27/02/2022 | Writer: Kerem Dikmen
Lawyer Kerem Dikmen researched and reported the approaches taken by Turkish universities towards transgender graduates requesting from their university to change their university documents.
A person's gender identity stands for the existential side of that person. However, most of the time it is seen that regulations are formed on the basis of the binary gender system. Therefore, when the gender assigned to a person at birth by prioritizing their biological characteristics is different than the gender identity as felt by that person, the binary gender system brings about a bunch of problems for trans people. Additionally, public policies and legal loopholes often cause violations of individual rights.
The beginning of the civil registry in the modern sense in Turkey dates back to 1830 when the first directorate-general for the registry was founded. However, it took until 1988 for the first legal regulation to be put into force so that the gender identity is reflected to the civil registry records of persons and the person is freed from the sense of captivation under their gender as assigned at birth. On 4 May 1988, a paragraph was added to Article 29 of the current Civil Law, for the first time clarifying how the gender section in the civil registry would be re-arranged.
Today, it is necessary to meet the conditions set forth in Article 40 of the Turkish Civil Law in order for the gender affirmation process to be reflected in the civil registry. In this sense, the main elements of the law leading to violation of rights can be listed as the fact that it requires surgical intervention to the person, keeps the lack of reproductive ability as a condition although it has nothing to do with identity, interfering with the hormonal and genital structures of the people; that gender transition can be requested after the age of 18 and that it is subject to a judicial procedure. However, since there is no other application method, this is the only way for trans people to resort if they want to register their gender identity. On 06.01.2021, the Ministry of Justice was asked to provide information on the number of lawsuits which are filed and resolved pursuant to Article 40 of the Turkish Civil Law in 2018, 2019 and 2020 under the right to information. However, there was no response by the Ministry at the writing stage of this report. When the Ministry was contacted again on 19.01.2019 with the request to provide the same information for another research study for another research, no information was provided on the grounds that retrieval of such data would require special research.
Unfortunately, overcoming these challenges against the civil registration of the affirmation process does not mean solving all problems faced by trans people. Due to the fact that a system has not been developed, some basic documents, which were drafted according to the previous registry records of the person and are still in use, are not rearranged according to the new identity information. This, as a result cause disclosure of a gender to which the person does not belong or name which is not used by the person anymore to third parties. Consequently, information about people’s private life becomes public without t he person’s will.
It is seen in particular that high school or university diploma or transcripts given to the person at the time of graduation are either not changed at all or necessary changes are reflected on these documents by puttting an annotation without removal of the previous identity information. This brings about disclosure of information on the person’s past to third parties in case they want to apply for a job or make any other application that requires presenting their diploma or transcript or in cases where they would like to show their document visibly with free will even if they don’t need to apply to an institution.
Clealry, public universities are supposed to perform the following in the usual run: Follow a simple method which would only require an application to change basic documents that are always needed to be used in up-to-date format, such as diplomas and transcripts of graduate students just as is the case with the drivers licence, identity card or the passports. The new doccuments issued should make no reference by annotation or recording to the previous information, this personal information regarding private life should not be disclosed to third parties in any way against the will of the individuals, or trans people should not be forced to use outdated information, as in some cases.
Although the Republic of Turkey is governed under a centralist approach, universities are public administrations with legal personality, as they were in the parliamentary system period. In this respect, they can make general regulations, which are not contrary to the higher norms in their jurisdiction, through regulations or directives. As for the people, they are able to make individualized transactions. As such, it is seen that there is no specific standard for transgender graduates. Because the Higher Education Law, which is accepted as the upper norm, is not focused on individuals and rights, but on society and duty. In particular, Article 4 "Purpose" is a guide on the way the state shapes society through universities. This approach, which weakens individuals in the face of society, does not focus on individual rights and freedoms and does not call on universities to carry out their regulatory processes in this direction. It does not respect the individual rights in the face of the social needs and requirements that he describes himself. It does not guarantee individual rights, and since it does not provide legal assurance regarding these rights, it stipulates that it is university administrations’ duty to ensure that these rights are accessible to everyone. Consecuently, it has been seen that different universities have different practices in terms of graduate trans people.
Differences in such practices pose challanges against not only the trans people but also the human rights activists working in the field. It is not possible for consultants to know all practices applied by universities or in any way transfer their knowhow. It is seen that even the universities in the same city have different practices.
This study tries to take an image of universities’ approach towards the requests made by graduate trans students on changing the basic registration and other documents. During the study, the regulations and directives arranged on the basis of the university were first downloaded from the university websites or through the electronic public information management system and observed. Accordingly, the study aimed at observing how universities react to requests by graduate trans students to change their diploma.
However, some of the universities are lacking directives or regulations on the subject either on their websites or on the public information management system. Pettions on requesting information on this subject were sent to 84 universities on 19, 20, 21 November 2020, through the forms on their websites or via the e-mail addresses as shown on the web page of the Board of Higher Education.
It is a fundamental problem that universities do not publicize information about their students. Basic information about graduation, such as diploma and transcript, should be easily accessible. In this sense, the not sharing the information itself may lead to violation of rights.
37 of the universities from which information was requested, since they did not share instructions and regulations on the website or in the system, did not respond to the request within the legal period. Following to this, a new e-mail was sent to them on 05.01.2021 to remind them of the fact that it is possible to file an administrative claim against them as long as they shall not respond in 60 days. After that, some of them made a comeback. As of the writing date of the report, 19 universities still have not shared information. This situation on its own is a denial of the right to information and a violation of a right, and this aspect will also be reflected in the annual human rights report of Kaos GL. Additionally, universities not responding to such requests are evaluated as the universities against re-arranging diploma information according to the identity information changed after graduation and recorded as such.
According to the database of the Board of Higher Education, there are 205 active universities in Turkey. Two of them do not have a website, nor do they have registered contact mail addresses in the database. For this reason, the source of information about these two universities, namely the International Islamic, Science and Technology University of Turkey and the Turkish-Japanese Science and Technology University, could not be reached.
Universities that do not share directives and regulations on their website violate people's right to access information with this attitude. On the other hand, hiding this information, which has a public value, from the public, as in the cases stated in this report, by not sharing these documents on the website, unfairly limits the freedom of expression as well.
It is noteworthy that there is no routine practice in the regulations of universities for transgender graduates. Some of the universities contacted interpreted the information request as the beginning of an individual lawsuit process, while others stated that there was no regulation on this issue because the universities were newly established.
The fact that universities do not feel the need to make a regulation on this issue due to the lack of a specific demand shows that the public obligation of universities to produce policies regarding trans rights is not observed. On the other hand, while universities did not implement regulations with a trans-inclusive approach, they carried the cis-heteronormative platform coming out of the binary gender system, to their duties and jurisdictions.
According to the results obtained through the correspondences and examinations, the approach of universities to the requests for re-issuence of diplomas and other documents after graduation can be categorized as follows:
· Those who do not meet the requests for reissuence of documents under any circumstances
· Those who conditionally meet the requests for reissuence of documents
· Those who leave this to the discretion of implementers, leaving them uncertain and insecure
· Those who meet the requests for reissuence of documents
· The Unknown
It is possible to speak about a standardised process for those who meet or do not meet the demands under any circumstances unconditionally. Although those who respond conditionally to the demands issue a diploma according to their new identity information in principle, they add a second copy to the back or rarely to the front of the diploma or an additional judicial information.
Universities that leave this sphere unclear generally do not implement the regulations that guarantee rights, and leave the initiative to the implementers to a large extent. Some state that such requests will be rejected on the grounds that there is no provision in their directive regarding the reissuence of documents, some state that the university senate can take a decision on this issue, some state that the request can be met because there is no prohibitive provision in the Law on the Board of Higher Education and some do not even provide a response. In all of these, it is seen that the practice will also change if the practitioner changes, that is, the responsible officer or supervisor. Yet, in the majority of the universities that remain in the "uncertain" area, the requests for retroactive changes in the registrations are in fact met positively. Or, although the directive did not allow this, an in-university practice was developed and the demands were met positively. This leaves the fundamental right to the discretion of the practitioner, thus depriving transgender graduates of a guarantee. This uncertainty also complicates access to information and hinders the right of individuals to obtain a personal record in accordance with their gender identity. Therefore, at the last stage, it would be appropriate to interpret the state of uncertainty as a negative response to the demands.
The Unknown consists of those who have not published regulations and directives under any circumstances and do not respond to requests for information. Failure to respond is already a violation of rights, because they both turn into a de facto obstacle to the use of freedom of expression for the publicization of information, and also hinder the right to access information. It would be appropriate to interpret the unknown as a negative response to the requests at the last stage.
As is seen, eight of the universities, which correspond to only 3.9% of the universities, unconditionally reissue their diplomas according to the identity information of transgender graduates after the gender affirmation process. According to statistics of the Board of Higher Education, the total number of students enrolled in associate, undergraduate, graduate and doctoral programs in the 2019 - 2020 academic year is 7,940,133. The total number of students attending formal education (including evening education) is 1.870.166. If the graph above is not based on university, but on registered student, it would be as follows:
As stated, the total number of students attending formal education (including evening education) at higher education level in Turkey is 1,870,166. Open/Distance education is excluded. Because, although there is no statistical data, these education types are generally preferred with the motive of having a second university degree, and they do not include vocational programs such as pharmacy, medicine, law, teaching, engineering. Therefore, inclusion of this type of education, which covers 4,199,081 students, in the general statistics will cause a misleading perception, keeping in mind that Anadolu University, which responded positively to the diploma change request, has 3,438,142 students in open/distance education programme. For this reason, open/distance education is excluded from the scope.
While some universities may enroll a large number of students, some universities may enroll a small number of students due to the fact that they are new or have limited quotas. When the ratio is calculated according to the number of registered students, as can be seen from the chart above, only 15.5% of the associate, undergraduate, graduate and doctoral students who continue their education have the opportunity to change their diplomas after they update their civil registry in light of their gender affirmation process.
Article 10 of the Constitution guarantees everyone's equality before the law. Although there is no prohibitive provision in the higher education legislation, the overwhelming majority of universities, such as 67.8% in terms of number and 59.5% in terms of the number of registered students, cause violations of rights by not reflecting the changes in the civil registry to their diploma following the legal recognition of gender.
The European Court of Human Rights considers the fact that the civil records of the persons who have completed the gender afffirmation process are not reflected in the official documents as a violation of rights, and it does not deem the practice of putting annotations [ (Rees vs. United Kingdom, 9532/81), (B. vs. France, 13348/87) ] a valid methodolody in this sense. Moreover, these decisions are only about the cases arised on the ground of registration. It is seen that many other cases regarding the recognition of gender identity were judged under the principle of the respect to private life.
Considering Article 90 of the Constitution of the Republic of Turkey, which stipulates that the ratification of treaties concluded with foreign states and international organisations on behalf of the Republic of Turkey including the European Convention on Human Rights shall be subject to adoption by the Grand National Assembly of Turkey by a law approving the ratification. According to the same article, in the case of a conflict between international agreements, duly put into effect, concerning fundamental rights and freedoms and the laws due to differences in provisions on the same matter, the provisions of international agreements shall prevail. Therefore, it can easily be said that international treaties on gender identity provide a broader sense of rights. Additionally, Article 17 of the Constitution already regulated the protection and development of the spiritual existence of the individual as a right, and Article 20 emphasized the privacy and protection of private life. Administrative judiciary applies the constitution directly in the absence of a special regulation. In this case, the fact that universitires create barriers with their internal directives is a direct violation of constitutional rights for the people when there is no regulation restricting the universities at the level of laws.
A. TO UNIVERSITIES THAT UPDATE THEIR RECORDS RETROSPECTIVELY, UNCONDITIONALLY AND REFLECT THIS TO THEIR DIRECTIVES
These universities both update their records according to current credentials and reflect this in their directives or regulations. There are five universities with this qualification and the number of students they have is 233,706. Their regulatory processes and practices, such as directives and regulations, are limited to the right of the research subject, and these universities are trans-inclusive. These universities need to increase the awareness with regard to this information and inform students about this opportunity.
B. TO UNIVERSITIES THAT UPDATE THEIR RECORDS RETROSPECTIVELY BUT CONDITIONALLY
In principle, these universities do not oppose the retrospective updates of current records. However, there are conditions such as stating judicial information on the back of the diploma and demanding a fee. Since the authenticity of diplomas can now be queried from the database of the Board of Higher Education, the practice of back-to-back annotation, which seems to have been developed as a precaution against counterfeiting, no longer meets a current need. These universities need to repeal these conditions. On the other hand, they should not only change this, but also update their directives and regulations in a way that clearly guarantees this assurance.
C. TO UNIVERSITIES THAT REFUSE TO MAKE RETROSPECTIVE UPDATES IN THEIR RECORDS
These universities systematically violate the right to demand respect for private life. Because there is no public benefit in not changing the documents such as diplomas and transcripts of trans people who have completed the transition process after graduation, this has no legitimate purpose, especially considering the technological possibilities of our era, where documents are digitized, verification methods are facilitated and widespread.
Moreover, there is no directive included in the law on the Board of Higher Education, which is accepted as the higher norm, so the intervention does not carry the element of legality.
These universities should change their directives as soon as possible, and those without directives should announce to the public that they will meet such demands.
Translation: Kamil Ulupınar
*This article was prepared within the scope of Strengthening Advocacy for Equal Rights Project which is supported by the European Union. This does not mean that the content of the article reflects the official view of the EU.
Tags: human rights, education