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Constitutional Court of Turkey

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Application by Court of First Instance to Annul a Rule Provided under Article 40 of the Turkish Civil Code (Decision No. 2017/165)

Article 40 of the Turkish Civil Code, at the time of this application, required the courts to grant authorization to persons wishing to change their gender assignments and have gender reassignment surgery that (i) persons requesting such change be over the age of 18 and unmarried and (ii) there be an official health council report from an education and research hospital certifying that (a) they are transgender, (b) gender reassignment is necessary fo

Application by Court of First Instance to Annul Second Paragraph of Article 40 of the Turkish Civil Code

The application was made by the First Instance Court handling a case where a transgender man requested to change his gender assignment in the civil registry from “female” to “male.” The First Instance Court applied to the Constitutional Court for the annulment of the second paragraph of Article 40 of the Turkish Civil Code stipulating that amendments to be made in the civil registry to reflect the gender identity of the person whose gender assignment

Case Number E.1999/27, K.1999/42

Article 237.4 of the Turkish Criminal Code provides for a penalty of two to six month imprisonment if a man or woman holds a religious wedding ceremony before a civil ceremony. Under Turkey’s principle of equality, different individuals with different legal statuses may be treated differently. The Constitutional Court found that the statute does not violate the principle of equality because unmarried individuals have a different legal status than those who have conducted a religious wedding ceremony.

Case Number E.1999/35, K.2002/104

The Constitutional Court found that the legislature could take necessary measures to reduce violence within families. Articles 1.1 of the Law on the Protection of the Family allows judges to take measures against one spouse, not both, and not against the children or members of the family, if a spouse has subjected another family member to domestic violence. The Gulyaly Peace Court found that because the Articles did not provide for an injunction or penalty if a child committed a violent act, rather than a spouse or parent, the Articles violated the principle of equality.

Case Number E.2005/151, K. 2008/37

The Constitutional Court held that a provision in the Turkish Penal Code that increases the penalty by half for the crime of laceration if committed against family members is constitutional. Although such a penalty treats family members differently than non-family members, the Court found that such differential treatment did not violate the equality principle under the Turkish Constitution. Under the equality principle, criminals who have committed the same offence may not be subject to the same penalty if they have different legal statuses.

Case Number E.2006/156, K.2008/125

The Constitutional Court found that a Labour Law that states that an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married is constitutional and not discriminatory. Under Article 14.1 of the Turkish Labour Law, an employer must pay severance to a woman who requests to terminate her employment contract within a year of getting married. The Izmir 6th Labour Court found that this provision is discriminatory under the Constitution as it treats male and female workers differently.

Nese Aslanbay Akbiyik Basvurusu, Case Application Number: 2014/5836

The petitioner filed a claim to the Turkish Constitutional Court stating that trial and appellate courts’ refusal to allow her use her pre-marriage surname after marriage violated her right to protection of her private life and discriminated against her based on her gender. Article 187 of the Turkish Civil Code requires married women to use their husband’s surname after marriage, which created complications in the petitioner’s professional life since she was known by her pre-marriage name.

The Judgment of the Constitutional Court of Turkey: Head-scarf Ban

The phrase “bare-headed” in Article 20 of the Code of Conduct, which entered into force on 26 January 1971 by the decision of the Union of Turkish Bar Associations, abolished on 5 November 2012 with the decision of the Council of State, number 2012/5257. After that, Tu?ba Arslan, who is a lawyer admitted to the Ankara Bar Association, started to attend to hearings while her headscarf is on.

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