Source: Kaos GL, “Eşçinseller için Askerlik Broşürü: Eşcinseller ve Askerlik Sorunları ve Bu Konu ile İlgili Yasal Mevzuat,” (“Military Brochure for Homosexuals: The Problem of the Military and Homosexuality and the Legal Regulations,”) kaosGL.org, January 2013, http://www.kaosgldernegi.org/resim/yayin/dl/kaosgl_askerlik_brosuru.pdf
The Problem of the Military and Homosexuality and the Legal Regulations
The Call to the Military
According to Article 14 of the Military Code, the draft is the process of determining whether a person who has reached the age of military service is fit to serve in the military by checking their health, their education status, profession, and personal character.
Every October, the Ministry of Interior informs the Ministry of National Defense about the identification of people who have reached the age of military service.
The draft for people who reach the age of military service begins on 1 January every year and continues until the end of the summons and dispatch of that year’s soldiers.
The process begins when you are called to the military and declare your homosexuality to the command post you are attached to. Once you declare your intention to get a report, you are sent to the military hospital.
The health checks of persons to be drafted into the military are conducted according to the procedures and principles of the Turkish Armed Forces Health Capability Regulations. Articles 17/3, 17/3- D/4 of the Appendix of Diseases and Disorders of the aforementioned regulations define psychosexual disorder and advanced psychosexual disorder. According to these articles, the Turkish Armed Forces (TSK) considers homosexuality and transsexuality to be an illness. The regulation states, “For those who are to be considered within this clause, this situation must be determined by their field service questionnaire1 and official documents to see if their sexual behavioral disorders are known within the military and would lead to concerns.” The regulation further states, “For those to be considered within this clause; their sexual behavioral disorder must be obvious in an advanced way in all aspects of their lives and observations or official documents must determine that this creates or may create concerns in the military environment.” Due to the fact that the necessary documents or the report procedure to be followed are not clearly stated in the regulation, practices that are against the law may arise.
The military hospital’s health board is the only institution authorized to postpone service until the following year, to delay deployment or to recall a recruit who is unfit to serve according to a military health report.
All types of health board reports drawn up during the draft process are certified after confirmation from the Ministry of National Defense.
Primary care physicians, official civil health institutions or military hospitals cannot demand any fees or added value for health checks within Article 14 of the Military Law.
During the draft process, recruits are divided into those who are deemed fit to serve in the military and those who are deemed unfit to serve in the military. Those who are deemed unfit to serve in the military are not accepted into the military.
The Ministry of National Defense evaluates complaints, objections, and notifications regarding military procedures in the regional and branch recruitment offices and the reports issued by health institutions. The Ministry of National Defense investigates the veracity of the claims and whether or they are procedurally appropriate and takes action accordingly.
The State of Being a Draft-Evader
Those who evade the roll call are examined within the scope of Article 14 of the Military Law. The health checks are conducted according to the procedures and principles of the Turkish Armed Forces Health Capability Regulations. The abovementioned process is followed.
Article 86 of the Military Law:
“Those who do not go to their assigned military branch, embassy or consulate in the jurisdiction of their draft office and who do not submit a document that states a reason approved by this law, and who are caught or arrive on their own within the first summons and deployment dates until the last summons and deployment dates of their service that is the same across the country are to be examined by an official doctor at their location or at the nearest military hospital. Those who are determined to be fit to serve in the military according to the health assessment and who do not have the right to postpone are deployed immediately to the class and units assigned by the Ministry of National Defense. The provincial or district administrations may fine these persons 100 TL in administrative penalty fees.
Those who do not go to their assigned military branch, embassy or consulate in the jurisdiction of their draft office and who do not submit a document that states a reason approved by this law, and who do not surrender within the country within the dates between the first summons and deployment and the last summons and deployment of their call-up year are to be examined by an official doctor at their location or at the nearest military hospital when they are apprehended in order to serve in the military according to the results of the health assessment. In addition, those who do not have the right to postpone are to be deployed immediately to the class and units assigned by the Ministry of National Defense.”
The Period Before the Military Draft
If you do not want to serve in the military, you can ask for your exemption from the doctor when you go to the recruitment office. You can tell the doctor that you wish to meet with a psychiatrist and say that you cannot serve in the military because you are gay/bisexual.
The doctor at the recruitment office will direct you to the military hospital. At the military hospital, you usually meet one psychologist or psychiatrist at first. In the second phase, a group called the council, composed of a psychologist, psychiatrist, and a psychiatric nurse, meets you. If this group deems that you cannot serve in the military because you are a “homosexual,” they draft a report and send you to the military board.
The board may approve the report as it is. In general, the board approves the council’s report as is. However, if the board does not accept the report and drafts a report that states the draftee is fit to serve in the military instead, you can object to the report with a lawyer within seven days and get directed to another hospital to restart the above-mentioned process to try your luck in getting an exemption again.
In the military hospital you are sent to, you may encounter a situation where a fit to serve in the military report is issued without a single doctor’s health check. In this situation, you can object to the report at the institution that drafted the report or at the Health Directorship of the Ministry of National Defense within seven days.
If available, you should include your reports from the Ministry of Health’s Education and Research Hospital with your objection petition. After your objection, you may be sent to another military hospital or continue at the same hospital with the same board. In this timeframe, you will not be sent to the military until you receive the second report. If you receive a fit to serve in the military report for the second time, then the report is confirmed. The legal path to follow would then be to file a suit at the Military High Administrative Court for the annulment of the decision. When you file suit, you should request an “issue of stay order.”
If the second report you receive is an unfit to serve in the military report, you will be sent to a third hospital because of two contradictory reports. An unfit to serve report from the third hospital would finalize the unfit to serve decision. A fit to serve report from the third hospital would finalize the fit to serve decision and the path to follow would again be to file suit.
During Military Service
After you begin your service, you can tell your troop commander that you want to receive a report and the psychiatrist can decide to give you a sick leave or dispatch you to the military hospital.
Turkish Armed Forces Health Capability Regulations Article 8:
The last roll calls or other medical examinations of citizens with military obligations who reside outside of the country are conducted by health institutions or official doctors confirmed by the Republic of Turkey’s embassies or consulates in that country. The reports drafted after this examination are sent to the Ministry of National Defense after being approved by the embassy or consulate. The Information Form on the Health Condition of the Incumbent at Roll Calls is not used for those who reside outside of the country at the last roll call. However, the form is filled out for incumbents who need to be dispatched to military health institutions inside thecountry based on this article’s second paragraphs 3rd and 4th clauses before they are dispatched.
The Health Directorship of the Ministry of National Defense examines these reports;
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Reports that confirm, “fit to serve in the military” are sent to the military branch
the incumbent is attached to.
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Depending on the certifying authority, those who receive a report from official
health institutions outside of the country that state that they are too sick to return to the country or who have disturbances are either postponed to the next year or their dispatch is delayed.
- Reports that confirm “unfit to serve in the military” obtained through the proper methods via the embassies or consulates outside the country are examined by the Health Directorship of the Ministry of National Defense. The reports that are deemed suitable are approved and those that seem insufficient and suspect are not approved and the decision of “Dispatch to military hospital upon returning to the country” is filed for the incumbent.
- The objections to the reports obtained outside of the country are finalized according to the incumbent’s medical examination conducted by military health institutions inside the country.
The Period After Being Dispatched to the Military
The State of Exemption from the Military
The “unfit to serve in the military” report is related to the Turkish Armed Forces Health Capability Regulations and is a legal process that exempts the person from military duties. Therefore it is not a crime.
The “unfit to serve in the military” report does not openly state the articles and only states article numbers. If a person is curious and decides to investigate the reason someone received an “unfit to serve” report, it can be found out. However, the Turkish Armed Forces’ regulations are usually not binding in the civil world. Discrimination based on sexual orientation is a crime and if the “unfit to serve in the military” report is used against a person in this way, that institution would be committing a crime.
The Period after Exemption from the Military
Military and Employment
The most important issue after the military process is employment. Homosexual men have a harder time than other men with this issue. The most significant cause of this difficulty is the military status document demanded from men in employment as the most fundamental document. Military exemption stated in the document leads to questions about why the person has been exempted. There is no clear clause on the need for detailed information in legal regulations. However, businesses in the private sector conduct special interviews and choose based on their own criteria and the alteration of these choices according to the person or an institution often leads to the victimization of the applicant.
Not employing someone based on his sexual orientation is a discriminatory practice. “There is no article specifically about sexual orientation for state employees. However, the discipline articles in the State Personnel Law No: 657 and the discipline regulations of state institutions drafted according to this law that state “engaging in immoral behaviors that are not befitting of state employment” are often used against homosexuals.
State Personnel Law No: 657’s discipline punishments in Article 125 include actions and behaviors that;
A warning punishment when actions and situations include “attitudes and behaviors that do not befit state employees,”
A condemnation punishment when actions and situations include “behaving in contrast to general morality in location of duty and writing, singing, drawing or doing such things,”
A punishment of expulsion from state employment when actions include “engaging in shameful and embarrassing behaviors that are not befitting of someone within state employment,”
Are used against homosexual men.
Likewise, we see the same attitude in the disciplinary regulations that are based on this law. For example, the National Education Statutes’ Article 27 of “Law on the Promotion and Punishment of First and Middle School Teachers” includes the following clause for actions that would result in expulsion from the profession, “unchaste actions that are not befitting of the title teacher towards a student or in public,” which has been used against teachers upon discovering their homosexuality and these people have been expelled from the profession.
The Constitution’s Article 10 regulates the “Principle of Equality Before the Law.” Similarly, the Labor Law’s Article 5 regulates the “Principle of Equal Treatment.” Even though the articles do not include the terms “sexual orientation and gender identity,” the Supreme Court of Appeals has found discrimination based on sexual orientation to be against the law and has ruled in this way.
Turkey is party to the European Convention on Human Rights and several international treaties that prohibit discrimination.
Nevertheless, to ensure full legal protection, discrimination based on “sexual orientation and gender identity” must be clearly prohibited and the protection of LGBT individuals against rights violations should not be left up to the initiatives of the practitioners. Compulsory military service should be removed and the right to conscientious objection should be recognized.
1 The field survey questionnaires (Kıt’a Anket Formu) are forms that are filled out by the commanders of soldiers who apply to Psychiatry Units.