Law & Politics

Judicial and political environment in Turkey on LGBTI issues

Governorship of Adana bans the Pride March

The Adana Governorship has banned the first-to-be Pride March with the alleged justifications of “public safety”and “social sensitivity”.

Source: “Governorship of Adana bans the Pride March” (“Adana Valiliği, Onur Yürüyüşü’nü yasakladı”), kaosgl.org, July 6, 2018, http://kaosgl.org/sayfa.php?id=26222.

The Adana Governorship has banned the Pride March that was supposed to take place tomorrow [7th of June]. The first march planned by the Adana LGBTI+ Solidarity has been banned by the Adana Governorship due to the supposed threats to public safety and social sensitivity.

The governorship in the official proclamation of the ban has stated:

“…[It was determined that ] this event which is to take place in an open space will incite hatred and hostility amongst a section of the public  with different characteristics in terms of social class, race, religion, sect or region against another part of society, that this might lead to imminent peril with regards to public security, that considering the intel regarding the terrorist groups preparing to act against opposing groups, that there may be reactions and provocations against the groups and individuals taking part in the organization due to certain social sensibilities and thus is not appropriate to take place”

There will be a press release

Adana LGBTI+ Solidarity has decided to have a press release tomorrow [7th of June] at 17.00 in the Adana Human Rights Association after the ban has been issued. The press release will cover the process regarding the ban and cancellation process of the first to be pride march of Adana with the theme “ban”.

Yeni Akit has targeted the Solidarity

Meanwhile, the Yeni Akit Gazette has targeted the Adana Pride March with their article titled “Mobil Homos are after provocation.”  After the gazette’s prior attack and call for a “ban” on the Istanbul LGBTI+ Pride March, the Adana Governorship has banned the Adana Pride March.

 

Governorship of Ankara’s decision to ban the film screening of ‘Pride’

Source: Ankara Valiliği, “Yasaklama Kararına İlişkin Basın Duyurusu”, June 28, 2018, http://www.ankara.gov.tr/yasaklama-kararina-iliskin-basin-duyurusu-28062018

“Through social media, various print and visual media outlets, it has come to our attention that Komunist LGBT (lesbian, gay, bisexual and transsexual) is organizing a film screening of ‘Pride’ at Nazım Hikmet Cultural Center in Çankaya at 19:30 on June 28, 2018.

It was decided that the aforementioned social media shares might deliberately incite a certain segment of society with different characteristics of social class, race, religion, sect or region against another segment of society, that this might lead to imminent peril with regards to public security, that considering the intel regarding the terrorist groups preparing to act against opposing groups, that there may be reactions and provocations against the groups and individuals taking part in the organization due to certain social sensibilities.

Due to these circumstances, from June 28 onwards the film screening at Nazım Hikmet Cultural Center in Çankaya district, and within the scope of our city is banned by our Governorship, based on Article 11/C of the Law Of Provincial Administration, No 5442, within the scope of measures to be taken for the provision of peace, security, right to physical integrity and the public order, following Article 17 of Law No. 2911 on Assembly and Demonstration Marches and Article 11/F of Law No. 2935 on the State of Emergency.”

 

SPoD LGBTI statement after attack on office

On 26.06.2018, at around 21:30, during a volunteer meeting about training on STIs planned to take place in our office, someone knocked on our door. When our volunteers asked who it was the person behind the door replied “We know [name withheld] is in there, give them up!” Our volunteers did not open the door and told the people that there was no such person at the office and that they did not know this person, after which the people started punching the door, swearing at and threatening our volunteers. Our volunteers immediately called the police and the board members of our association.

The person behind the door insulted and threatened our volunteers saying: “I have my friends waiting downstairs, I will wait until you open up, you will come out eventually. It doesn’t matter if you call the police” and “I will catch you, all of you pimps, I will look everywhere, I know … is in there, if … comes out of there I will ruin you! I know you are keeping … in there.”

After this the attacker continued banging on the door. Meanwhile, the police arrived at the scene and started banging on the door together with the attacker. Our volunteers at the office did not open the door as they were not sure that those arriving were the police, nevertheless they asked them to take the attacker away.

At that moment, the police started shouting and asking questions outside their authority such as “What association is this! Who is there, why are you hiding?” and saying, “I will call the Directorate of Associations, aren’t you man enough to come out!”, “Are you afraid of one man?”. Our volunteer who had been communicating with the people behind the door refused to open the door saying, “Obviously you will not help us.” Despite our volunteers’ call to the police, the officers stood by the attackers who were violent and threatening. Another officer who arrived later at the scene said, “We are under state of emergency rule, we can break the door and enter!” and “Look fellas, we heard that someone is in there, I have to take the family’s complaint seriously.”

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Hasan Atik: “I will represent our demand to live as equal citizens”

Hasan Atik, an LGBTI+ rights advocate running for a seat in the Turkish Parliament as the 4th candidate on the ballot list from the People’s Democratic Party answered Kaos GL’s questions.

Source: “Hasan Atik: ‘I will represent our demand to live as equal citizens’ “ (Hasan Atik: “Eşit yurttaşlık temelinde yaşam talebimizi dile getireceğim”), Yıldız Tar, kaosgl.org, May 27,2018, http://kaosgl.org/sayfa.php?id=25904

How did you decide to become a candidate? Was your candidacy as a gay politician in HDP supported?

I have assumed duties in various levels of HDP. In every position I have worked in complete harmony with my party and my colleagues. HDP exists in all colors. When I decided to apply for the candidacy, my fellow party members supported me both at the centre of the party and in local branches and they continue to support me.

You are running for a seat in the parliament from a place which will not elect you. Yet, as far as we know, you are the only open gay candidate. What are your plans for the election campaigns?

It was my request to be a candidate from Edirne. I believe I can be more beneficial for my party in Edirne. No member of HDP is in this election just for a seat, we care about our party. I will continue rights advocacy during the election campaign. I will continue to work for equal citizenship not only for one identity but for all identities. For me, my candidacy is not a means to an end but the end itself; the aim for equal and free citizenship for all peoples of Turkey.

Unfortunately, we live in a country where LGBTI+ rights are not maintained. As an MP candidate, what are your demands regarding the LGBTI+ rights?

Our most urgent demand is the right to live. Equal citizenship, freedom, equality in access to accommodation and employment are also among are demands. I will fight for the legal recognition of hate crime. I will be a strong defender for our demand to live not underdiscrimination but under equal citizenship.

Aside from LGBTI+ rights advocacy, you also advocate  for HIV/AIDS related rights and give counseling on the matter. How will you carry this struggle of yours to political arena?

HIV/AIDS is a pressing matter in Turkey. The state does not have a preventive approach, aside from providing treatment. We will first fight to have sexual health training in the national education syllabi. Then we will educate the society against HIV-phobia. We will fight against stigmatization and discrimination, which are dominant tendencies in Turkey.

Our purpose is to ensure that the Turkish state belongs to everyone living inside our borders. We aim to govern this country by sharing our authority with all segments of the society, all peoples of Turkey. Together, we will rebuild Turkey into a more democratic and livable country. We will win.

 

“This judge’s conduct is against the law!”

On May 7th, a judge shared a petition for a gender transition lawsuit submitted to his court on his social media accounts and mocked the applicant. Pink Life Association filed a complaint to the Council of Judges and Prosecutors (HSK) about the incident.

Source: “This judge’s conduct is against the law!” (“Hakimin Bu Eylemi Suç ve İlkelere Aykırıdır!”), Pembe Hayat, May, 11, 2018, http://www.pembehayat.org/haberler.php?id=1747

On May 10th Emrah Şahin, the lawyer for Pink Life Association, filed a complaint against the judge who published a petition submitted to his court on Instagram and ridiculed the applicant. Şahin states that such conduct of the judge is not only criminal but also goes against the Bangalore Principles of Judicial Conduct, the Law for Judges and Prosecutors as well as the Principles of Ethical Conduct for Public Servants:

“Such social media posts by a judge who should be protecting the principles of equality, impartiality and integrity, not only weakens the faith of our citizens in the impartiality of the justice system but also hurts their dignity and pride. Therefore as Pink Life Association, we filed a complaint to the Council of Judges and Prosecutors about this judge regarding his actions which are not fit with the profession and dignity of of the profession.”

Şahin also suggests that the judge should be investigated and believes that public servants in the judiciary harm LGBTI+ individual’s faith in the Turkish justice system :

“The judiciary system has a crucial importance for the perpetuity of the state, it is required to treat all citizens equally. This requirement is not an ideal or a wish but a rule, warranted by international conventions, our Constitution and regulations alike.  These ugly posts shared on a personal social media account of a member of the judiciary is detrimental to the society as well as to other judges and prosecutors who are loyal to their duties.”

“If this judge is sentenced because of our complaint, it will be a step forward in ensuring that such incidents will not be repeated.”

“The Turkish Constitutional Court is concerned about public order, not the well-being of trans individuals!”

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”

 

Trans activist Demhat Aksoy on hunger strike to protest her conditions as an asylum seeker in Sweden

Demhat Aksoy, a trans woman activist who has recently moved to Sweden seeking asylum, has started a hunger strike to draw attention to her living conditions as an asylum seeker. We are sharing her message below, explaining why she has chose to strike. 

 

“This is a ‘ Hunger Strike ‘ text
Hello, I am Demhat, a trans-woman.
I have migrated to Sweden because my life was in danger and I wanted to have a more peaceful life. Transphobia, harassment and violence was part of my daily life, so though one does not get used to those- I know them well. However, here is one more thing that I have to re-encounter here in Sweden which is called racism.

By all means, the problem is not only racism. If you are a refugee in the asylum process, you are only allowed an isolated life barred from society, away from urban settings. Maybe that is kind of a life most of us could not find; you are settled to a flat, you are given money for the food. What about socialization, social cohesion or work, don’t we need them as well? But there is no place for any of these in the asylum process. There is no limit to ‘waiting’, no definite timing. Some waits for 8 months, some waits for 2 years, some for 5. Not all waitings have a good ending – some can be deported! But this is our lives which are damned to uncertainty.

Life during asylum process…
Actually there is no life during this process. You try to create a daily routine for yourself and this routine is probably the same for everyone who are in the asylum process. We are all living in small towns far from the city center. There is no opportunity for social activities. You get up in the morning, have some breakfast, sleep again, get up again, cook for dinner and sleep again – if you can. When you attempt to register for gym, you cannot – you do not have a right to do it. Because you do not have an ID card. Indeed, if you do not have an ID card, you do not have any rights. You have no rights to get mails, you have no rights to go to gym, you have no rights to buy some internet data, you have no rights to enter entertainment centers, you have no rights to buy certain stuff like mobile phones, cars etc. Indeed, you have no rights other than breathing. They want to see your ID card for any matter and refugees in the asylum process do not have access to ID cards. There are quite a lot of questions straining my mind, but the most important one is the following:
Is our existence identified with ID cards?
Beyond a piece of paper, I am a trans who escaped from death and who wants to live. But it really hurts that I am abandoned to a kind of social death in this country!

What can I do with 2000 Kr?
When I was settled here, they started to give us a certain amount of money for food. We do not pay for the rent, electricity or heating and yes that’s brilliant indeed. However, we are human after all. We have to buy hygiene products, personal daycare stuff like wax, razors, shampoo etc. If you are a trans woman, make-up is very crucial and you have to find out to cover that with the same amount as well.
In the waiting process, you drink, eat and sleep. That is all. But we do need social rights, private spaces. Considering all these, I have started my Hunger Strike on April 30, 2018, at 18.00. My decision is certain and it is a political act!
The Swedish Immigration Authority is in charge of anything that may hurt me during the process!
I will end the action if immigration authorities makes this situation more humane and regulates the following matters.

Demands:
Stop deportation of LGBTI+ refugees
Minimise the waiting process and standardise
LMA cards to have equal opportunities with IDs
More allowances for personal needs
New regulations on trans* medical process

Despite everything, love will win!
Refuges rights are human rights!
Demhat (Bella) Aksoy”