gender reassignment

Anadolu: Turkish court annuls infertility requirement for gender change

Turkey’s state-run Anadolu news agency reports the Constitutional Court ruled to annul a stipulation in the Turkish Civil Code “to be deprived of the ability to reproduce” to allow gender change. This is verbatim translation like all our translations.

Source: Aylin Sırıklı Dal, “Cinsiyet değiştirmede ‘üreme yeteneğinden yoksun olma’ şartı kalktı,” Anadolu Ajansı, Nov. 30, 2017, http://aa.com.tr/tr/turkiye/cinsiyet-degistirmede-ureme-yeteneginden-yoksun-olma-sarti-kalkti/985974

The Constitutional Court decided to annul the legal requirement “to be deprived of the ability to reproduce” to allow gender change.

According to information gathered by Anadolu Agency correspondent, a homosexual opened a case in the Ankara 4th Court of First Instance after being unable to change their identity card due to not having had gender change surgery.

The court petition asked the court to evaluate the claim that the Turkish Civil Code’s Article 40/2 mandating the requirement of gender change surgery to change one’s identity card violated the constitution.

Ankara 4th Court of First Instance found the petition to be serious and took the file to the Constitutional Court.

The General Council of the Constitutional Court discussed the basis of the petition at its meeting. The Council rejected the annulment Turkish Civil Code’s Article 40/2 with a majority of votes stating “the court can make the necessary changes in the population registry after an official health institution confirms the gender change surgery was realized.”  

Annulment of requirement to be deprived of reproduction ability

Another petition on this subject was made by the Edirne 1st Court of First Instance. The court applied to the Constitutional Court to annul the statement “….and to be permanently deprived of the ability to reproduce…” in the second sentence of Turkish Civil Code’s Article 40/1.  

The General Council of the Constitutional Court discussed the basis of the petition and made its decision.

The High Court found the requirement “to be permanently deprived of the ability to reproduce” to allow gender change to be contrary to the Constitution and annulled it with a majority of votes.

The first paragraph of the law used to state, “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, the person needs to have passed the age of 18 and be unmarried, and document through an official health council’s report from an education and research hospital that they are of transsexual constitution, that it’s necessary to undergo gender change for their psychological health and be permanently deprived of the ability to reproduce.”

 

The European Court of Human Rights to announce verdict on Turkish gender reassignment law

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.

Gender reassignment in prison, approved!

28 year-old Y.A., a convict in Maltepe prison was granted the right to change gender following the issue of a doctor’s report stating the inmate had gender dysphoria

Source: Radikal, “Cezaevinde cinsiyet değişimine onay!” (“Gender reassignment in prison, approved!”), Radikal, 20 January 2015, http://www.radikal.com.tr/turkiye/cezaevinde_cinsiyet_degisimine_onay-1276212

Y.A., a 28 year-old convict having issues with their sexual identity, applied to the court while in Maltepe prison to change their name and gender. Last year in January, following the issue of a doctor’s report stating that they had gender dysphoria, Y.A. legally changed her name to Asli A. at the 6th Anatolia Civil Court. Within a month of the name change, Asli A.’s request to change their gender was approved.

GENDER REASSIGNMENT REQUEST APPROVED

Reaching a verdict on Asli A.’s request, in which she stated she is transsexual and deeming gender reassignment as vital to her mental well-being, the 22nd Anatolia Civil Court instructed a report be issued by Marmara University Pendik Learning and Research Hospital. Diagnosing Asli A. as suffering from gender dysphoria, the report concluded it was crucial that her biological identity match her female psycho-sexual identity to safeguard her mental well-being. The report added, “It is important and essential for the person’s mental well-being that the prison conditions are adapted to correspond to her sexual identity and the necessary supplies are provided for her personal care. No objections on the basis of mental health were found against the surgery to reassign the person’s gender as female.”

LETTER TO THE PROSECUTOR

One year on from the court’s decision, the execution of Asli A.’s gender reassignment surgery was still pending when she wrote a letter to Servet Kartal, Anatolia’s 1st Prosecuting Judge. Noting that Kartal had previously approved a similar request from inmate Deniz C. and had directed the Penal Prosecution Office to do what was necessary, Asli A. demanded that the same decision be made for her case, expressing that her surgery was being obstructed by the Penal Prosecution Office.

“THE DEEP SADNESS PEOPLE FEEL WHEN THEY HAVE ISSUES WITH THEIR PHYSICAL APPEARANCE”

Anatolia 1st Prosecuting Judge Servet Kartal stated that the inmate’s transsexuality meant her gender needed to be immediately reassigned as female and failing to do so would otherwise lead to mental health problems as outlined in the hospital report. In his two-page verdict Kartal wrote, “The execution of this procedure should be imminent taking into account the deep sadness and shame people feel when have issues with their physical appearance, and the irreparable negative consequences this may have on the inmate’s mental health. This is of the same significance as having physical health issues, and therefore the execution of the procedure should be imminent, as prolonging the inmate’s wait for surgery constitutes a risk on the inmate’s life due to the threat of a mental breakdown.

Noting that the inmate, having been diagnosed with “gender dysphoria”, was being kept in prison conditions against her will, the verdict stated, “In order to uphold the right of the inmate to live according to his will, noting that gender reassignment is legally allowed to take place during imprisonment, providing the cost of the surgery is borne by the inmate and the necessary security measures are taken, it was decided that this letter be written to the Maltepe Penal Prosecution Directorate to notify the Ministry of Justice in order for the inmate to be transferred to a state hospital with the equipment and capacity to perform the surgery.”

The verdict, emphasising the immediacy of the surgery, was sent to the Maltepe Penal Prosecution Directorate.