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 at birth is different are only allowed upon verification via an official health council report that such person has undergone a gender reassignment surgery. The First Instance Court argued that requiring transgender persons to undergo gender reassignment surgery in order for their gender identity to be recognized in the legal order (for example for them to be able have identity cards reflecting their own gender and not their assigned gender at birth) is unconstitutional. However, the Constitutional Court stated that this is a constitutional restriction on the rights of persons to protection and development of their corporeal and spiritual existence (Article 17 of the Constitution) and privacy of private life (Article 20 of the Constitution). The Court reasoned that it was legitimate for the state to prohibit amendments of a person’s assigned gender in the civil registry records without gender reassignment surgery. It was stated that allowing otherwise would create (i) a difference between the biological sex of a person and the gender of such person in civil registry records and (ii) therefore potential confusions with regards to the application of the legal rules providing special measures for women. According to the Court, preventing such confusions and any possible “misrepresentations” of gender in order to benefit from such rules was a legitimate ground for the state to have this provision. As a result, the provision was not annulled.

Topics

Geographical location

Keywords

Year

  • 2017

External URL

Court

Type

Jurisdiction