The European Court of Human Rights (ECtHR) will announce its final judgment on March 10 in the case of a trans man in Turkey who was not granted court permission needed for gender reassignment surgery.
Source: Ömer Akpınar, “AİHM trans geçiş sürecine ilişkin kararını 10 Mart’ta açıklayacak” (“ECtHR to announce verdict on Turkish gender reassignment law”), kaosGL.org, 24 February 2015, http://kaosgl.org/sayfa.php?id=18827
The ECtHR will announce its final verdict on Y.Y. v Turkey case regarding Article 40* of the Turkish Civil Code on gender reassignment.
What does Article 40 require?
Article 40 of the Turkish Civil Code stipulates that a court permission must be obtained in order to undergo gender reassignment surgery. According to the article, the permission can only be given if the person is over 18 and unmarried and if the person has obtained official medical board reports to prove that the operation is psychologically needed and that the ability to reproduce is permanently lost.
Proof for being “unable to reproduce” brought a legal deadlock
The applicant who wants to be registered as male and to get permission for gender reassignment surgery applied to a Court of First Instance in 2005. The next year, he got two different psychiatric expert reports in February and April, stating that he must continue his life as a man. However, following a report in May stating that the person still has the ability to reproduce, the court ruled that the applicant does not fulfill the requirements of Article 40.
How can one fulfill Article 40’s requirements if the surgery for losing reproductive ability has not been permitted?
The Supreme Court of Appeals stated in a May 2007 verdict that the decision by the Court of First Instance is correct. It also rejected the applicant’s request for a correction in the ruling in October 2007.
Y.Y. v Turkey
The applicant took the case to the ECtHR in 2008, complaining about the content and the interpretation of the law. In the proceeding which started 2 years later, he underlined that the relevant requirement of the law can only be fulfilled by a surgery, leaving him in an inconclusive situation.
Although it was proven by medical reports that the applicant identifies as a man and his physiology does not fit his gender identity, it was not enough for the court. The applicant claims that his right to privacy, designated in Article 8 of the European Convention on Human Rights, has been violated.
“If accepted, the case might lead to an amendment in the law”
The applicant’s lawyer, Ali Nezhet Bozlu, explained the possible outcomes of the case to kaosGL.org:
The legal impact depends on whether the ECtHR will accept the case and their justifications. If it is accepted, the Committee of the Ministers of the Council of Europe will monitor the implementation of the decision and perhaps mention the case in Turkey’s Progress Reports. This may lead to a discussion to amend the law, however, such amendments take time.
Article 40 of the Turkish Civil Code:
A person who wishes to change their gender may request permission to change their gender by applying in person to the court. However, for the permission to be granted, the applicant must be 18 years old and must be unmarried. The applicant must also be in a transsexual nature and must document the necessity to change their gender for their mental health and that they are permanently deprived of reproductive abilities through an official health committee report obtained from an education and research hospital. Depending on the permission granted, once the gender reassignment surgery fit for the aim and medical methods has been completed and verified by an official health committee report, the court decides to make the necessary changes in the population registry.