Yasemin Öz, “LGBT Bireylere Yönelik Ayrımcılık ve Nefret Konusunda Gerçekleştirilmesi Gereken Temel Yasal Düzenlemeler,” (“Legal Regulations Needed to Prevent Discrimination and Hatred Towards LGBT People in Turkey,”) Turkish Policy Quarterly “Women’s Rights and LGBT Freedoms in Turkey” Presentation on 06 November 2013.
- The regulations concerning LGBT people are limited in the Turkish judicial system. Even though homosexuality, bisexuality, transvestism, transsexualism are non-incriminating in the law, there are no regulations on the subject. Law makers choose to leave a legal loophole by not passing regulations. Nevertheless, there are limited positive and negative arrangements concerning LGBT people. There are also clauses that do not refer to sexual orientation directly but that can be used positively.
- There is no specific regulation in the Turkish law concerning discrimination. Even though there are some regulations in the Constitution and in several statutes, discrimination based on sexual orientation and gender identity is not explicitly prohibited. Nevertheless, the clauses that regulate the prohibition of discrimination do not limit the areas of the ban on discrimination. The ban on discrimination is organized in a way that is not explicitly listed in laws but can be understood by drawing similarities.
- It is observed that the regulations concerning “general morality” in the law is used in a way that creates discrimination against LGBT individuals by deeming the LGBT community “immoral.” Therefore, the ambiguous term “morality” must be clearly defined in order to prevent discrimination against LGBT people.
- The Prime Ministerial Board for the Protection of Children from Harmful Publications found a book regarding homosexuality harmful and decided the book was liable to the limitations that are specified in Article 4 of Law No: 1117.
- To summarize the justification of the decision; “In the book homosexual relations, which are not approved by most of the Turkish society, are depicted; the homosexual relationship, which is not normal according to the moral values and general customs of the Turkish society is praised and this situation would harm the sexual development of children.”
- The terms included in the law, such as “morality,” “virtue,” “solemnity,” “manners,” “infamy” are not defined in a palpable way and the boundaries of these arrangements are not specified.
- This loophole in the regulations leaves interpretation up to the courts. The negative social attitude towards LGBT people is then reflected as discriminatory practices in court decisions.
- For example; the Malatya Administrative Court’s Case No: 2001/913 and Decision No: 2002/534 states, “…no breach of law has been demonstrated in the punishment of the plaintiff by being removed from state employment after it was revealed that he had homosexual intercourse with someone he knows and committed a disciplinary crime.”
- Police officer H.O.E.’s “removal from state employment is based on 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.’”
- The decision of the local court was approved by the Council of State’s Twelfth Chamber Case No: 2002/4332 Decision No: 2005/480. Plaintiff H.O.E.’s request to appeal was rejected.
- Because discrimination against LGBT people is not prohibited by law and discretionary power belongs to judges or administrations, LGBT people can be deemed “immoral” and be prevented from exercising their fundamental rights and freedoms. When the clauses regulating the prohibition of discrimination are examined, whether these regulations contain the prohibition of discrimination against LGBT people must be questioned.
- Principal national legal regulations concerning the prohibition of discrimination are below;
- Article 10 of the Constitution
- Article 122 of the Turkish Penal Code
- Article 5 of the Labor Law
- In terms of international regulations, Article 14 of the European Convention on Human Rights, which is deemed to have the force of law according to Article 90 of the Constitution, imposes sanctions against the violation of rights when the violation is caused by discrimination. Moreover, discrimination based on sexual orientation and gender identity is prohibited by the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, which is also called the Istanbul Convention.
Articles Regulating the Prohibition of Discrimination
- Equality before the law:
- Article 10- All individuals are equal without any discrimination before the law, irrespective of language, race, color, gender, political opinion, philosophical belief, religion and sect, or any such considerations.
In this article, the clause “and such considerations” can be interpreted in a positive way that embodies discrimination against sexual orientation and gender identity. However, in order to prevent discrimination on the basis of sexual orientation and gender identity, adding the terms, “sexual orientation and gender identity” to Article 10 will allow individuals to fully benefit from this protection.
- Article 122- (1) Anyone who practices discrimination on grounds of language, race, color, sex, disability, political ideas, philosophical beliefs, religion, sect or any such grounds; by
a) Preventing the sale or transfer of personal property or real estate or the performance or enjoyment of a service or who makes the employment of a person contingent on one of the conditions listed above
b) Withholds foodstuffs or refuses to provide a service supplied to the public,
c) Prevents a person from carrying out ordinary economic activity shall be sentenced to imprisonment for a term of six months to one year or a judicial fine.
- In this article, the clause “and such considerations” again can be interpreted as embodying discrimination based on sexual orientation and gender identity. However, since criminal law cannot consider an act a crime if it is not clearly defined, a broad interpretation of the content of this article justifies “a crime without law” and this situation is not an acceptable approach to the criminal justice system. Accordingly, in order to prevent discrimination based on sexual orientation and gender identity, adding the terms “sexual orientation and gender identity” to Article 122 will enable homosexual, bisexual, and trans individuals to benefit from this protection.
- Equal Treatment Principle
- Article 5. No discrimination based on language, race, sex, political opinion, philosophical belief, religion and sex or similar reasons is permissible in the case of employment.
In this article, the clause “or similar reasons” can be interpreted in a positive way that embodies discrimination based on sexual orientation and gender identity. However, in order to prevent discrimination on the basis of sexual orientation and gender identity, adding the terms, “sexual orientation and gender identity” to Article 5 will allow individuals to fully benefit from this protection.
- In Turkey, court decisions that concern LGBT individuals are usually about cases related to LGBT rights organizations’ freedom of association and expression. This is because in cases of discrimination, LGBT individuals feel reluctant to resort to the judiciary for fear of being exposed. Since discrimination against LGBT individuals can appear in all areas of life, court cases range from employment discrimination lawsuits to hate crime lawsuits, guardianship lawsuits to lawsuits related to the violation of the freedom of expression.
- The only codified law that directly discriminates LGBT individuals is related to military service.
The Turkish Armed Forces Health Ability Regulations
- Article 17- (Appendix 7/1/2002-2002/3627 K.; Alternative Article: 06/12/2004 – 2004/8202 Health Regulations/Article 36):
- Psychosexual Disorders
DESCRIPTION: Those who will meet this clause; sexual behavior disorders will engender drawbacks in the military environment, and that this situation needs to be determined by a questionnaire or with official documents.
- Advanced Psychosexual Disorders
DESCRIPTION: Those who will meet this clause; sexual behavioral disorders are highly explicit in all areas of the person’s life, and the fact that this situation creates or will create a drawback in the military environment needs to be determined by observation or with official documents.
- This regulation openly defines homosexuality, transvestism, and transsexuality as an illness and prevents these individuals from taking part in the military system. The Turkish military psychiatry, instead of adopting the DSM-V criteria of the internationally affirmed American Psychological Association (APA), embraces APA’s DSM-II criteria and considers homosexuality, transvestism, and transsexuality as disorders. However, the APA removed homosexuality, transvestism, and transsexuality from the DSM-II list in 1974, and then published the DSM-III, DSM-IV and DSM-V criteria. The aforementioned regulation is based on a practice that has been abandoned by psychiatry since 1974 and it explicitly includes a discriminatory practice against GBT individuals. Revising the existing regulation and changing it to meet the DSM-V criteria will both bring this regulation up to international standards and prevent discrimination against GBT individuals.
- In short, the fact that discrimination against LGBT individuals is not regulated in the law, resulting in the absence of court decisions, makes it difficult to identify discrimination. The European Court of Human Rights is the only reference guide concerning this subject.
EUROPEAN COURT OF HUMAN RIGHTS DECISIONS
- In the case of Salgueiro Da Silva Mouta v. Portugal (21 December 1999, Application No: 33290/96, paragraph 34-36), the applicant claimed that he was discriminated against because of his sexual orientation in a decision made by the national court regarding child custody. The ECtHR delivered the following judgments:
- […] The Court of Appeal then took account of the fact that the applicant was a homosexual and was living with another man in observing that “The child should live in … a traditional Portuguese family” and that “It is not our task here to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations” (ibid.).
- It is the Court’s view that the above passages from the judgment in question, far from being merely clumsy or unfortunate as the Government maintained, or mere obiter dicta, suggest, quite to the contrary, that the applicant’s homosexuality was a factor which was decisive in the final decision. That conclusion is supported by the fact that the Court of Appeal, when ruling on the applicant’s right to contact, warned him not to adopt conduct which might make the child realise that her father was living with another man “in conditions resembling those of man and wife” (ibid.).
- The Court is therefore forced to find, in the light of the foregone evidence, that the Court of Appeal made a distinction based on considerations regarding the applicant’s sexual orientation, a distinction which is not acceptable under the Convention (see, mutatis mutandis, the Hoffmann judgment cited above, p. 60, § 36).
- The Court cannot therefore find that a reasonable relationship of proportionality existed between the means employed and the aim pursued; there has accordingly been a violation of Article 8 taken in conjunction with Article 14.
- In the judgment of the case of P.G. and J.H. v. The United Kingdom (25 September 2001, Application No: 44787/98, paragraph 56-60), the Court made the following summary and thereby banned discrimination based on sexual orientation: “Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by Article 8 (see, for example, B. v. France, judgment of 25 March 1992, Series A no. 232-C, pp. 53-54, § 63; Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 28, § 24; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41; and Laskey, Jaggard and Brown v. the United Kingdom, judgment of 19 February 1997, Reports 1997-1, p. 131, § 36). Article 8 also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45). It may include activities of a professional or business nature (see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp. 33-34, § 29, and Halford, cited above, p. 1016, § 44). There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”.”
- National and international legislation as well as court judgments have not reached a level that would ensure an end to the discrimination of LGBT people. Turkey must set in motion legislation on discrimination in order for disadvantaged groups, like LGBTs, to benefit from the principle of equality.
- The most significant difficulty LGBT people face in cases of discrimination is the legitimization of discrimination and the lack of sanctions.
- Furthermore, there is no comprehensive legislation regarding hate crimes in Turkey, even though the last democracy package claimed as such. LGBT people are among the groups that are most targeted by hate crimes. Therefore, legislation that includes the hate crimes against LGBT people are needed.
- Wishing for a world where there is no hate or discrimination…