One law, a thousand violations: Legal attacks on LGBTQI+ and human rights in Turkey

The “war” waged by successive governments under the ruling Justice and Development Party (AKP) against LGBTQI+ individuals is far from new. Early examples include the court case seeking to shut down the association Lambdaİstanbul, the notorious remark by former Family Minister Selma Aliye Kavaf that “homosexuality is a disease,” and the bans on Pride Marches that began in 2015 and soon became a systematic practice.

Since 2015, however, the rhetoric and tactics used by AKP governments against LGBTQI+ people have changed dramatically. What began as isolated bans and moralistic statements has turned into an organized campaign of repression. Interventions targeting the rainbow flag and other LGBTQI+ symbols, police attacks on Pride Marches marked by torture-like violence, mass detentions, and “shame walks” forced upon transpeople in broad daylight have together created a de facto “propaganda ban” reminiscent of Russia’s model. This campaign has been reinforced by an official discourse portraying the LGBTQI+ movement –and LGBT+ individuals themselves–  as a threat to national security, a danger to social values, and an assault on the sanctity of the family. In the final stage of this rhetoric, “large family rallies” were organized across the country to mobilize the public against LGBTQI+ existence and to legitimize government policy under the guise of social consensus.

Of course, this escalation of attacks on LGBTQI+ people in Turkey cannot be separated from the broader wave of anti-LGBTQI rhetoric and policy sweeping across the world. In many regions, LGBTQI+ individuals are cast as a threat to the so-called “traditional family,” pushed to the margins, and in some cases outright criminalized. This trend has become so widespread that organizations and coalitions created to shape international norms, including the Political Network for Values and the Group of Friends of the Family, are now working within the United Nations to advance a conservative agenda.

One striking example is the Geneva Consensus Statement on Advancing Women’s Health and Strengthening the Family, sponsored by the United States and Uganda and signed by 32 countries before being submitted to the UN General Assembly in 2020. The declaration identifies one of its main objectives as “to defend the family as foundational to any healthy society.”[1] It describes the family as “natural and fundamental group unit of society” that is “entitled protection by the State,” and it also emphasizes that abortion “in no case should be promoted.” In this way, the concept of “family” is turned into a political weapon, used both in shaping reproductive policy and in the wider battle over gender and LGBTQI+ rights.

As we can see, the AKP’s policy toward LGBTQI+ individuals is not an isolated development but part of a broader global wave targeting women’s and LGBTQI+ rights. What distinguishes this new wave from earlier ones is its distinctly international character. It advances an alternative normative framework that elevates the so-called “traditional family,” defined strictly as cisgender women and cisgender men, to the core of national identity. One of the most powerful tools used in constructing this framework is the law itself. As conservative groups increasingly instrumentalize international law and global institutions for their own agendas, we cannot overlook the laws and mechanisms that currently protect us, even if they do so imperfectly.

It is within this context that this article examines the provisions in the 11^th Judicial Package that criminalize LGBTQI+ existence, assessing them through the lens of international law. The first part of this two-part analysis focuses on the draft’s provisions targeting trans individuals.

A legal absurdity: Omnibus bills

Following the principle that “procedure determines substance,” which underscores the primacy of proper legal process, it is essential to point out from the beginning that the bill’s structure is highly irregular and inconsistent with democratic norms of legislation. In fact, the draft law presented to the public is a methodological aberration. The legislative technique used here, commonly referred to as an omnibus or package bill, groups together proposed amendments to multiple laws regardless of whether they bear any relation to one another. This approach folds provisions with no shared subject or purpose into a single, unwieldy text. The result is a process that restricts the legislative will of the Grand National Assembly of Turkey, the body designated as the source of law, while also making it nearly impossible to monitor violations of parliamentary procedure. Scholars and legal experts have long debated this technique, arguing that it breaches both the internal rules of the Grand National Assembly and the Constitution itself, and that it runs counter to basic democratic and legal principles.[2]

The bill introduces a series of amendments to both the Turkish Civil Code (TMK) and the Turkish Penal Code (TCK) that are directly relevant to the issues examined in this article. The first amendment, set out in Article 7 of the bill, concerns the provision on gender reassignment in Article 40 of the TMK. Under the current law, the minimum age for gender reassignment is 18. From the standpoint of legal coherence and consistency, this age requirement aligns with other provisions, since Article 11 of the TMK establishes eighteen as the age of majority.

Adulthood, the point at which a person is no longer considered a minor under the law, marks a decisive turning point for both legal capacity and criminal responsibility. Once a person turns 18, they are, assuming they have the power of discernment and are not legally restricted, fully capable of entering into any legal transaction. In criminal law, the age of 18 likewise marks the threshold for full criminal responsibility, provided the individual has the capacity for understanding and intent. From the perspective of citizenship rights, the age of 18 also signifies the beginning of the right to vote and to stand for election. Constitutional amendments in Turkey have reinforced this standard: in 1995, the voting age was lowered to 18, and in 2017 the minimum age for parliamentary candidacy was also reduced to 18.

The voting age was lowered to 18 through an amendment to Article 67 of the 1982 Constitution, enacted by Law No. 4121 on July 23, 1995. Likewise, the minimum age for parliamentary candidacy was reduced to 18 with an amendment to Article 76, introduced by Law No. 6771 on January 21, 2017.

These regulations are also consistent with the International Convention on the Rights of the Child, to which Turkey is a party and which defines anyone under 18 as a child. The bill in question, however, abruptly raises the minimum age for gender reassignment to 25, creating a clear contradiction within the legal framework. If adopted in its current form, the bill would allow an 18-year-old citizen to vote for the president and even run for parliament, yet deny that same individual the right to determine their own gender.

Forced sterilization and non-consensual medical intervention

The draft bill in question reintroduces the requirement of permanent infertility into the law. Yet this very provision was annulled by the Turkish Constitutional Court in 2017 following a concrete norm review (E.2017/130).[3] In its ruling, the Court held that the phrase “…and is permanently incapable of reproduction…” in Article 40/2 of the Turkish Civil Code constituted “a physical and mental intervention that was not necessary,” and that there was “no reasonable balance between the restriction imposed on an individual’s bodily and moral integrity as well as private life and the objective pursued by the law.”

The Constitutional Court found that this requirement violated Article 13 of the Constitution, which sets limits on restrictions of fundamental rights and freedoms; Article 17, which guarantees the inviolability of physical and moral integrity; and Article 20, which protects the right to private life. Since Articles 13, 17, and 20, as well as Article 153 governing the binding effect of Constitutional Court decisions, have remained unchanged since 2017, reintroducing this provision would amount to a clear violation of the Constitution.

Another amendment proposed in Article 40 introduces a practice that directly violates the bodily, physical, and mental integrity of intersex individuals. If the new regulation comes into force, intersex people could be subjected to medical procedures without their consent. The wording of the draft bill explicitly creates space for “compulsory medical intervention” to be carried out on intersex individuals without informed consent. This would open the door to cosmetic or medically unnecessary surgeries being performed on intersex children without their views and wishes, or those of their parents, being taken into account.

It is well established that Article 90/5 of the Constitution stipulates that “in cases of conflict between domestic law and duly ratified international agreements concerning fundamental rights and freedoms, the international agreement prevails.” In other words, when a human rights treaty and a domestic law contradict one another, the treaty must take precedence.

Within this framework, the European Court of Human Rights plays a key role by enforcing the European Convention on Human Rights, to which Turkey is a party, and issuing binding judgments. In the ruling A.P., Garçon and Nicot v. France,[4] the Court held that states have a positive obligation, under Article 8 of the Convention on the right to respect for private life, to uphold the private lives of transgender individuals. According to this ruling, states are required to provide a procedure that enables individuals to change their legal gender and be recognized in that gender. The Court had already underscored this principle in an earlier case, Y.Y. v. Turkey,[5] where it affirmed that gender identity and personal development, including the freedom to determine one’s own gender, form an essential part of the right to respect for private life.[6]

On the other hand, any medical intervention that targets the physical and mental integrity of intersex individuals without their consent constitutes a violation of both the right to respect for private life and the prohibition of torture. Indeed, the monitoring body of the UN Convention on the Rights of the Child, the Committee on the Rights of the Child, has explicitly stated that states must ensure that children’s right to health is not undermined by discrimination based on sexual orientation or gender identity.[7] In its current form, the proposed regulation not only stands in clear contradiction to the Committee’s interpretation but also conflicts with the Convention on the Rights of the Child itself, to which Turkey is a party, and therefore violates that convention.

In light of the above, requiring sterilization as a condition for gender reassignment surgery and allowing medical interventions on the bodies of intersex people without their consent or informed participation effectively amounts to forced sterilization. When forced sterilization is tied to access to fundamental identity rights such as legal gender recognition, it not only violates an individual’s bodily integrity but may also amount to torture, particularly when it is grounded in discrimination.

The European Court of Human Rights has held that even when medical personnel do not intend to inflict harm, the treatment to which a person is subjected may nevertheless be serious enough to breach the prohibition of ill-treatment under Article 3 of the European Convention on Human Rights.[8] In 2015, the UN Human Rights Committee likewise found that forced sterilization violated Articles 7 and 17 of the International Covenant on Civil and Political Rights, which protect individuals from torture or inhuman treatment and from arbitrary interference with private life.[9] International human rights bodies have reached similar conclusions. The UN Special Rapporteur on Torture, Juan Méndez,[10] the Council of Europe Commissioner for Human Rights,[11] the World Health Organization, the UN High Commissioner for Human Rights, and multiple other institutions have all recognized forced sterilization as a form of torture.[12]

Furthermore, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which Turkey is also a party, strictly prohibits any act that inflicts physical or mental pain or suffering for purposes such as punishment, coercion, or discrimination. It is therefore self-evident that any legal provision allowing conduct that violates the ban on torture would place Turkey in direct breach of its obligations under international treaties and customary international law. Even if we were to assume, for the sake of argument, that Turkey were not a party to any treaty prohibiting torture, the prohibition itself is one of the few absolute and non-derogable human rights. In other words, it is recognized as a jus cogens norm, a peremptory rule of international law from which no deviation is permitted under any circumstances.[13]

A new barrier to transgenders’ right to health

In addition to the amendment to the Turkish Civil Code, the bill also introduces a new provision on gender reassignment under the Turkish Penal Code. If enacted, the regulation –which would become Article 93/A of the Turkish Penal Code– is titled “Unlawful Gender Reassignment.” It proposes criminal penalties for anyone who performs or undergoes medical procedures related to gender reassignment without state authorization. This punitive approach, aimed simultaneously at healthcare providers and trans people, would not only create serious barriers to trans individuals’ access to healthcare but would also violate the International Covenant on Economic, Social and Cultural Rights, to which Turkey is a party.

Indeed, the Committee on Economic, Social and Cultural Rights, the body responsible for interpreting the Covenant, defines sexual and reproductive health as an integral component of the right to health under Article 12.[14] Crucially, the Committee notes that this right is not limited to access to services; it is deeply intertwined with the legal framework and broader conditions that shape access to health. It explicitly states that legal barriers –including abortion bans, coercive consent requirements, and restrictions based on gender identity, among others– must be removed, as maintaining such barriers may amount to a violation of the Covenant. In this light, the draft regulation clearly conflicts with the Covenant and with the principles articulated in the Committee’s interpretation. Therefore, should the bill be adopted, this regulation will unavoidably constitute a breach of Turkey’s obligations under the Covenant.

The Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, to which Turkey is a party, noted in its 2012 concluding observations on Turkey that national legislation was not aligned with the principle of equality before the law under Article 26 of the Covenant or with the prohibition of discrimination under Article 2, particularly with respect to sexual orientation and gender identity. The report also emphasized that LGBTQI+ individuals already face discrimination and violence when seeking healthcare.[15] In this context, the adoption of the proposed bill would inevitably deepen discrimination against transgender individuals in particular and would amount to a direct violation of the Covenant.

In lieu of a conclusion

Requiring forced sterilization as a condition for an individual to make changes to their personal status violates their physical and mental integrity, bodily autonomy, and human dignity. This practice has been repeatedly recognized by both national and international courts and treaty bodies as a breach of the right to respect for private life, the prohibition of discrimination, and the prohibition of torture and ill-treatment. Accordingly, if the proposed amendments enter into force, they will place Turkey in violation of its erga omnes obligations under international treaties and customary international law.

Footnotes

[1] Letter dated 2 December 2020 from the Permanent Representative of the United States of America to the United Nations addressed to the Secretary-General (7 December 2020) UNGA A/75/626.

[2] Hıfzı Deveci, “Torba Yasalar ve Yasama Sürecindeki İçtüzük İhlallerinin Şekil Denetimi Sorunu” (2015) 117 TBB Dergisi.

[3] Anayasa Mahkemesi, 2017/130 Esas, 2017/165 Karar, 29.11.2017 tarih, 30366 Resmi Gazete.

[4] A.P., Garçon and Nicot v. France, nos. 79885/12 and 2 others, 6 April 2017.

[5] Y.Y. v. Turkey, no. 14793/08, ECHR 2015.

[6] Ibid §102.

[7] UN Committee on the Rights of the Child, ‘General comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24)’ (17 Apr 2013) UN Doc CRC/C/GC/15 §8.

[8] V.C. v. Slovakia, no. 18968/07, § 119, ECHR 2011.

[9] M.T. v. Uzbekistan, Communication No. 2234/2013, UN Doc. CCPR/C/114/D/2234/2013 (2015).

[10] Juan E. Méndez (Special Rapporteur), Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, (1 February 2013) UN Doc A/HRC/22/53.

[11] Commissioner for Human Rights of the Council of Europe, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe (2011), pp. 86-87.

[12] World Health Organisation, “Eliminating forced, coercive and otherwise involuntary sterilization: An interagency statement OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO” (2014)

[13] Prosecutor v. Ayyash, et al., Case No. STL-11-01/I, Interlocutory Decision of 16 February 2011 on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Appeals Chamber, Special Tribunal for Lebanon, §76; Prosecutor v. Duško Tadić (Case No. IT-94-1-AR-72, Decision of 2 October 1995 on the Defence Motion for Interlocutory Appeal on Jurisdiction, International Criminal Tribunal for the Former Yugoslavia); Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment of 2 September 1998, Trial Chamber I, International Criminal Tribunal for Rwanda.

[14] UN Committee on Economic, Social and Cultural Rights, ‘General comment No. 22 (2016) on the right to sexual and reproductive health (article 12 of the International Covenant on Economic, Social and Cultural Rights)’ (1 May 2016) UN Doc E/C.12/GC/22

[15] UN Human Rights Committee, ‘Concluding observations on the initial report of Turkey adopted by the Committee at its 106th session (15 October – 2 November 2012)’ (13 November 2012) UN Doc CCPR/C/TUR/CO/1 §8 and §10.

Tags: 11th Judicial Package, akp, discrimination, LGBTQI+ rights, transgender rights, Turkish legislation