Critical deliberation on gender transition

The Constitutional Court (of Turkey) places on its upcoming agenda a petition to repeal Article 40 of Civil Code which requires that individuals undergoing gender transition be unable to reproduce.

Source: Hüseyin Şimşek, “Cinsiyet geçişinde kritik görüşme” (“Critical deliberation on gender reassignment”) BirGün, 31 January 2016, http://www.birgun.net/haber-detay/cinsiyet-gecisinde-kritik-gorusme-102380.html

The petition to repeal Article 40 of Civil Code, which concerns that an individual must be unable to reproduce if they are to go through sexual organ operation during their gender transition process, is expected to be placed on the Constitutional Court’s agenda in the upcoming days. Sinem Hun, the lawyer who submitted the petition, told the Turkish daily BirGün: “Trans individuals, with reproductive abilities, end up having to sterilize themselves in order to obtain the right to change the gender recorded on their ID card. This is a crime against humanity.”

Hun called attention to how the legislation acknowledges trans individuals under the title of “gender change” only after fulfilling the conditions imposed by Article 40. Hun highlighted the violation of human rights involved in this article, which requires an individual be deprived of the ability to reproduce in order to receive legal recognition and added that “Trans individuals who demand legal recognition end up having to resort to undergo sterilization. This is against the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as well as Article 17 of the Constitution.”

ECtHR too declared this a violation of rights.  

Hun stated that in the Y.Y. v. Turkey case on 10 March 2015, the European Court of Human Rights declared this situation a violation of rights, and emphasized that forcing individuals to go through sterilization is the equivalent of a crime against humanity. Hun added that the article also forces individuals to undergo sexual organ surgery, and that the legal recognition system in Turkey has to be updated in accordance with human rights. Hun mentioned that in Malta and Argentina, individuals are legally recognized based on their personal declaration; in Scandinavian countries there are observation periods; in Spain and the UK, committees for gender transition, adding that Turkey too can take up such approaches.

Morever, Hun explained that a team of ten lawyers specializing on gender transition prepared a joint report and presented it to Constitutional Court. In this report, they elaborate on each rights violation caused by Article 40 of Civil Code.

Editor’s Note: Please note that our translations are verbatim translations to accurately relay the original wording of the article. 

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