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
The Social Policies, Gender Identity and Sexual Orientation Studies Association has been working in the field of access to law and justice since it was founded two years ago. We have organized educational workshops on LGBT rights for lawyers in order to strengthen LGBT people’s methods of accessing justice. We have also given legal aid to LGBT people whose rights have been violated. Our other work includes tracking legislation, participating in the New Constitution drafting process, and pursuing selected cases.
This report includes case summaries and analyses of SPoD’s selected cases. The selection has been made according to the LGBT public’s key issues. Cases based on the frequent violations of LGBT people’s right to life, work, and housing have been chosen. Emphasis has been placed on joining cases as joint plaintiffs while working with lawyers, NGOs, and the Grand National Assembly of Turkey (TBMM) for positive results. Furthermore, the media has been lobbied for the selected cases to ensure the flow of correct and effective information to the public and to make sure that victims are not doubly victimized by the media’s homophobic/transphobic language. A legal battle has been waged against the “hate language” produced by the media in general. Therefore, we did not focus solely on the legal aspects of the cases but also on their background in order to change the biases that lead to rights violations.
LGBT people are justifiably worried about being exposed to violations of their rights, which also occurs while trying to achieve justice for the rights violations they had already encountered because of their sexual orientation and gender identity. One of the causes of these worries is the attitudes of lawyers towards LGBT people and their rights in the legal system. In fact, the trauma of the original violation can be retriggered by the attitude, approach, and mentality of the lawyer. With the aim of curbing the prevalent homophobic and transphobic attitudes of legal professionals, SPoD carried out three educational workshops for 80 lawyers from 16 cities in 2012 and 2013. Academics and lawyers who focus on LGBT cases discussed precedents in LGBT rights violations based on the precedents set by the European Court of Human Rights (ECtHR). A reference book based on the ECtHR, Supreme Court of Appeals, and Council of State precedents was compiled for lawyers who did not participate in the workshops. This report compared precedents of the Supreme Court with ECtHR precedents and examined LGBT rights within the context of homophobic and transphobic judicial practices.
It is obvious that LGBT people exist in all walks of life and engage in judicial relations even though it can be argued that the law in Turkey ignores LGBT people and tries to make them invisible. A person’s sexual orientation and gender identity often complicate the legal relations between an individual and the state, with the result that the courts often victimize LGBT people. The legislations’ neglect of different sexual identities or its disregard of the international legal term, “sexual minorities,” intensifies this victimization. Being excluded from “protection” against discriminatory treatment, LGBT people are left defenseless or to the mercy, moral attitude, and conscience of the legal practitioner. The attitudes of the judges and prosecutors in LGBT cases can be observed throughout this report. That the results of legal practices with homophobic and transphobic attitudes shaped by the hetero-patriarchal system, based on “general morality, public order, and public safety,” rather than rights,are obvious. Concrete examples of intensifying rather than lessening the harm done to victims of discrimination can be seen in the reasons provided by the courts when they reject the requests of LGBT associations to join cases as joint plaintiffs, and give penalty reductions on the basis of “unjust provocation” in violations of the right to life, reductions that in fact reward the killer. Therefore, the state “participates” in the rights violations against LGBT people by ignoring LGBT people in the oppressor-oppressed relationship and by positioning itself with the oppressor through the continuation of a system that leaves LGBT people to the practitioner’s “morals” and “mercy.”
Our goal is to develop practices based on the 2004 amendment to the constitution’s Article 90 until more concrete legal arrangements are made. This amendment has given international covenants on human rights precedence over national laws, and therefore has given these covenants an “a priori” character. However, in practice, this amendment is ignored when the Supreme Court rule on these decisions.
In light of all this, the LGBT movement is currently debating whether the law is a support or an impediment in the struggle for social justice and the demand for equal rights. Law, or rather positive law, is sexual orientation and gender identity blind. For this reason, a set of constitutional and legal amendments is necessary to decrease rights violations and to prevent and/or resolve LGBT victimization. SPoD and other LGBT rights associations are in an excellent position to draft these statutes and to present policy suggestions to policy makers. Our hope is to get constitutional and legal status and guarantees for LGBT people, and to achieve a decrease in cases on rights violations and discrimination against LGBT people.
SPoD Access to Law and Justice Coordinator
To access the full report: