the expression, “Trabzon District Referee H.İ.D.” in his column thereby making Halil İbrahim Dinçdağ’s private life was known to all from that moment on.

On 15.05.2009 the Turkish Football Federation made a statement about the issue on its website (www.tff.org.tr) and announced its amendment of internal directives, “People exempted from the military for reasons other than health problems can serve as referees.” But there was no response to Dinçdağ’s objection from 11.05.2009.

The Central Referee Board stated that all the District Referees who failed the exam could take a new exam and that Halil İbrahim Dinçdağ could also benefit from this right. When Dinçdağ asked them if he will be given the right to qualification levels, they told him that it was not possible that year. Their reasoning was the “age limit.”

  • Article 10/a of the Turkish Football Federation’s Central Referee Board’s Internal Directives on Entry Title Divisions, License Renewals, Rules, Principles, and Regulations puts the age limit at 33.
  • Article 10/b states that the referee must work continuously as a District Referee for 2 football seasons (excluding excused times) and referee at least 20 official amateur games.

Even though Dinçdağ fulfilled these conditions- he was 33 and had been working as a referee for fourteen years- the TFF terminated Dinçdağ’s employment as a referee due to discriminatory practices.

Before the court procedures, Halil İbrahim Dinçdağ petitioned the Turkish Football Federation on 01.11.2009 though his lawyer Yusuf Murat Söylemez. The document stated an objection to the decision that he could not serve as a referee, that the processes were illegal, that he was receiving an unjust treatment and demanded his rights to be reinstated. The Turkish Football Federation sent a response dated 17.11.2009, which stated “Halil İbrahim Dinçdağ is not employed because he did not get his license and he did not fulfill his right to the Athletic Test Run and Excuse as stated in the 23-2009/664-4664 District Referee Board Presidency letter from June 2009.” The same document stated that they were not informed about the 11.06.2009 petition or it being leaked to the public and there were no inquiries with the Turkish Football Federation about this issue.

Halil İbrahim Dinçdağ’s lawyer Yusuf Murat Söylemez responded to TFF’s comments on 03.02.2010. This petition stated;

  • The Central Referee Board’s letter from 04.05.2009 stated that Halil İbrahim Dinçdağ cannot serve as a referee because of an “unfit to serve in the military” report,
  • The report is not because of a health reason,
  • Dinçdağ is subjected to this treatment because of his sexual orientation,
  • The Athletic Run and Right to Excuse are being used as excuses,
  • This treatment is against Article 10 of the Constitution,
  • It is discrimination based on sexual orientation, which is against Article 14 of the European Convention on Human Rights (prohibiton of discrimination),
  • It is discrimination based on sexual orientation, which is against Article 8 of the European Convention on Human Rights (right to respect for private and family life) ,
  • The objection should be accepted.

The Trial Processes:

On 05.11.2010, a suit, File No: 2010/399 E, was filed at the Sarıyer Second Court of First Instance. The suit was filed against the Turkish Football Federation with a demand of 10,000.00 TL material damages and 10,000.00 TL damages for mental anguish. The trial petition stated arguments of discrimination and listed the above-mentioned points.

The response petition by the Turkish Football Federation stated;

  • Sexual disposition (meaning orientation) was not an issue in job assignments,
  • The TFF acts objectively without regarding differences such as language, religion, race or gender,
  • The Central Referee Board decided that he cannot be employed in matches based on Article 25 of the Turkish Football Federation’s Central Referee Board’s Internal Directives on Entry Title Qualifications, License Renewals, Rules, Principles, and Regulations which states, “People exempted from the military because of health problems cannot work as referees,”
  • This article was changed on 15.05.2009 with an announcement to “People exempted from the military for reasons other than health problems can serve as referees.”
  • The TFF believed that there was no problem with Halil İbrahim Dinçdağ  serving as a referee,
  • Halil İbrahim Dinçdağ did not take the tests for District Referees in 2009 or in 2010-2011.
  • This behavior stands in contrast to internal directives and he therefore will not been given any refereeing positions,
  • The plaintiff Halil İbrahim Dinçdağ has caused these problems with his own actions.

In the 1st hearing on 22.02.2011, the court took Halil İbrahim Dinçdağ’s information. Halil İbrahim Dinçdağ stated that he worked as a presenter for a Radio-TV program and that he was not given any employment after the press revealed his situation. The hearing was postponed until 31.05.2011.

At this stage, Halil İbrahim Dinçdağ’s lawyer Fırat Söyle presented the evidence list. At the same time, the defendant TFF’s response petition was answered with a response (replication) petition.

In the 2nd hearing on 31.05.2011, Halil İbrahim Dinçdağ’s social and economic situation was investigated. A warrant was written to the TFF Central Referee Board to demand the approved original letter dated 24.04.2009 from the Trabzon District Referee Board to the Central Referee Board regarding the plaintiff. The hearing was postponed until 20.10.2011.

At this point, Mustafa Başkan, Kadir Terzi, and Dursun Kemal Karacan came forward as witnesses for Halil İbrahim Dinçdağ.

In the 3rd hearing on 20.10.2011, the witnesses of the plaintiff were heard. Witness Dursun Kemal Karacan stated that he “knows Halil İbrahim Dinçdağ like a brother, after the press revealed the situation, Halil İbrahim Dinçdağ had to move to Istanbul and stay with me.” Furthermore he stated, “he was very upset about the news in the media, he was crushed, he was not given any responsibilities by the TFF after the news, he was suffering financially, he could not get any jobs after the news, he got by with help from relatives and friends.” The warrant to the Trabzon District Referee Board issued in the previous hearing was not answered and another warrant was demanded. At the same time, the statement of plaintiff witness Kadir Terzi was filed in the Trabzon Second Court of First Instance Letter Rogatory File 2011/42. Kadir Yılmaz stated, “Since his military report was leaked to the press, Halil İbrahim Dinçdağ has not been able to serve, his psychology has been disturbed, he has had financial and spiritual trouble, he has been ostracized from many places, humiliated and insulted.” The hearing was postponed until 07.02.2012.

In the 4th hearing on 07.02.2012, witnesses of the defendant were summoned. The hearing was postponed until 05.06.2012.

Meanwhile, the witness testimony of Turgay Güdü for the defendant TFF was taken at the Trabzon Second Court of First Instance Letter Rogatory File 2011/65. Turgay Güdü stated that:

  • He served on the Central Referee Board in 2008,
  • There was an instruction from the previous board that those who did not complete their military service could not serve as referees,
  • Each April, referees were put through performance evaluations,
  • Halil İbrahim Dinçdağ was a draft-dodger during that time,
  • This procedure was applied to him based on a 01.11.2006 letter from the Military Branch that stated Dinçdağ to be a draft-dodger,
  • This letter arrived on 03.04.2007,
  • Because Dinçdağ did not fulfill the requirements and the procedures regarding service the regulations relating to the inability to serve as a referee were therefore applied,
  • Halil İbrahim Dinçdağ’s psychology report from the Sivas Military Hospital had the “depressive diagnosis,”
  • The “unfit to serve in the military” report later stated that he had a “psychosexual disorder,”
  • With this report, the lawyers of the federation decided that Halil İbrahim Dinçdağ could not serve as a referee,
  • Halil İbrahim Dinçdağ was notified of this decision.

The witness testimony of Yusuf Yaylalı for the defendant TFF was also taken. Yusuf Yaylalı stated that:

  • He is a retired referee and worked as the President of the Trabzon Referee Commission when the events took place,
  • The instructions stated that those who are unfit for the military service could not serve as referees,
  • This instruction was later reorganized,
  • Halil İbrahim Dinçdağ was contacted via several methods but despite the written notifications, he did not submit the necessary documents and reports to continue refereeing,
  • This is why he did not join the courses,
  • The federation did not have a procedure on not allowing him to referee because of his sexual orientation,
  • This situation did not prevent him from refereeing.

In the 5th hearing on 05.06.2012, Mustafa Başkan, a witness of the defendant, waived his witness testimony. In this hearing, it was stated that the unfit to serve in the military report was sent to the TFF by Halil İbrahim Dinçdağ, this document was leaked to the press after this, this leak was not and could not have been caused by Halil İbrahim Dinçdağ. Furthermore, it was stated that Halil İbrahim Dinçdağ could not take the tests because there were no notifications telling him that he could take the tests, and that he used to serve in 4-5 matches each week in the district before the report was submitted. The court decided to issue a warrant to the TFF regarding the matches Halil İbrahim Dinçdağ served on previously and to investigate Halil İbrahim Dinçdağ’s social and economic situation. The hearing was postponed until 16.10.2012.

In this period, the warrant to the TFF was answered and stated that Halil İbrahim Dinçdağ did not serve in any matches between 23.07.2008 and 20.08.2008.

Halil İbrahim Dinçdağ’s lawyer Fırat Söyle objected this to document. Söyle stated that the document was insufficient, that Halil İbrahim Dinçdağ could not participate in matches because he was in the category of soldier between 13.10.2008 and 28.01.2009, that he could join a limited amount of matches in 2008-2009 because of military procedures, and that he was not given any matches after he was excused from the military.

In the 6th hearing on 16.10.2012, an expert report was requested. The hearing was postponed until 19.02.2013.

At this point, lawyer Olcay Yezdani who is a member of the Association for Supporting Contemporary Life Headquarters Administrative Board and a representative of the District Human Rights Board submitted an evaluation. This evaluation stated that, after Halil İbrahim Dinçdağ submitted his “unfit to serve in the military” report, the referee board rapporteur at the time was Osman Avcı, who wrote a letter on 29.04.2009 that did not allow Halil İbrahim Dinçdağ to take his exams, eradicated his chances to become a professional referee, and violated Dinçdağ’s rights by leaking his sexual orientation to the press.

In the 7th hearing on 19.02.2013, this report was added to the file. It was demanded that the report be passed on to the expert and the hearing was postponed until 21.05.2013.

Conclusions on the Investigation and Observations:

The Turkish Football Federation’s decision was clearly a homophobic one. The internal directives clearly state that those who are exempted from the military because of “health problems” cannot serve as referees. But Halil İbrahim Dinçdağ consciously chose to be exempted from the military because of his sexual orientation. It is a known fact that homosexuality as a sexual orientation is not a disease. Furthermore, there is an ethical problem in requiring that people who are unfit to serve in the military due to health reasons are barred from serving as referees. The requirements to serve in the military and as a referee are not the same.

What we see in the actual events is not a coincidence; it proves that “male homosexuality” has no place in a male dominated sector. Halil İbrahim Dinçdağ’s experience shows that discrimination and homophobic attitudes continue in the TFF and many other places. With the latest developments, we hope that the decision will result in Halil İbrahim Dinçdağ’s favor.

Lawyer Türker VATANSEVER

A SOCIAL ANALYSIS OF THE HALİL İBRAHİM DİNÇDAĞ CASE

Halil İbrahim Dinçdağ is a homosexual individual who has been serving as a football referee for 14 years. His life was turned upside down when someone leaked his sexual orientation to the press. But, even before this, the material causes that constitute the foundation of the suit against the Turkish Football Federation took place when his unfit to serve in the military report affected his professional life. A two-fold analysis is necessary for this case. The first consideration is of the Military Law and the relevant directives that evaluate homosexuality as a disease and its social reflections. The second is discrimination in work life or more specifically refusing to employ someone based on the person’s sexual orientation and gender identity, and terminating someone’s employment based on the person’s sexual orientation and gender identity.

Serving in the military is an important phenomenon in the patriarchal Turkish society. Though parts of society have recently started questioning it, military service is a precondition even in marriage, especially in Anatolia. This is also relevant in employment. Many businesses look for male candidates who have fulfilled their military services. The main reason for this is to avoid sending employees to long military services. An official document stating that the employee has no attachments to the military is requested. The problem in the Halil İbrahim Dinçdağ case starts here. The human resources department of a business investigte in depth when the document reveals exemption from the military because this report posits that the person has a serious physical or psychological health problem. If the person has a serious sickness, it can prevent their employment. The Military Law’s relevant articles deem homosexual orientations as a “psychosexual disorder” and exempt the person from the military. The problem here is that the state deems homosexuality a “sickness” within the military and this label on an official document follows the person throughout his life. We have all witnessed that the unfit to serve report is not sufficient on its own and the reasoning behind it is sought. The category “psychosexual behavioral disorder” includes homosexuality and all sexual anomalies that could be considered “sexual deviance.”

Halil İbrahim Dinçdağ’s main problem with the Football Federation’s Central Referee Board stems from this report. The Board investigated Dinçdağ’s willing exemption from the military and the report and in the process, discovered that a referee within their midst is a homosexual. Here is a dilemma that concerns all gay individuals. On the one hand, the organized gay movement carries an antimilitarist identity; no gay man wants to go to the military and fights for the right to conscientious objection. On the other hand, the only way for gay men to be exempted from the military is to unwillingly accept to label their sexual orientation as a “psychosexual behavioral disorder” and to accept the perception of their orientation as a sickness. In this way, gay individuals are cornered by the state. Every time the proposition “homosexuality is not a sickness” is put forward; the state will invite all gay men to the military. When seen from this perspective, if military service  continues to be mandatory, constitutional and legal regulations on conscientious objection must be urgently fulfilled.

The second aspect of the Halil İbrahim Dinçdağ case is that Dinçdağ has faced discrimination based on his sexual orientation within employment laws. The Federation’s Central Referee Board dismissed the referee when his sexual orientation became public. As the case documents reveal, the Football Federation amended its internal directive of “individuals who did not complete their military service because of being unfit to serve cannot serve as referees” but made sure the changes did not apply to Dinçdağ, who was the reason for the amendment. He was not notified of tests that were mandatory, he was excluded from matches, and all steps necessary to ostracize him from the community were taken adeptly. All of these stand in contrast to Article 14 of the European Convention on Human Rights.

The question that needs to be asked is this: what are the barriers people face in continuing their profession once their sexual orientation are revealed to the public? Though no legal impediments are visible, what are the reasons for the Federation to bar Dinçdağ? Most probably, the Central Referee Board contended that a gay referee could not be a part of a mostly heterosexist sport. They may have worried that the referee’s sexual orientation would be discussed at the end of matches where homosexuality is used as humiliation. However, the Board members are affected by similar fears and paranoia engrained in all branches of the state, just like the military is afraid that homosexuals would seduce heterosexual soldiers and disrupt military order and therefore exempt gay men from the military service.

We do not think the military or the Federation is capable of understanding the conditions of the changing world and of Turkey. Despite all the prejudices, when the comments on news websites at the time of the publication of Dinçdağ’s sexual orientation are viewed, the low number of negative remarks and the high number of supportive messages is clear. This society’s Internet users think that a referee’s management of the match is more important than his sexual orientation, as is the general trend in all things related to homosexuality.  Therefore, society is not interested in the private life of a person when they properly execute their profession. Mainstream media that tried to score points by creating sensational materials did not succeed in polarizing society. We will analyze the situation of the Football Federation after the judicial decision.

Lawyer Evren ÖZEN