Lawyers continue to evaluate Constitutional Court verdicts regarding gender transitioning. Demir, an attorney, suggests that “ ‘Being deprived of the ability to procreate’ is no longer required but the ID card change necessitates a surgery in any case. The Constitutional Court is only concerned with public order”. Kara, also an attorney says that public order is perceived in this case as the imposition of the binary gender regime and that “court rulings can not be based on speculations”.

 

Source: “The Turkish Constitutional Court is concerned about public order, not the well-being of trans individuals!” (“AYM’nin kaygısı transların sağlığı değil kamu düzeni!”), Yıldız Tar, kaosgl.org, March 21, 2018,  http://kaosgl.org/sayfa.php?id=25388

Lawyers continue to evaluate Constitutional Court’s two seperate rulings regarding Article 40 of Civil Code which regulates the gender transitioning process. [Translator’s note: Article 40 regulates the requirements to have a person’s gender changed legally in civil registry, which necessitates a gender reassignment surgery. See this article for background information.]

The Constitutional Court (AYM) has abolished the requirement to “be deprived of the ability to procreate” in order to gain “the permission for gender reassignment surgery”. Regarding the requirement to have surgery in order to change the records in the state registry the court stated “[It] is necessary for public order, the process has to be regulated by the state”.

But what do these rulings mean? Attorneys Hatice Demir and Hayriye Karar interpreted the rulings for KaosGL.

Rights violations will continue as long as “the requirement to have surgery” remains!

Demir states that the abolishment of the requirement “to be deprived of ability to procreate” is good news yet the rights violations will continue as long as the requirement to “have surgery compliant with medical purpose and methods” to have registry records changed remains:

“A trans subject files a lawsuit to ‘be granted the permission to have gender reassignment surgery’ after using hormones for approximately 6 months under medical supervision. The law stipulates four conditions for this lawsuit to be approved: Being unmarried, being over 18, a health council report and being deprived of the ability to procreate. Among the new conditions, only the requirement to be ‘deprived of the ability to procreate’ is removed.”

What happens at court?

The law had stipulated that “a person cannot become ‘permanently deprived of the ability to procreate’ by using hormones. A person can continue to ‘be able to procreate’ after stopping the use of hormones, under ordinary circumstances.

To briefly summarize the situation as it used to be: You had to undergo surgery in order to be permanently deprived of the ability to procreate yet you had to prove that you are ’deprived of the ability to procreate’ to undergo that very same surgery. Under these rules many cases were being rejected. We had a very difficult time explaining this to the judges.

The Constitutional Court did not recognise this issue as a conflict within the law but has acted to resolve it. What this ruling says is ‘We already have the requirement for a surgery to have the registry changed on the second clause of Article 40 of Civil Code. We don’t need to create an obligation through a condition on the first clause of the same article.’ “

The ruling is due to the fact that court permission does not ‘directly affect the registry’!

Demir emphasizes that the Constitutional Court gave the ruling due to the fact that it does not regard the court order for gender transitioning as an “issue which directly affects the public space and registry”: “When you get a court permission to go ahead with the gender transitioning, you can’t just apply to the Civil Registry.  The Constitutional Court abolished the requirement to ‘be deprived of the ability to procreate’ as the change in registry is already dependent on the surgery on the second clause of Article 40”.

Trans individuals are still seen as marginals

Demir defines the Constitutional Court’s ruling for the requirement for surgery in order for someone to change their gender in the civil registry as a “horrible verdict” and added:

“The fact that the ruling persistently uses the concept of biological gender and that this biological gender can be changed ‘only in exceptional cases’ show that the Constitutional Court regards transsexuality as a marginal identity. The text repeatedly uses the words ‘exceptional’, ‘biological gender’… The ruling explains the subjection of the transitioning process to state regulation based on it being ‘irrevocable’ and involving ‘health risks’. Yet what we can gather from the rest of the text and its conclusion, the Constitutional Court is concerned only with public order and social welfare, not with the physical and psychological health of trans subjects.”

The attitude of the higher courts has not changed over the last 30 years

Demir stresses that the Constitutional Court is claiming that ‘a change in the registry without surgery will disrupt the public order’ in its ruling and says “The most horrifying part of the ruling is that it states the risk that such change will bring the possibility for an ‘unjust benefit for trans individuals from legal regulations which aim to protect women”.

Demir reminds us that 30 years ago the first Court of Cassation rulings regarding the gender transitioning in Turkey had phrases such as “what if men change their gender to avoid mandatory military service” and says that “30 years have passed yet the approach of our higher courts has not changed at all”.

Binary gender regime is accepted as public order

The attorney Hayriye Kara draws attention to the fact that ‘being deprived of the ability to procreate’ is not required anymore  because the rights and obligations of Turkish citizens are based on ‘biological gender’. Kara states that the vote against the ruling for the “correction of the gender slot on civil registry records” is important:

“The vote notes take the demands of people’s struggle into consideration. Yet if we set these notes aside, the reasoning of the verdict is horrifying. It clearly states that the imposed binary gender regime is the public order. The ruling in sum suggests ‘gender is defined by biological and physiological features as well as the physical appearance; rights and obligations are defined by this gender’. It means to say that ‘ People have a right to change their gender but their affirmed gender is recognized legally only after they obtain the defined masculine and feminine physical qualities after completing surgery’. The psycho-social dimension of the gender is not even discussed. The line of reasoning which justifies all sorts of state intervention on individual bodies to protect the binary gender was once more confirmed.
Courts can not base their rulings on speculation!

Kara criticized the dependence of legal recognition on surgical operation and stated: “The court claims that legal recognition and a correction of genders without surgery might be ‘abused, rights reserved for women can be used and people might avoid certain obligations [i.e mandatory military service]’. There is no ground for the allegation of ‘abusing gender transitioning to enjoy rights and to avoid obligations’. This is clearly speculative. Courts can not base their rulings on speculation. This is a hypothetical incident. What kind of data does the Constitutional Court base its presumption? If the court actually checked the data, it would have recognized the intervention as against the right to live and the bodily integrity of the trans individuals in Turkey.  There is institutional discrimination against trans individuals. There is no state protection against domestic and social violence against trans people. The ruling has no discussion of these facts yet states [gender transitioning without surgery] might be ‘abused’. This is speculative. It is horrifying and unlawful.”

Regarding a similar case, Constitutional Court Deputy Chair Engin Yıldırım’s note attached to his vote against the Martial Penal Code, Kara said: “This is an important text which follows the latest developments in international law. It is also remarkable that six judges including Yıldırım, have voted favourably towards LGBTI individuals. Yet the ruling of the court means othering is officialized”