The constitutional court’s changes to Article 40 are now in effect

The Constitutional Court annulled a clause in the Turkish Civil Code’s Article 40 stating the requirement of “to be permanently deprived of the ability to reproduce” on Nov. 29, 2017. The decision is now in effect with its publication in the Official Gazette on March 20.

Source: Pembe Hayat, “AYM’nin Madde 40’taki Değişikliği Yürürlüğe Girdi”, 20 March 2018, http://www.pembehayat.org/haberler.php?id=1681

A trans man launched a case in 2014 at the Ankara 4th Court of First Instance for a name change as well as his gender transition process. He requested that the court investigate the Turkish Civil Code Article 40’s “mandatory sterilization” as being unconstitutional, that this surgery was not successfully performed in Turkish state hospitals and successful experts charged exorbitant amounts, that there was lasting irreversible damage after the operation affecting bodily integrity.

The Constitutional Court committee examined the file and annulled the requirement “to be permanently deprived of the ability to reproduce” from the Turkish Civil Code’s Article 40 on Nov. 29, 2017.

That change has been put into effect as of March 20.

No requirement for infertility anymore

The annulment of Article 40’s Clause 1 stating “to be permanently deprived of the ability to reproduce” means sterilization will not be required in gender transition operations. However, Article 40’s Clause 2 stating “the court will rule for the necessary changes in the population registry after an official health council confirms that the gender change surgery was conducted” remains in the law after the push for its annulment was rejected on Nov. 29.

“The effect of this annulment may be joint indemnity cases.”

Attorney Sinem Hun said she finds the decision to be positive and told Pink Life:

Though we don’t yet know the reason for the annulment, it may be a reflection of European Court of Human Rights A.P., Nicot and Garcon decision. The effect of this annulment may be joint indemnity cases as we have also seen in Sweden. Injured parties and associations may consider action as this practice lasted between 2002 and 2017. Of course the legal techniques should be evaluated and I reserve comments on the issue of techniques for now.

“This article was contrary to the Constitution’s Articles 17 and 20”

Pink Life’s lawyer Emrah Sahin said this incommensurable condition will no longer be sought in gender transition and added:

We see this decision as positive because this clause was contrary to the Constitution’s Articles 17 and 20. This decision also reveals that. With the annulment of this clause, the state will no longer seek “permanently deprived of the ability to reproduce” in gender transition.

Turkish Civil Code’s Article 40

Turkish Civil Code’s Article 40 regulates the “procedure” on “gender change.” The changed article is:

A person wanting to change their gender may apply to a court in person to request the allowance of gender change. However, in order to be allowed [to do so], the person needs to have passed the age of 18 and be unmarried, and document, via an official health council report from an education and research hospital, that they are of transsexual disposition, that it’s necessary to undergo gender change for their psychological health. The court will rule for the necessary changes in the population registry if an official health council confirms that the gender change surgery was conducted in line with the goal and medical procedures dependent on the granted permission.

 

 

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.