Legal gender recognition in Turkey
| Date | 01 March 2022 |
| Published date | 01 March 2022 |
| Author | Aslı Makaracı Başak,Seda Öktem Çevik,Ulaş Sunata |
| DOI | 10.1177/13582291211070223 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(1) 56–73
© The Author(s) 2022
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DOI: 10.1177/13582291211070223
journals.sagepub.com/home/jdi
Legal gender recognition in
Turkey
Ulas¸ Sunata, AslıMakaracıBas¸ ak and
Seda ¨
Oktem Çevik
Abstract
Despite recent advances in transgender rights in European countries, some legal systems
still have barriers such as obligatory diagnosis, sterilization, and medical interventions and
incorporating societal acceptance and public order into their discourse. This study dealing
with the regime of legal gender recognition in Turkey first reveals critical reciprocating
historical developments in national legal regulations for affirming trans identities. Then,
the recent conditions laid down by the 2017 Constitutional Court judgments stating that
transgender people do not require permanent sterilization any more but require sex
reassignment surgery for legal gender change are evaluated. Moreover, this paper explains
that while the jurisprudence of the European Court of Human Rights partly reflects the
current Turkish legislation, it is not a big step for transgender rights. The findings also
underline that the new Turkish regulations appear reformist but are indeed strong
measures for legal consistency to solve the dilemma in the previous period in order to
maintain the status quo.
Keywords
Gender, transgender, discrimination, law, human rights, gender change, Turkey
Introduction
In the present day and age, the point of reference for defining gender has distanced itself
from relying solely on the biological characteristics of the individual. Both as a result and
driver of this change, important discussions have taken place, globally as well as in
Turkey, regarding gender identity. In particular, transgender identity is highly
Bahçes¸ehir University, Istanbul, Turkey
Corresponding author:
Ulas¸ Sunata, Bahcesehir University, Ciragan Cad. Osmanpasa Mektebi, Besiktas, Istanbul 34353, Turkey.
Email: ulas.sunata@eas.bau.edu.tr
controversial in many areas including sports, medicine, social movements, and legal
systems (Connell, 2012: 857-81; Ettner et al., 2016;Labman, 2001: 66-73; Sykes, 2006:
3-13; Safer et al., 2016: 168-71).
1
Meadow (2010) underlines institutional efforts to
manage the uncertainty in gender. The idea of nonbinary gender as an identity, which
poses a threat to the categorical structure of law (Sharpe, 2010), has been evaluated only at
the margins of legal scholarship (Clarke, 2019: 900). But change in legal binary sex has
received more space in the last decades. This paper sets out to analyze the development of
Turkish jurisprudence around the legal regulations for transgender identities and the
framework that governs a legal change of sex/gender.
Legal gender (re-)classification is affected by cultural anxieties about reproduction and
the heterosexual conjugal family. In order to respond to these societal reflexes, legal
advances still (re-)impose diagnostic criteria pathologizing transgender people and un-
derpinning sexist assumptions (Carrera et al., 2013). Legal criteria still mostly depend on
diagnosis, sterilization, and the performance of sex reassignment surgery (SRS). In fact,
they attribute to the requirement of "sanitary affairs" under a strong legal-socio-medico
relationship. Therefore, there is a large body of literature on transgender people’sen-
gagement with the medico-legal system (Davy, 2010,2012;Hines and Sanger, 2010).
There is also a broad range of international literature discussing the value of gender
regulation (Clarke, 2019;Sharpe, 2010;Westbrook and Schilt, 2014;VanDen Brink et al.,
2015). In fact, there is strong empirical evidence of the significant positive impact of legal
gender recognition on social and psychological well-being of transgender people
(Moleiro and Pinto, 2020). National legislations are critical for gender recogni tion since
their social function to provide equality among citizens and protect human dignity, in fact,
legally excludes transgender people, and supports the existing social exclusion
(Makarewicz-Marcinkiewicz, 2019). Therefore, the law inevitably becomes important
with its power to either preserve social norms or construct new ones. Going further into
the legal perspective, there are also the issues of permanence and consistency. Can laws be
flexible enough to deal with such ambivalent situations? In other words, can laws be open
to adapting to certain gender-related changes?
When looking at Turkey,the essentialist mindset of the country in the context of gender
identity can be seen through the simplest details such as the color of the identification
cards which were pink for women and blue for men; this has been changed only in the last
few years. Another example could be the patriarchal ancestry where children are given
their fathers’last names, and after marriage, women become part of their husbands’
lineage and are thus given the last names of their husbands. Furthermore, reproduction is
essentially perceived as an ability that is directly linked with both manhood and
womanhood. The gender of the individuals who are unable to reproduce is often
questioned, as they are not able to perform the single most important task that is imposed
by the cultural norms. As SRS eliminates the possibility of biological reproduction, it
becomes a critical case. Due to this sexist perspective, homophobic and transphobic
disposition is common, and transsexuality is often a taboo within the society. Transgender
people are commonly isolated by the public as if they do not exist or ignored as if they are
not transgender. They are however visible victims of hate crimes. In fact, they are often
forced to become sex workers since they face major discrimination while trying to find
Sunata et al. 57
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