Constitutionality Review

Provisions requested to be annulled

Article 40 § 2 of the Code, requested to be annulled, provides that where it is certified by an official medical board that a gender reassignment surgery has been performed in accordance with the purpose and the medical techniques, based on the authorization granted to this end, the court shall decide to proceed with the rectification of the civil registration records.

Article 40 § 1 of the Code provides that any person wishing to change sex may personally apply to the court seeking authorization to undergo a gender reassignment surgery; however, for such an authorization to be granted, the applicant must be older than 18 years old and she/he must not be married, as well as, she/he must obtain a report from the official medical board of an education and research hospital to certify that she/he has a transsexual tendency and that the change of sex is necessary for her/his mental health and that she/he be permanently sterilized. The phrase requested to be annulled is “…and that she/he be permanently sterilized…” therein.

Grounds for the request for annulment

1. Grounds for the request for the annulment of Article 40 § 2 of the Turkish Civil Code no. 4721

In the petition, it is maintained in brief; that according to the contested provision, where it is certified by an official medical board that a gender reassignment surgery has been performed in accordance with the purpose and the medical techniques following the court’s authorization for gender reassignment surgery, the civil registration records shall be rectified; however, protection of individuals’ physical and mental health must be assessed within the scope of the protection of physical integrity; and that therefore forcing women having transsexual tendencies to live as a woman for the sole reason that they have not undergone a gender reassignment surgery is in breach of Article 17 of the Constitution safeguarding the corporal and spiritual existence of individuals.

2. Grounds for the request for the annulment of the phrase “…and that she/he be permanently sterilized…” set forth in Article 40 § 1 of the Turkish Civil Code no. 4721

In the petition, it is maintained in brief; that one of the conditions required for authorization of gender reassignment regulated in the imputed provision is to be permanently sterilized; that therefore the transsexual persons who are not permanently sterilized do not have access to gender reassignment surgery; that this situation causes inequality between transsexual persons depending on their ability to procreate  or be sterilized; and that, however, the transsexual persons who are not sterilized should not be expected to continue their lives without undergoing a gender reassignment surgery and they should not be forced to live in this manner; which are in breach of Articles 10, 17 and 20 of the Constitution.

The Court’s Assessment

1. Application concerning Article 40 § 2 of the Turkish Civil Code no. 4721

In the provision, regarding the regulation of sex change in civil registration records, the legislator has stipulated with reference to the concept of biological sex that a transsexual person may request a change in the sex section of her/his civil registers on the condition that it is certified by an official medical board that a gender reassignment surgery has been performed in accordance with an authorization granted by the court to this end.

The condition required for changing the sex in civil registration records constitutes a restriction to the right to protect and improve one’s corporeal and spiritual existence and the right to respect for one’s private life.

A person’s civil register is formed by taking into account her/his biological sex at the time she/he was born, and according to her/his sex stated in her/his civil register, she/he exercises different rights and obligations, as provided in the legal system. On the other hand, a person’s biological sex can be changed in very exceptional situations. Under certain conditions, a person may change her/his biological sex, in other words, she/he can undergo a gender reassignment surgery.

The irreversible nature of the gender reassignment surgery and its health risks require that the conditions of such surgeries must be determined by the legislator and that the process must be supervised by the State. For these reasons, gender reassignment surgeries are subject to the regulation by the legislator with a view to maintain the exceptional nature of such surgeries and preventing them from becoming usual and common with no supervision. It is also aimed to refrain from making courts merely rubber-stamp authorities for such requests. These are the purposes lying behind the contested provision. 

The reason for a medical report indicating that a gender reassignment surgery has been performed in accordance with a court authorization in order to make a change in the sex sections of civil registers is the significance of the civil registers in view of the legal system and the protection of the public order in this sense. The restriction imposed by the provision aims the prevention of arbitrary changes in the civil registers, namely changes without undergoing a gender reassignment surgery.

Transsexual persons feel themselves as the opposite sex, differently from their biological sexes, and they identify themselves with the opposite sex. If such persons meet the conditions set forth in Article 40 § 1 of the Law, they are allowed to undergo a gender reassignment surgery with the court’s permission.

The provision imposes an obligation on transsexual persons to undergo a gender reassignment surgery in order to be able to make a change in the sex section of their civil registers. At the same time, it provides an opportunity for such persons who underwent a gender reassignment surgery to make a change in the sex section of their civil registers.

The provision does not interfere with the transsexual persons’ right to choose whether to undergo a gender reassignment surgery or not and their preferences of sex within the scope of their right to respect for their private lives. In cases where the relevant person wishes to make a change in the sex section of her/his civil register, the provision imposes an obligation to submit a report issued by an official medical board stating that the relevant person underwent a gender reassignment surgery. This restriction introduced by the provision emanates from the pressing social needs of a democratic social order, such as ensuring the civil registers to be absolute and accurate, and this restriction does not prevent the persons from changing the sex sections in their civil registers. As a matter of fact, a transsexual person who underwent a gender reassignment surgery with the permission of a court is always entitled to request a change in the sex section of her/his civil register on the condition that she/he certifies the surgery.

In addition, assumption of the fact that a transsexual person can make a change in the sex section of her/his civil register without undergoing a gender reassignment surgery will cause a difference between a person’s biological sex and the sex stated in her/his civil register. In other words, it will create a de facto legal situation that contradicts the person’s biological sex.

Further, if not gender reassignment surgery is required, a person might change his/her sex in the civil register just to enjoy or refrain from certain rights that are recognized by the legal order distinctively for the opposite sex.  This would negatively affect the social life and hence the public order, and it could create an obstacle for individuals to enjoy their rights and freedoms properly.

Accordingly, regard being had to the legal consequences of the change of sex in the civil register without a gender reassignment surgery and the problems and negative effects it may cause in public and social order, the provision does not prescribe a disproportionate restriction to the relevant persons’ right to improve corporal and spiritual existence and right to respect for private life. Besides, the provision aims to protect the public order, and it is not contrary to the requirements of a democratic social order.

In conclusion, the provision has been found not to violate Articles 13, 17 and 20 of the Constitution, therefore the request for its annulment has been dismissed.

2. Application concerning the phrase “…and that she/he is permanently sterilized…” set forth in Article 40 § 1 of the Turkish Civil Code no. 4721

The provision in Article 40 § 1 of the Law stipulates that in order for an authorization to be granted for gender reassignment surgery, the person concerned must be permanently sterilized, which constitutes a restriction to her/his right to improve her/his corporal and spiritual existence and right to respect for her/his private life.

Transsexual persons feel themselves to be of the opposite sex, differently from their biological sexes, and they may be sterilized or not. Transsexual persons who are naturally sterilized from birth or have been sterilized through surgery are allowed to undergo gender reassignment surgery if they also meet other conditions provided in Article 40 § 1 of the Law and received an authorization from the court to this end.

The conditions for court authorization for gender reassignment surgery includes permanent sterilization, which requires a medical intervention for the persons wishing to obtain such authorization. 

However, as Article 40 § 2 of the Law stipulates that the civil registration records can be rectified only if where it is certified by an official medical board that a gender reassignment surgery has been performed in accordance with the purpose and the medical techniques following a court authorization, there is no doubt that a transsexual person who is able to procreate would be permanently sterilized  as a result of a gender reassignment surgery.

In this sense, permanent sterilization, which is a result of gender reassignment surgery, is stipulated as a separate condition in the provision in order to obtain authorization from the court for the surgery. Subjecting a person, who will undergo a gender reassignment surgery, to another medical intervention before the gender reassignment surgery for sterilization constitutes an interference that is not necessary to bear on the part of the relevant person both physically and mentally. As there is no reasonable balance between the restriction imposed on the relevant person’s physical and corporal existence as well as her/his private life and the aim sought to be reached, such a restriction constitutes a disproportionate interference.

In addition, it is clear that if a person who has been permanently sterilized through a medical intervention would not be able to undergo a gender reassignment surgery for any reason, she/he would remain permanently unable to procreate even though she/he would have not undergone a gender reassignment surgery. This demonstrates that the medical intervention required as a precondition for gender reassignment surgery might have very severe and irreparable results. Therefore, the provision is not proportionate in this aspect as well.

In conclusion, the provision has been found to violate Articles 13, 17 and 20 of the Constitution and annulled.