24/02/2022 | Writer: Yasemin Öz

The absence of legislation in Turkey that prohibits discrimination against LGBTI+ people and promotes equality, leaves LGBTI+s legally insecure against discrimination in accessing basic human rights such as employment, access to goods and services, education, health, travel and settlement.

LGBTI+ rights, global standards and Turkey's situation Kaos GL - News Portal for LGBTI+

Introduction

ILGA Europe (1), which is the umbrella organization of more than 600 LGBTI+ organizations from Europe and Central Asia, and TGEU (2), which functions as the umbrella organization of 169 trans organizations from the same geography, publishes legal-political index evaluation that shows the situation of LGBTI+ rights. In these maps, countries are evaluated with reference to the human rights standards demanded by the LGBTI+ Movement.

In these indexes, which also includes Turkey, data on Turkey are prepared with the contribution of Kaos GL. When ILGA Europe Rainbow Map and Index 2020 (3) and Trans Rights Europe and Central Asia Index 2020 (4) are examined, it can be seen that Turkey is far behind the developing global standards in human rights.

As it can be understood, the absence of legislation in Turkey that prohibits discrimination against LGBTI+ people and promotes equality leaves LGBTI+s legally insecure against discrimination in accessing basic human rights such as employment, access to goods and services, education, health, travel and freedom of settlement. State institutions established to ensure equality do not carry out a program or public policy regarding LGBTI+s.

Aside from not legally recognizing the civil unions of LGBTI+ people, the current legal regulations restrict these unions legally and make it impossible. The non-recognition of the civil union of LGBTI+ people result in the deprivation of many social rights of couples. Likewise, the lack of a regulation regarding hate crimes that LGBTI+s are severely, systematically and constantly exposed to prevents them from practicing all their basic human rights, including the right to life. Since hate speech has been produced directly by public authorities in the last three years, hate crimes and discourse against LGBTI+s by society and public officials have also increased systematically. (5)

While there are legally limited ways of gender reconciliation procedures, name change and accordingly the regulation of personal data according to the new identity for the public recognition of bodily integrity and gender identity, there is no uniformity in practice and there are often obstacles. In addition, the gender affirmation process is subject to many conditions, one of which is the medical process.

In the field of civil society, the right to assembly and demonstration, and many collective activities and events for LGBTI+s have been systematically and unlawfully prevented for many years, and new prohibitions have been put into effect despite the annulment decisions made by the courts against these unlawful practices. In this way, even if each ban decision is annulled, new banning decisions are taken in new events and events cannot be organized until the court is concluded, so events are actually blocked and a policy of intimidation is developed. (6)

Within the scope of this information note, we tried to summarize the situation in Turkey through the current indices of ILGA Europe and TGEU. This index was created to provide a reference text that supports the comprehensive surveys of legislation and judicial decisions regarding LGBTI+s that we have carried out in the past years, and the human rights reports of LGBTI+s that we publish annually. Hope it will be a small contribution to see the days when our rainbow indices reflect every color...

A. Equality and Non-Discrimination

1-Equality in the Constitution

In Article 10 of the Constitution that regulates the principle of equality, discrimination on sexual orientation, gender identity and gender characteristics (SOGIGC) is not specifically regulated and is not included in the prohibition of discrimination. LGBTI+s have not been given any special protection at the constitutional level. All attempts by civil society and opposition parties in this regard have been inconclusive.

2-Employment

In Article 5 of the Labor Law regulating the prohibition of discrimination, SOGIGC discrimination is not included in the prohibition of discrimination.

3. Access to Goods and Services

In Article 122 of the Turkish Penal Code, which regulates the prohibition of discrimination, SOGIGC discrimination is not included in the prohibition of discrimination.

4-Education

There is no regulation regarding SOGIGC discrimination in the field of education.

5-Health

There is no regulation regarding the discrimination based on SOGIGC in the field of health. So-called "conversion therapies" are not prohibited.

6-Freedom of Travel and Settlement

While the freedom of movement and residence is not legally restricted, the houses of especially trans women are sealed on the grounds of “intermediating in prostitution” and they can be de facto prevented from staying in their residences. (7)

7-Equality Institution

In the law regulating the duties of TİHEK (Turkish Institution for Human Rights), there is no regulation regarding the prohibition of SOGIGC discrimination. The Institution rejects applications based on SOGIGC as it is not included in its legislation. (8)

8-Equality Action Plan

There are no equality action plans covering public policies that address the human rights of LGBTI+s.

9-Legal Regulations Regarding Sexual Orientation, Gender Identity and Gender Characteristics

Gender affirmation process is regulated in Article 40 of the Civil Code. The medical process that includes the surgery, medical approval and court approval is envisaged. (9)

10-Blood Donation

It is forbidden to donate blood for those who have same-sex relationships.

B. Family

11-Right to Marriage

There is no right to marriage.

12-Civil Partnership

There is no right to have registered partnership (civil partnership).

13-Living Together

The right to live together is not legally mentioned.

14-No Restrictions on Marriage in the Constitution

Since the constitution regulates that marriage can be concluded between men and women, the right to marriage of LGBTI+s is restricted at the Constitutional level.

15-Joint Custody

Since there is no right of marriage and related custody, there is no right of joint custody.

16. Custody of the Other Parent

The other parent does not have custody.

17-Other Parent's Automatic Custody

The other parent does not have automatic custody.

18-Medically Assisted Artificial Fertilization for Couples

There is no right to medically assisted artificial insemination.

19-The Right of Unmarried Persons to Artificial Insemination

Unmarried persons do not have the right to artificial insemination.

20-The Right of Trans people to be Registered as a Parent

Trans people do not have the right to be registered as a parent.

21-Custody Rights of Non-binary Persons

Non-binary persons are not entitled to custody.

C. Hate Crimes and Hate Speech

22- Hate Crimes Law

There is no hate crime law that protects LGBTI+ people.

23-Hate Speech Law

There is no hate speech law that protects LGBTI+ people.

24-Anti-Hate Policy

There is no anti-hate policy.

D. Legal Recognition of Physical Integrity and Gender Identity

25-Existence of Legal Regulations

Gender affirmation surgeries are regulated in Article 40 of the Civil Code, but the holistic process is not compatible with ECtHR standards.

26-Existence of Administrative Procedures

Some personal data may be regulated depending on gender affirmation surgeries, but there is no fully inclusive and fully compliant legislation.

27-Name Change

Name changes are at the discretion of the courts, and applications for name change without gender affirmation surgery are sometimes accepted and sometimes rejected. There is a recent positive Constitutional Court decision regarding this issue, and its implementation has not been observed yet. (9)

28-Name Change Without Age Limit

There is no age limit for name change.

29-Recognition of Gender Identity by Declaration (Right to Self-Determination)

Gender identity is not recognized on the basis of declaration without gender affirmation surgery, medical approval and court permission.

30-Non-Binary Identity Recognition

Not legally recognized.

31-Pyschological Report Condition

A psychological report is required in gender affirmation surgeries.

32-Mandatory Medical Intervention

Recognition of gender identity is conditional on gender affirmation surgery.

33-Mandatory Surgery

Recognition of gender identity is conditional on gender affirmation surgery.

34-Infertility Condition

There is no requirement for infertility for gender affirmation surgery. However, since surgery is mandatory, the process often results in infertility.

35-Divorce Condition

The condition of not being married is required for gender affirmation surgery.

36-Age Limit

For gender affirmation surgery, it is required to be over the age of 18.

37-Prohibition of Non-Consensual Medical Intervention for Intersex People

The consent of the parents is considered sufficient for medical intervention to intersex people.

38-Non-Pathologizing

In the police and military laws, LGBTI+ existence is defined as psychosexual disorder.

E. Civil Society Area

39- Organizing Events and Preventing Meetings and Demonstrations in Public Space (Last 3 years)

Many indoor and outdoor events and all demonstration marches are prohibited.

40-Organizing Public Events and Ensuring Adequate Protection (Last 3 years)

Events in the public sphere were either prohibited or organized without protection.

41- Organizational Activities, Freedom of Association Ban (Last 3 years)

There is no ban against LGBTI+ organizations, however, in the last 3 years, LGBTI+ organizations have been subject to frequent state control and have been subjected to hate speech by senior public officials.

42-Risks of LGBTI+ Rights Defenders

LGBTI+ organizations and activists are subjected to systematic hate speech and targeted by public authorities and the press.

43-Limitation of Foreign Funds

Foreign funds are not limited but are subject to a notification requirement.

44-Restriction of Freedom of Expression

The "public morality, obscenity" and similar criteria mentioned in the Constitution and other laws are applied against the freedom of expression of LGBTI+s.

F. Asylum

45-Legal Regulations

There is no legal regulation for LGBTI+ refugees.

46-Policy and Other Positive Measures

There are no policies or positive measures for LGBTI+ refugees.

Translation: Aras Örgen

References

1.https://www.ilga-europe.org/

2.https://tgeu.org/

3.https://www.ilga-europe.org/rainboweurope/2020

4.https://tgeu.org/trans-rights-europe-central-asia-indexmaps-2020/ 

5.https://kaosgldernegi.org/images/library/medya-i-zleme2020-web.pdf 

6.https://kaosgl.org/haber/istanbul-onur-yuruyusu-yasaginaacilan-dava-reddedildi 

7.https://kaosgl.org/haber/bayram-sokak-ve-kucuk-bayramsokak-ta-trans-kadinlarin-evine-muhur 

8.https://kaosgl.org/haber/tihek-cinsel-kimlik-ayrimciliktemeli-sayilamaz

9.https://spod.org.tr/haberler-duyurular-cinsiyet-uyumsurecinin-hukuki-boyutu-sss-kilavuzu/ 

10. https://kaosgl.org/haber/aym-den-isim-degisikligireddedilen-trans-kadinin-basvurusunda-karar-ozel-hayatasaygi-ihlal-edildi

*This article was produced with the financial support of the European Union. Its contents are the sole responsibility of Kaos GL Association and do not necessarily reflect the views of the European Union.

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