One law, a thousand violations: An analysis of anti-LGBTQI+ legislation through the lens of legality and the prohibition of discrimination

The growing visibility of the LGBTQI+ movement, its emergence as one of the most dynamic social forces, and its increasing social acceptance have pushed the state to rethink and ultimately abandon its decades-long policy of denial. Since 2015, the politics of hatred directed at LGBTQI+ people has intensified and become more systematic. Cast as the supposed antithesis of “family,” “tradition,” “religion,” and every other ideological pillar, LGBTQI+ individuals have long been subjected to harassment by state power and the “indirect” violence of the law. Today, however, they face something even more alarming: the direct violence of the law itself. As I briefly noted in my previous article, the de facto propaganda ban targeting LGBTQI+ existence is now being expanded and transformed into a de jure ban.

This draft law, which forms part of the global wave of anti-LGBTQI+ measures and seeks to criminalize LGBTQI+ existence, includes several provisions that directly target LGBTQI+ individuals. Each of these provisions violates, in multiple ways, international treaties and established international norms that are properly binding on Turkey. Since the agreements being violated concern fundamental human rights, and since Article 90(5) of the Constitution stipulates that international human rights treaties prevail over domestic law in cases of conflict, it becomes essential to evaluate the draft through the lens of international law. In the second part of this article, I will examine the proposed amendments to Article 225 of the Turkish Criminal Code No. 5237, titled “Indecent Acts.”

Nullum Crimen, Nulla Poena Sine Lege: Whose morality does “public morality” actually invoke?

The principle of the legality of crimes and punishments –nullum crimen, nulla poena sine lege– is widely regarded as an essential safeguard for individual freedom. In a 1935 advisory opinion, the Permanent Court of International Justice underscored that, from the individual’s perspective, the purpose of criminal law is to “protect the individual against the State,” and that this protection is embodied in the maxim nulla poena sine lege (no penalty without law). The Court stressed that “it is essential for the individual to know in advance which actions are lawful and which will result in criminal liability.”[1]

The requirement of foreseeability in criminal law is reflected in the principles of lex certa (no crime without a clear law) and lex stricta (no crime without a strict law), both of which form an integral part of the nullum crimen principle at the foundation of modern criminal law. Lex certa demands that punishable acts be defined in clear, precise, and comprehensible terms. In this sense, the principle protects individuals from arbitrary state action and guarantees foreseeability when exercising their rights. After all, people can only fully exercise their freedoms if they know in advance the boundaries of lawful conduct and the consequences of crossing those boundaries.

The principle of nullum crimen was first articulated at the international level in Article 11(2) of the Universal Declaration of Human Rights.[2] Since then, it has been recognized and safeguarded in numerous international and regional instruments containing binding human rights and humanitarian law provisions. Among these are several treaties to which Turkey is a party, including the European Convention on Human Rights (Article 7), the International Covenant on Civil and Political Rights (Article 15), and the Convention on the Rights of the Child (Article 40(2)(a)).

Notably, Article 15(2) of the ECHR lists this principle among the Convention’s absolute rights, meaning it cannot be suspended even in times of emergency. The European Court of Human Rights has repeatedly emphasized that the legality principle carries “qualitative requirements,” particularly the requirements of accessibility and foreseeability, which together ensure that individuals can understand which acts carry criminal liability.[3]

The European Court of Human Rights has consistently underscored that this guarantee is a cornerstone of the rule of law and occupies a central place in the Convention’s system of protection. Even in times of war or other public emergencies, Article 15 of the Convention prohibits any derogation from this safeguard. The Court has also stressed that the principle must be interpreted and applied in a way that offers genuine protection against arbitrary prosecution, conviction, and punishment.

According to the Court, criminal laws must “be accessible to the persons concerned and formulated with sufficient precision to enable them -if need be, with appropriate advice- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” In other words, the interpretation and application of the law must provide robust and effective safeguards against arbitrary prosecution, conviction, and punishment.[4]

In a related judgment, the Court further emphasized that Article 7 embodies both the principles of foreseeability and the prohibition of analogy, meaning that criminal provisions cannot be interpreted expansively to the detriment of the accused.[5] As the Court put it, “an offence must be clearly defined in law,” a requirement that includes a person’s ability to “know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him liable.”[6]

It is, of course, unavoidable that the law contains concepts that are inherently relative. The key question, then, is whether the ambiguity in a criminal provision can be remedied through interpretation. After all, the principle of foreseeability applies not only to the drafting of legislation but also to its judicial application.[7] The European Court of Human Rights has consistently held that even the clearest legal rule will require some degree of judicial interpretation.[8] Whether an individual’s conduct is deemed punishable therefore depends both on the wording of the statute and on how the courts interpret it. In this sense, the principle of foreseeability sets the boundaries within which criminal liability can be determined.

In this regard, the draft law is far from foreseeable. This is evident even from the title of the proposed article. The term “indecent,” for instance, has no fixed meaning; it shifts from person to person and from one social group to another. Even in its current form, the provision is plainly ambiguous, and if adopted, it would become entirely unpredictable. There is simply no objective way to determine the meaning or scope of phrases such as “behavior contrary to one’s biological sex” or “public morality.”

When this ambiguity is combined with the judiciary’s arbitrary approach (including the practices of law enforcement, prosecutors, and courts) and a longstanding interpretive stance that undermines rights and freedoms in violation of both international law and ECHR jurisprudence, the draft offers no legal certainty at all. As it stands, the proposed amendment clearly violates the principle of legality, a cornerstone of criminal law protected under international treaty law and customary international law.

The consequences of embedding this level of uncertainty into law will not be limited to LGBTQI+ individuals. Such a provision could open the door to a new sphere of state control that functions as a kind of “moral policing,” operating alongside existing judicial and administrative policing. In practice, law enforcement –already required to apply the law consistently, predictably, and impartially– would be tasked with enforcing an abstract and variable notion like “public morality.” This creates a real risk of expanding the reach of the law into the realm of morality and blurring the boundaries of what can legitimately be punished.

In such a framework, the police would no longer be responsible only for upholding the law but also for safeguarding a particular moral order. The line between the objective limits of the legal system and the subjective terrain of social values would grow dangerously indistinct. The bill, as drafted, actively facilitates this erosion and, as a result, the shrinking of personal rights and freedoms.

The phrase “attitudes and behaviors contrary to biological sex assigned at birth and public morality” is so abstract and vague that any behavior or identity outside traditional gender or sexuality norms –or even one that merely questions those norms– could become vulnerable to abuse, including police blackmail, arbitrary detention, and judicial harassment.[9]

Law or outlawed: Queers are everywhere

From the colonial era to the present, the ways in which states criminalize homosexuality have shifted in language but not in purpose. Labels such as “acts against nature,” “promoting non-traditional relationships,” and “propaganda” are only a few examples of how queer existence has been framed as criminal. In Uganda, for instance, the 2023 Anti-Homosexuality Act, which mandates life imprisonment for homosexuality and the death penalty for so-called “aggravated” cases, was drafted amid rhetoric portraying homosexuality as “a symbol of all geopolitical and moral evils” threatening the nation, an alleged Western import said to jeopardize the country’s future.[10]

Homosexuality remains a criminal offense in 65 countries today. Twelve of them formally prescribe the death penalty, and six actively enforce it.[11] These laws extend far beyond punitive measures: they ban forms of relationships, restrict expression, and criminalize advocacy, pushing LGBTQI+ existence entirely outside the scope of the law — or outside national law at the very least.

Although international law does not contain explicit provisions on sexual orientation or gender identity, both are understood as discursive categories through which diversity is defined, interpreted, and regulated.[12] In practice, this means that rights protections evolve as our understanding of gender and sexuality evolves. Article 31(1) of the 1969 Vienna Convention on the Law of Treaties, which sets out the rules of treaty interpretation, provides the basis for an evolutionary or dynamic reading of treaties.[13] Building on this, the European Court of Human Rights has developed the notion of the Convention as a “living instrument,” which must be interpreted “in light of present-day conditions.”[14] These two interpretive approaches are not mutually exclusive; they reinforce each other and are often applied interchangeably.[15]

Against this backdrop, legal provisions such as those found in the draft 11^th Judicial Package violate the prohibition of discrimination as well as rights and freedoms including privacy and freedom of expression, and therefore stand in clear breach of the international agreements binding on Turkey.

The prohibition of discrimination lies at the core of human rights law. In this sense, both international and regional human rights bodies have recognized that human rights treaties also cover discrimination based on sexual orientation and gender identity. The grounds for discrimination listed in these conventions are not exhaustive; they also include forms of discrimination that do not explicitly appear in the text. For example, the UN Committee on Economic, Social and Cultural Rights made this clear in General Comment No. 20,[16] and both the Committee on the Rights of the Child[17] and the Committee on the Elimination of Discrimination against Women[18] have emphasized in their interpretations that neither children nor women may be discriminated against on the basis of sexual orientation. The UN Human Rights Committee has taken the same position in individual applications concerning discrimination.[19]

Likewise, in 1999, the European Court of Human Rights found for the first time that Article 14, the Convention’s “Prohibition of Discrimination” clause, had been violated on the basis of sexual orientation in a case involving custody rights. The Court stated that the list of protected characteristics in Article 14 is “illustrative, not exhaustive,” a point underscored by the phrase “on any ground” in the article’s wording.[20] As a result, sexual orientation is considered to fall within the scope of the prohibition of discrimination without the need for further justification.

In its General Comment No. 18, the Human Rights Committee defines discrimination as “any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.[21] Under this definition, the draft bill clearly violates the prohibition of discrimination set out in both Article 2 and Article 26 of the Covenant. Indeed, Article 2 guarantees respect for the rights enshrined in the Covenant and obliges States parties to ensure their effective enjoyment. Article 26, however, goes even further: it does not limit the prohibition of discrimination to the rights protected by the Covenant. Instead, it provides that “all persons are equal before the law and are entitled without discrimination to the equal protection of the law.”

According to the Committee, Article 26 “is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof.” This means that when adopting new legislation, States parties must take Article 26 into account. In other words, legislative action must comply with the prohibition of discrimination, which Article 26 recognizes as an autonomous and freestanding right.

It is abundantly clear that the current draft law, particularly in light of Article 26, violates the prohibition of discrimination. The bill introduces explicitly discriminatory and exclusionary provisions targeting sexual orientation and gender identity, categories that fall squarely within the scope of the non-discrimination principle. Moreover, while the explanatory memorandum of the bill frames the regulation as a way to “more effectively combat trends of erasure of difference and ungendering” and to “raise physically and mentally healthy individuals and generations, and protect the family and the structure of society,” it ultimately asserts that the primary aim is to safeguard public morality and values.

In this regard, the Human Rights Committee has stressed in both General Comments No. 22 and No. 34 that the concept of morality emerges from “many social, philosophical, and religious traditions.” As a result, restrictions imposed in the name of protecting morality cannot be grounded in “a single tradition,” since doing so would run counter to the universality of human rights and the prohibition of discrimination.[22]

Therefore, the only hypothetical way a state could lawfully criminalize sexual orientation or gender identity under international law would be to withdraw from the International Covenant on Civil and Political Rights, an option that has no valid legal foundation.[23] If the bill is enacted in its current form, the principle of equality before the law would, in practice, collapse, because the very act of criminalization is itself a form of discrimination.

The Court has consistently held that the prohibition of discrimination under Article 14 of the ECHR explicitly encompasses sexual orientation and gender identity.[24] It has repeatedly emphasized that discrimination based on sexual orientation is just as serious as discrimination based on race, origin, or color,[25] and cannot serve as a lawful justification for restricting rights.[26] According to the Court, a state’s margin of appreciation is particularly narrow when differential treatment is grounded in sex or sexual orientation.[27] In this context, it has stressed that any distinction must be justified by “particularly strong and convincing reasons,” and has ruled that differential treatment based solely on sexual orientation is incompatible with the Convention.[28] As the Court has put it, it “has consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority,” underscoring in multiple judgments that appeals to national traditions or broad social assumptions cannot provide an objective and reasonable justification for discrimination.[29]

However, Article 14 is “complementary” to the substantive rights contained in the Convention and its Protocols and applies to the exercise of those rights and freedoms.[30] This means that a violation of the prohibition of discrimination directly obstructs the enjoyment of the rights guaranteed by the Convention and necessarily results in a breach of the contracting state’s international obligations. In this regard, it is clear that enacting the draft law would have profound structural consequences. Such a regulation would not only hinder the effective exercise of rights and freedoms protected under international treaties but would also make their violation easier and more widespread. In other words, it would lead the state to breach both its positive and negative obligations under international treaty law and customary international law.

Seen from this perspective, the Court’s judgment in Bayev and Others v. Russia offers a clear example of how appeals to “public morality” and “traditional family values” can violate the Convention. In that case, three Russian LGBTQI+ activists had been fined for allegedly “promoting homosexuality to minors.” The Court dismissed all of the Russian government’s arguments in unequivocally strong terms, finding that the law stigmatized LGBTQI+ people and violated both Article 10 (freedom of expression) and Article 14 (prohibition of discrimination) of the ECHR. The Court also emphasized that the “uncertainty of the terminology used” in the law made it potentially “unlimited in its application,” leaving it open to arbitrary enforcement and abuse.[31]

According to the Court, laws of this kind inevitably lead to stigmatization, reinforce prejudice, and strengthen homophobia. It also rejected Russia’s claim that the free expression of LGBTQI+ people somehow “devalues” or harms the “traditional family,”[32] reiterating that “there is not just one way or one choice in the sphere of leading and living one’s family or private life,” and that states must remain “aware that as society develops, so too must its own policies on family and private life.”[33] Moreover, the Court stressed that moral disapproval or social sensitivity cannot serve as a legitimate basis for restricting individual rights, holding that conditioning the exercise of fundamental freedoms on majority approval is incompatible with the core values of the Convention.[34]

The rationale offered in the bill unmistakably reflects the “predisposed bias on the part of a heterosexual majority against a homosexual minority.” Such bias can never serve as a legitimate basis for differential treatment. In effect, the bill in its current form advances a homogenizing vision of society, one that is fundamentally at odds with the principles of equality and pluralism at the core of human rights law.

In lieu of conclusion

Any regulation touching on LGBTQI+ rights must comply with international human rights law. This obligation flows not only from international treaties and customary international law, but also directly from the Turkish Constitution. Moreover, basing legislation on exclusionary or discriminatory social norms such as “public morality” or the “traditional family structure” is fundamentally incompatible with the coherence and objectivity that the law requires. As outlined above, such justifications have been repeatedly rejected by both international and regional human rights bodies.

The proposed legal changes would criminalize any material, statement, or even political parties’ program that acknowledges the existence of LGBTQI+ people or defends their rights, effectively erasing LGBTQI+ existence from the public sphere and forcing them into invisibility. Beyond that, the bill would legitimize discrimination and make it an integral part of LGBTQI+ people’s daily lives.

If enacted in its current form, the bill will inevitably violate the rights to privacy, freedom of expression, freedom of assembly and demonstration, and a range of other fundamental freedoms – both individually and collectively. Even a person who behaves in a way deemed “consistent with their biological sex and general morality” would still see their rights curtailed: access to information and freedom of thought would be infringed, since anyone seeking information about LGBTQI+ rights would face severe restrictions, or even an outright impossibility, due to the bill’s prohibitions.

The draft legislation would expose not only LGBTQI+ individuals but society as a whole to legal uncertainty, censorship, and the risk of criminal prosecution. In this sense, the consequences would extend far beyond individual violations: the bill threatens to accelerate the breakdown of already weakened institutional structures that are essential for protecting and enforcing human rights.

 

Footnotes

[1] Permanent Court of International Justice, Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City [Advisory Opinion of 4 December 1935] 56-57

[2] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)

[3] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57947%22]} p 37

[4] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57748%22]} p 75

[5] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57827%22]} p 52

[6] Ibid

[7] Kafkaris v. Cyprus [GC], no. 21906/04, § 141, ECHR 2008)

[8] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-199075%22]} 59

[9] International Commission of Jurists, ‘Unnatural Offences’: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity (2017), 21.

[10] DeVos, “The Limit(s) of the Law: Human Rights and the Emancipation of Sexual Minorities in the African Continent” in Higginbotham and V Collis-Buthelezi (eds), Contested Intimacies. Sexuality, Gender and the Law in Africa (2015), 8.

[11] https://www.humandignitytrust.org/lgbt-the-law/map-of-criminalisation/

[12] M. M. Winkler, I. Bantekas, “The criminalization of sexual minorities in international human rights law: an appraisal” (2025) 25 HRLRev  1, 7.

[13] Malgosia Fitzmaurice, “The Practical Working of the Law of Treaties” in Malcolm D Evans(ed), International Law (3rd edn, OUP 2010) 188;, S T Helmersen, “Evolutive treaty interpretation: legality, semantics and distinctions” (2024) 6 EJLS 161, 166.

[14] https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-57587%22]} 31

[15] G. Ulfstein, “Interpretation of the ECHR in light of the Vienna Convention on the Law of Treaties” (2019) 24 IJHR 917, 920; E. Polgari, “The Role of the Vienna Rules in the Interpretation of the ECHR: A Normative Basis or a Source of Inspiration?” (2021) 14 Erasmus Law Review 82, 90.

[16] UN Committee on Economic, Social and Cultural Rights, “General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights)” (2 July 2019) UN Doc E/C.12/GC/20 §32.

[17] Committee on the Rights of the Child, “General Comment No. 4: Adolescent Health and Development

in the Context of the Convention on the Rights of the Child” (1 July 2003) CRC/GC/2003/4 §2

[18] Committee on the Elimination of Discrimination against Women, “General Recommendation No 28 on the core obligations of States parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women” (16 December 2010) CEDAW/C/GC/28 §18.

[19] Toonen v Australia (488/1992), CCPR/C/WG/44/D/488/1992 (10 April 1992), §8.7; Young v Australia (941/2000), CCPR/C/78/D/941/2000 (6 August 2003) §10.4; X. v. Colombia (1361/2005), CCPR/C/89/D/1361/2005 (30 March 2007), § 7.2.

[20] Salgueiro da Silva Mouta / Portugal, 1999, § 28;

[21] CCPR, “General Comment No. 18: Non-discrimination” (10 November 1989).

[22] CCPR, “CCPR General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion)” (30 July 1993) CCPR/C/21/Rev.1/Add.4 §8; CCPR, “General comment No.34 on Article 19: Freedoms of opinion and expression” (29 July 2011) UN Doc CCPR/C/GC/34 §32.

[23] The only country that has ever attempted to withdraw from the Covenant since its adoption is North Korea, and even that effort ultimately failed: ICCPR, Depositary Notification, Aide memoiré, Denunciation of the ICCPR by the Democratic People’s Republic of Korea, 23 September 1997, ref. C.N.467.1997.TREATIES-10 (Annex), [8].

[24] Alekseyev v. Russia, nos. 4916/07 and 2 others, § 108, 21 October 2010; and P.V. v. Spain, no. 35159/09, § 30, 30 November 2010; D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007‑IV; see also Molla Sali v. Greece [GC], no. 20452/14, § 135, 19 December 2018

[25] https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-109046%22]} 55

[26]https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22Smith%20and%20Grady%20v.%20the%20United%20Kingdom%22],%22itemid%22:[%22001-58408%22]} 97

[27]  X v. Poland, no. 20741/10, § 70, 16 September 2021

[28] E.B. v. France [GC], no. 43546/02, §§ 93-96, 22 January 2008; Pajić v. Croatia, no. 68453/13, § 84, 23 February 2016; Ratzenböck and Seydl v. Austria, no. 28475/12, § 32, 26 October 2017; Beizaras and Levickas v. Lithuania, no. 41288/15, §114, 14 January 2020; Pajić v. Croatia, no. 68453/13, § 84, 23 February 2016;

[29] Bayev and Others v. Russia, nos. 67667/09 and 2 others, 20 June 2017 §68; Case of Macatė v. Lithuania

App. No(s).  61435/19 §209 23/01/2023

[30] Alekseyev v. Russia, nos. 4916/07 and 2 others, § 106; Van Raalte v. Netherlands, 21 February 1997

[31] 83

[32] 67

[33] Kozak v. Poland, no. 13102/02, § 98, 2 March 2010

[34] 70

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