Kaos GL [Files]

D. Fines, Arbitrary Detention, and Abuse
Transgender people in Turkey are used to “the standard way police treat transvestites: they catch us, they beat us, and they take us to the police station or the STD [sexually transmitted disease] hospital to ‘rest’ there for a while.” Police also use the new powers in the revised police law and the Misdemeanor Law (Kabahatler Kanunu) to detain and fine transgender people, using articles on noise, disturbances, and disobeying orders against them.

Belgin, a human rights activist from Lambda Istanbul stated that “[t]hese new laws give them [the police] more control. Police are so empowered they feel they can do whatever they want.” Attorneys agreed. “With the misdemeanor law we have new problems. They [transgender people] are kept in police stations when they are caught in the street; they are subject to a 117 TRY [US$88] fine, and they keep them for five or six hours,” explained Senem, a lawyer working with Pembe Hayat, an organization based in Ankara that defends transgender people’s rights. For example, the police took Ayla to the station twice in 2007, and though not charged she was fined. “I paid 20 [Turkish] lira [US$15] in each case to be let go.”

Þule, a 26-year-old transgender woman in Istanbul, was taken to the Pýnarbaþý police station and detained at least four times in May 2007. “Each time we had to sign a report and got fined 117 TRY [US$88] for indecency. If you don’t pay, the fine keeps going up and they can arrest you.” According to the Misdemeanor Law, the person fined has 15 days to pay at the maliye vergi dairesi (tax office). If the fine is not paid within the 15 days it accrues interests. Þule lived in Izmir before moving to Istanbul. “All the people I know in Izmir have been take to the police and fined. [In Izmir] they would insult us, harass us and physically abuse us in front of the other people.”

Many transgender people complained they are targeted for fines, and police harassment, whether engaged in sex work or not. Fulden, in Ankara, told Human Rights Watch that “If a transvestite or transsexual goes out after dark, even for a social reason, they will arrest you for prostitution. So we can’t even go out with boyfriends—we can’t have real relationships—because we may lose jobs or face trouble with the police.”

Ceren, for example, told Human Rights Watch how in summer 2007 she was on her way home when “Balyoz came by my car and asked for my ID card. I showed it and they fined me, they then threw my ID and said ‘Ibne, you won’t be able to work here.’ One month ago I was fined 325 TRY [US$247] more. They caught me; they took me to the police station and there they fined me. They put me in a cell. There were other transsexuals. I was the seventh person there and they kept me for four hours. [Since summer 2007] I have paid 678 TRY [US$515].”

The harassment goes beyond the streets and reaches into private homes. Ebru recalled a dinner party in Istanbul:

In early 2007 we were about to have dinner in a friend’s house. Three or four police officers came in and asked for ID’s. They put them through the general information database [taking the IDs to the police car, which had computer connection to the general database]. We were all cleared, but they took my friend who owned the house, and another friend with her boyfriend. All were taken to the police station and charged with supplying a place for prostitution. They had to spend the night there. They were released the next day without charges.
According to Ebru’s attorney, “In court cases filed against transgender people the police often say they have proof of prostitution because condoms were found.”

The well-known transgender activist Demet Demir observed that police show an evident, general discriminatory attitude towards transgender people. “Just because we look the way we look, they fine us,” she explained. Filiz also said, “Police are softer on female sex workers, but they are really hard on transgender people who do sex work.” Vildan Yirmibeþoðlu, a member of the Istanbul Provincial Human Rights Board confirmed the unequal treatment towards transgender people, mentioning those who have to do sex work. “Transgender people,” she explained, “are not given jobs. Because they can’t find a job they do sex work. Even a lot of people who are not conservative still say that they don’t want to work or live with them. The public says they don’t want them.”

E. Client Violence, Gangs, and Impunity
On October 6, 2007, Hürriyet newspaper reported that two men knifed two transgender women in an apartment complex in Feriköy, a neighborhood in Istanbul. Simge died from a cut to the throat; Funda survived, severely wounded. According to the newspaper, they had reportedly brought the men home after agreeing on a price in Tarlabaþý Street. The men attacked them in the flat. According to Lambda Istanbul, Funda remains in hiding, afraid to talk about the experience. Lambda has not received updates on the case, nor has it received information that anyone has been arrested or prosecuted.

Transgender people in Turkey report steady abuse from the communities around them, as well as—among sex workers—from their own customers. Human Rights Watch heard stories both of individual and gang attacks, and of the authorities’ failure to investigate or respond to such violations.

In the Ankara districts of Eryaman and Dikmen between 2004 and 2007, gangs systematically targeted transgender women. The attacks were similar in both districts: unidentified men in private vehicles harassed, beat, and raped transgender people doing sex work in the areas. The assaults in Dikmen took place in 2004 and 2005; the Eryaman attacks began in April 2006 and continued until December 2007. Transgender people in these neighborhoods learned to flee at the sight of a green Ford Taunus or a white car. We also heard reports of attacks starting January 2007 in the Esat district by the same assailants known in Eryaman.

Deniz talked about her experience in Dikmen in the summer of 2004; while telling the story she was shaking:

I was hitchhiking. Two guys came walking towards me. A white car came behind me and stopped next to me. I tried to run away, but I stumbled into the guys that were walking towards me. One was carrying a scalpel, the other one an iron stick. The guy with the knife grabbed my hair with one hand and put the knife on my throat with the other. They guy with the iron stick attacked me; he hit me on my shoulder. They threw me in the car.

I was frozen. They [three men in total] took me to a parking lot in an isolated zone in Dikmen. One of the guys was caressing my face with a scalpel, then took a clump of my hair and cut it off. Two of them—the guy with the scalpel and the guy carrying the iron stick—wanted to have sex with me, but the driver, said: “Don’t touch her.” He [the driver] took me 100 meters from there and raped me, while the others waited by the car. We were there for four or five hours. They took lots of pills and were waiting for them to come down. I thought I was going to die and since I didn’t want to die I played some love games with one of them so that they would take me back where I was hitchhiking and they did.

Stories from Eryaman are similar. Ceren, 37, and Bahar, 40, along with others, faced harassment and attacks. “They would regularly say ‘Ibne, we will kill you; you can’t work here, ibne, you will die,’” said Bahar. Ceren recalled that the first time she was attacked, in April 2006, “I ran away and went to my house. I thought it was normal.” The second time, about two weeks after the first attack, “I was in the car with Bahar waiting for a red light to change. The same men stopped in another car next to us, shot in the air and threw rocks at us. This time I went to the Þehit Osman Aycý police station. I gave a statement and gave the car’s license plate number. They told me they would investigate it and sent me home.” Ceren has not heard from the police about this case since.

Bahar remembered, “[t]he situation came to a point where we traveled in cars as a group because we were periodically harassed. When attacked we would complain [to the police] and give them the license plate numbers—and then the police didn’t investigate.” “We finally decided to confront the attackers,” Ceren recalls. “They said we had to leave and give them 5 million Turkish liras.”

In January 2007, Deniz, 41, Mine, 26, and Selay, 34, were victims of a gang in the Esat district in Ankara.

We were hitchhiking in Baðlar [an avenue in Esat where many transgender sex workers work]. A green Ford stopped in front of us—a gray Opel Vectra was following us. Suddenly 9 or 10 men were jumping out of the cars. They had knives and started to attack us. We [Deniz and Mine] ran towards a restaurant nearby; Selay ran the other way. Two men followed me. I felt a stick hit my shoulder. I fell and turned around he was swinging a baton. He hit me once on my head and ran away. I stood up and searched for Mine and Selay. When I saw Mine, her leg was bleeding. Her leg had been cut with a pair of scissors.

Senem, one of Pembe Hayat’s lawyers, told Human Rights Watch, “The phone is always ringing, and the phone ringing always means bad news.” In early 2007, four men accused of being members of the Dikemen gang were captured and charged with killing several policemen. However, alleged attacks against transgender people were not investigated. This case, together with another involving men accused of kidnapping, robbing, injuring, and threatening transgender people in the Esat case, is still pending. Pembe Hayat initiated a criminal procedure against several of the men allegedly involved in the April 2006 attacks claiming damage to Bahar’s car. This case was resolved in Bahar’s favor. However, no case was initiated by the authorities regarding the attacks against Ceren. “New attacks continue,” said Senem.

Reports suggest that few complaints lead to charges or convictions. Deniz filed a complaint in the Esat police station after she was raped in 2004. Police arrested four men and released them two hours later; no judicial process was started against them. “They were all freed before I left the police station. Police told me that they didn't have adequate proof to accuse them," Deniz explained. She also complained at the Þehit Osman Aycý police station after she was knifed; the officers responded: “Leave Eryaman.” Frightened, she moved to Mersin in July 2006, a city on Turkey’s eastern Mediterranean coast and lived there for a year. One week after Mine was stabbed she went to the Çankaya police station to give her statement. The attackers have not been caught.

Transgender people claim that justice after violence is hard to find, and that victims sometimes became defendants. Giray told Human Rights Watch researchers that in late 2005, two customers attacked her after she picked them up in Hoþdere Street and took them home. “They told me to lie down on the bed. The guy on the bed started touching my breasts; then he held my throat and gagged me. The other held me down and said ‘Let’s cut her.’ They knifed me in my stomach.” Giray’s flat mate Daria heard the struggle and came to her help: Giray spent four days in the hospital after undergoing surgery for the wounds.

The police caught the suspects and Giray identified one of them three days after the incident. The first court hearing took place in November 2006. Giray said that during the hearing the attacker claimed in his defense that he thought Giray was a woman; he also accused her of trying to attack him. The judge decided to prosecute Giray in that same hearing and accused her of attacking the defendant. They were both released pending trial. In the fourth and final hearing on May 24, 2007, “I was sentenced to one year of prison, charged [with felonious injury]. He got six months,” Giray said with utter frustration. The defendant’s sentence was suspended, but Giray’s was not. “We appealed, but we are pessimistic: I think they didn’t believe our client,” said Senem, Giray’s lawyer. She added, “We later learned that they had lost the fingerprints collected and that the evidence had not been properly recorded.” The appeal is yet to be decided.


I. Discrimination and Abuse in Other Spheres

A. The Military
In Turkey, where the military is seen—and sees itself—as the guardian of Atatürkist principles, 15 months military service is mandatory for any man between 20 and 40 years of age. Article 72 of the Turkish Constitution states, “Military service is the right and duty of every Turk.”

Except for some. Turkey bans gay men from military service; it is the only member of the North Atlantic Treaty Organization to do so, other than the United States, and its ban persists nine years after the European Court of Human Rights ruled against a similar ban in the UK. Specifically, the Turkish Armed Forces Health Requirement Regulation bars people with “high level psychological disorders (homosexuality, transsexuality, transvestism).” The commentary to the regulation reads, “It must be proved with documentary evidence that the defects in sexual behavior are obvious, and that when revealed in a military context would create problems.” What constitutes an “obvious defect” or one that would “create problems” is not spelled out.

As a result of the regulation and commentary, gay men seeking exemptions are compelled to undergo psychological and, sometimes, humiliating anal, examinations based on mythologies about homosexuality. Sometimes they are also forced to produce photographs showing them as passive partners in anal intercourse.

A discharge on the basis of “psychosocial illness” also cuts off the possibility of future state employment. Private employers who seek information about potential hires will usually only be informed that the man was “unable for military service,” but even that classification can create a suspicion of homosexuality (or “psychosocial illness”), making employment difficult.

Gay men who, despite the ban, try to serve in the military fear how they will be treated in an institution which one calls both “basic to Turkish manhood, and the most powerful in the state.” Kerem told Human Rights Watch about violent harassment during his army service:

My service started… After only 15 days I understood something would go wrong. People thought I was different. I looked and spoke differently. At first they thought it was because I was from Istanbul. But then they realized it was something else. I had a friend with whom I was very close and I told him I was gay. … And then the nightmare started. Those who learned started teasing me and shouting at me. I faced lots of verbal violence. But this quickly became more aggressive, moved to a different level. I was beaten. I told the people above me. They said I couldn’t tell anyone higher, but if they heard they would make worse violence on me, maybe starve me or kill me.

Things got harder and harder. I was afraid for my life. … And therefore I did the worst thing a soldier can do. I escaped from the army. …

In military prison, he faced further abuse from other prisoners and from guards. Guards “tried to take me to the showers in the jail where the soldiers committed gang rape. The soldiers wanted to rape me; they were saying, ‘We can have some fun. We haven’t seen a woman’s face. You’re like a woman, aren’t you?’” Finally he was placed in solitary confinement. “The soldiers told the other prisoners I was gay—they gave me a nickname, pembe, pink. They shouted at me all day long. There was one toilet, not in my cell, and I was taken there once a day. The soldiers made the other prisoners stand without moving, and I went to the toilet and came back like that.”

Kerem was finally freed, but only after going through an anal examination and producing photographs of himself in anal intercourse, to “prove” his homosexuality. Such a succession of humiliations is common for men under military investigation to validate, or deny, an exemption.

The first stage is to appear before a committee of doctors at a military hospital. Yahya told Human Rights Watch, “It was very clear the doctors thought you were not normal. It is like labeling the sheep in a farm. But it isn’t sheep, it’s men.” Many men—following lore widely circulated in gay communities about how to avoid service—dress up in ways considered stereotypically homosexual. Can said, “I prepared myself and exaggerated on purpose. I felt I had to do this so that they would believe me … I got some feminine clothes and put make up, but I didn’t want to. As we walked through the hospital the soldiers verbally harassed us.”

Barbaros told Human Rights Watch,

I had to be the way they wanted to see me. They would only give me the report if I looked the way they wanted me to look. I shaved off my beard, I did my hair, I made up my eyes—I put some rouge on my cheeks. I wore a tight T-shirt and tight jeans. …. At the hospital, everyone was rude to me when I asked the way. I couldn’t stand to be in that situation for two hours and I wondered how transvestites were surviving all their lives.

The committee orders applicants to undergo personality tests, and sometimes physical examination to detect “signs” of intercourse. This can result in long periods of detention in the military hospital. The examinations often include an abusive and intrusive anal examination. As A.A. told of such an exam, he hesitated nervously. He still has difficulty putting into words what he went through two years earlier.

The psychiatrist that saw me sent me to have a rectum examination. I came into the room and there were two surgeons. They made me pull my pants down and put my arms against a bed and bend forward. After the examination I asked if they had found what they were looking for. They said “no.” I asked what was they were looking for and they said “It should look like a funnel.” They wrote a report saying that there was no proof that this person is homosexual.

Yahya described a similar ordeal:

The doctor came in and looked at my face and said the rest of his sentences without looking at my face. First, “Take your pants down.” My shirt was still covering my genitals. He told me to lift my shirt. He looked at my front, and after two seconds, “Turn around.” “Now, your front again.” He said I could let my shirt down. And told me to bend over the table, elbows on it. He was wearing a plastic glove. There, they check if your asshole is tight or not. … And with his glove, he held my ass and opened the two cheeks. I couldn’t see what he was doing. But I think he first had a look. Then put his finger on my hole and pressed it in very hard. And after it was in, he told me to contract the rectal muscle. I didn’t do it much, deliberately: he told me to do it again. I did it just a little bit: He said very rudely: “I told you to contract!” … It was very humiliating.

Yahya showed us the resulting document:

In the examination made on the patient, the two breasts look normal for a male. External genitals have a normal male appearance. …Upon the rectal touch, the ability to contract the external sphincter is somewhat lost; there are multiple anal fissures extant.
Usually the applicant is made to complete psychological tests, particularly the Minnesota Multiphasic Personality Inventory (MMPI)—and the attitudes of presiding psychologists show a conviction that homosexuality is a sickness. Deniz Yýldýz, a student who had studied psychology, told Human Rights Watch:

They gave me the MMPI. … The doctor told me “We don’t give results of the test to ‘sick people’—her words. … All the doctors made clear they thought of homosexuality as a sickness. One doctor said, he wanted to read something about homosexuality—showed me some things he had in English, by Charles W. Socarides. Finally they gave me the report. In it was written, “Psychosexual illness (homosexuality) — “psikoseksuel bozukluk [homosex].”

Oðuz was held in the military hospital for 10 days. “Involuntarily. They interviewed me over and over. They asked again and again if I shaved or waxed my body hairs. I said no, I am gay, but a gay man. I want to be with another man as a man.”

Finally, he was forced to take what was apparently sodium pentothal for a final “interview.”

One day one of the other “patients” woke me up, and said, “They are calling you. To the Cure Room. It is a bad room; they give the patients electroshock.” I was so afraid. I went there. I said I didn’t need a cure. The nurse said: “You must and you will.” Then she put an IV in my arm. “Why? What will you do to me?”

She said: “Medicine. It’ll be better this way.”

My doctor came. He said, “We will give you medicine so that you can talk. It is not hypnosis. But if you forget anything about your daily life, this will help you remember. It’s a truth serum. It will just make you feel drunk,” he said.

I counted down from 1000—I began to feel really drunk. Other patients said I was in there 45 minutes to an hour. I cried a lot. I talked about my first boyfriend who had been killed a couple of years before. I cry a lot when drunk. I know he asked me if I was passive or active, had I had sexual relations with women, had I liked sex? It was not so good for me because I didn’t know what I was saying.

Perhaps still worse, many patients are required to produce pictures of themselves engaged in sexual positions. Seyhan applied for the exemption while still identifying as a gay man, before transitioning to a transgender identity. “They asked for pictures. I had to take 40 or 50 different pictures with two different people: they were very specific,” she said. And a doctor told Barbaros: “‘You may be homosexual but the army has to document it. We can’t know on our own who is gay and who is not.’”

I was surprised, I thought they wanted an arrest report or something. And from the bottom drawer of his desk he took out some photographs. Photographs of other homosexuals who applied for the report, taken when they are having sexual intercourse or giving blow jobs. “Documents like this,” he said. … He said, “It’s enough that your face is recognizable in the pictures of intercourse. Of course, you must be in the passive position, and we don’t need to see the face of the other person.”

At first we were worried how we could get the pictures developed. We could not get them printed anywhere.. … It was very difficult when we were taking them. There was a third person who was seeing me in that position, taking the pictures. It was funny on the one hand, but very tragic on the other. I was very uncomfortable and very humiliated.

Finally I gave the doctor the pictures, and he prepared the report that was the basis for my exemption. The text said: since his childhood he feels like a woman, the way he acts, the way he walks, the tone of his voice is like a woman. And he expresses himself like a woman.

A.A., however, refused to “feminize” himself—making his exemption harder, but also making his the first known case to reach a military court

I went to the hospital to the psychiatric department and saw five psychiatrists one after the other. The last one that I talked to was a colonel. He was with two other doctors. I said, I am homosexual. He replied, “You are brave, but sincerity is not a problem for us. You can also be homosexual and be in the army. You are not feminine, you are delikanlý [manly]. I responded “When it suits you, you say it’s an illness [referring to homosexual conduct] and when it suits you say it isn’t. If it isn’t, why do you fire people from the army for this reason?” …

On January 20, 2006 we went to [a military] court to stop the procedure to take me to the army. …. On September 21, 2006, the court decided to send me to GATA Hospital for further examinations. …

Ultimately, paradoxically, evidence that he had been a victim of violence helped to prove that A.A. was gay.

I said [to the psychiatrists], “If you send me to the army I will be the first homosexual in the army.” This was my last card to play. They told me to wait out of the room, and said “Come again with documents that prove that you are gay.” I took pictures having intercourse and police reports that I had been attacked and robbed. … [Finally] the head of the department said “You’re lucky. We decided not to send you to military, you win.” I could have done other things. People dress like women but that doesn’t suit me. I thought, this is law, and this is my sexual orientation.

These stories indicate how the military clings to powerful myths about both homosexuality and masculinity itself. They show how far the most powerful institution of the Turkish state will go—investigating anuses and producing its own pornography—to adhere to its exclusive definition of the meaning of being a man.

The Turkish ban on homosexuals serving in its armed forces – labeling homosexuality a “psychological disorder” – and the intrusive and humiliating questioning it enables are clear violations of the ECHR. Indeed, Turkey is the only European NATO member to persist with such practices, nine years after the European Court of Human Rights found the UK’s ban on homosexuals serving in the armed forces—and the questioning its armed forces carried out—to violate Article 8 (right to a private life) of the Convention. In a strong opinion, the Court found that the UK could not justify its ban, and indeed should adapt similar methods to combat homophobic bullying in the army as it had already done to tackle racial and gender bullying. The Court also found the intrusive questioning of the applicants into their private lives to breach the Convention, stating in effect that there was no justification for any questioning to continue once the persons had stated that they were homosexual.

B. Psychiatry and the Medical Profession
The accounts above also reveal the persistence of prejudice in the medical profession. One prominent doctor told Human Rights Watch, “Turkish psychiatry is very conservative, very resistant to change.”

Several young people told Human Rights Watch that when their parents learned of their sexual orientation in their adolescence, they were forced to seek “treatment” from a psychologist or psychiatrist. Some, indeed, found sympathetic help. Can said that when his parents insisted he seek psychiatric help at 17, the doctor told them: “You must help him adjust to his life, support him. You cannot change him.” However, Esme—expelled from school at 16 when she declared she was a lesbian—told Human Rights Watch that the psychologist gave her anti-depressants, which he said “would cure me of being a lesbian.”

Deniz described how, when as a 16-year-old student he told his mother he was gay, “The family insisted I see a psychiatrist. And I was very willing, because I was depressed. But my problems were with my relationships with my family and friendships, not my sexuality.” He was “diagnosed” by a professor at Ankara University:

The professor met with me alone and asked me questions. He asked if I was imagining myself with men when I masturbated—he made it clear that he saw homosexuality as a sickness. … Then he diagnosed me with transsexuality! And suddenly he called two or three of his students into the room. And he asked me questions in front of them, and said here is “someone with a sexual disorder.” I don’t remember the questions—it was a really, really negative experience. Then he called my mother in, and he talked to her about hormone therapy. Eventually we found a doctor at home, in Izmir. She told me the professor was not right to diagnose homosexuality as an illness: it wasn’t treated that way by international psychiatric definitions.

Mustafa told Human Rights Watch that after a man raped him brutally, during his early twenties,

I went to a shrink, a psychologist after the event. He asked me: “How do you have sex? Why do you do it that way?” He prescribed a simple anti-depressant, and told me I was sick deep inside. In our country there is no proper counseling for gays. When transvestites or transsexuals or gays are attacked, you cannot go to a psychologist and receive sympathetic counseling.

And he added, “Many psychiatrists know nothing about this.”

They simply add to our troubles if you go to them with a problem. You cannot discharge your problems. You take drugs, build up aggression. Psychologists need training on how to deal with gays. And we need a hotline, a drop-in service, something.

This psychiatric treatment is often provided under a misperception that the sexual orientation of young people can or should be treated or cured. The use of psychotherapy to do this is contrary to human rights. The Convention on the Rights of the Child obliges States parties to take "all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence." Under article 24 of the same treaty young people have the right to health, which includes, as mentioned by the Committee on the Rights of the Child—which monitors compliance interprets the CRC—, having a supportive environment by family and others.

C. “Public Morals”: Restrictions on Association
Lesbian, gay, bisexual, and transgender activism has been publicly visible in Turkey for more than 10 years, but only after 2000 did groups move toward becoming legal entities. In 2003 there were no legally registered organizations devoted to defend LGBT rights in Turkey. Changes in the Law on Associations, easing the stipulations for recognition, made it possible for LGBT groups to achieve legal status. Yet the visibility of these groups—Lambda Istanbul and, in Ankara, KAOS-GL and Pink Life—along with that of other activists, has led to government repression. LGBT groups throughout Turkey today struggle to protect their right to exist, express themselves, and survive.

On July 1, 2007, local LGBT organizations hosted the fourth Gay Pride march in Istanbul under the slogan “Let us defend life together.” More than 1000 people walked down Ýstiklal Street, a central thoroughfare in Istanbul, marking the first time a gay pride march in Turkey drew so many. The march gave new spirit to those supporting LGBT rights. Yeþim, 33, told Human Rights Watch, “I started to think, this is a movement—before that I thought we were just little groups.”

Three months after the march, Lambda Istanbul, one of the LGBT organizations in Istanbul, appeared before a court to defend its right to exist. On October 18, 2007, its representatives appeared at a hearing before the court of first instance, an administrative court.

The Provincial Associations Directorate of the Governor’s Office in Istanbul responsible for non-governmental organizations (NGOs) demanded in early 2007 that Lambda Istanbul be shut down. The Governor ’s Office sent a letter to the group specifying that the words “lesbian, gay, bisexual, transvestite and transsexual” in Lambda Istanbul’s name and objectives are “against the law and morality,” in breach of article 56 the Turkish Civil Code and article 41 of the Constitution. The Governor’s Office also claims that the group’s name contravenes the Law on Associations because “Lambda” is not a Turkish word.
In July 2007, the local Prosecutor’s Office rejected the complaint. The Governor’s Office then took the case to a higher court, the Beyoðlu Sütlüce Court of First Instance No. 5, which held a hearing that same month and ordered a second hearing for October 2007. The hearing was adjourned pending an expert’s opinion on the definition of morality with regards to the word lesbian, gay, bisexual, and transgender.

Speaking to Human Rights Watch in October 2007, Istanbul Governor Muammer Güler acknowledged that Lambda Istanbul had legal status, but claimed that his office started proceedings against its name and purpose because those breached the law. Asked to explain this assertion, he told Human Rights Watch, “I’m supposed to apply the law, not interpret the law. The independent judiciary will decide, not us.”

Governor Güler then added that morality issues “[are] just a thing that is provided by the law. It does not affect them [the NGOs] in practice; is there anything that limits their activities?” In fact, there is. Until Lambda Istanbul’s legal situation is resolved, its uncertain legal status will continue to have political effects– some of its members fear to state their views or oppose state policies too openly – and economic limitations. The lack of official status “interferes with getting funds: embassies don’t want to fund us; we can’t even have a bank account until the situation is resolved,” Cihan, a member of Lambda Istanbul, said. It will also affect them in their work with the community. “Being an association makes people trust you,” said the director of another gay and lesbian organization, KAOS-GL. He speaks from the similar experience this group faced.

KAOS-GL and Pembe Hayat, an association that defends the rights of transgender people, faced similar threats of closure in Ankara. KAOS-GL also had initial difficulties becoming an association, registering first as a commercial company in 1999. “We had to because we were publishing the KAOS-GL magazine, and the Ankara police came and said a journal had to come from a company.”

Later, in July 2005, KAOS-GL applied to the Ministry of Interior for recognition as a nongovernmental organization. The ministry initially approved the request, but Ankara’s deputy governor, Selahattin Ekremoðlu, responded by launching a lawsuit to close the organization. In a letter dated September 15, 2005 the governor informed KAOS-GL of the legal action:

After reviewing the filing for “KAOS-GL Gay and Lesbian Cultural Research and Solidarity Organization” which was founded at G.M.K. Bulvarý No: 29/12 Demirtepe-Çankaya, Ankara:

Article 56 of 4721 Civil Code forbids “Establishing any organization that is against the laws and morality rules.” It was found that the name and the regulations of the below-mentioned organization are against the mentioned article.

Because of the breach of article 56 of 4721 Civil Code, it was decided to file a lawsuit to the Principal Registry in order to close the aforementioned organization and therefore I am requesting information from you regarding this issue.

On October 12, 2005, the Ankara prosecutor Kursat Kayral rejected the governor’s petition. He explained that the words "gay" and "lesbian" found in KAOS-GL name and charter are everyday language also used in scientific research and clarified that homosexuality does not amount to immorality. This decision should be a precedent-setting decision for cases like the one against Lambda Istanbul given that the governors’ offices accused both organizations using the same legal provisions (article 56 of the Civil Code and article 41 of the Constitution).

Pembe Hayat is registered as an association, giving it its own legal personality according to article 59 of the TCK. Senem, one of Pembe Hayat’s lawyers, recalls that they “applied [to become an organization] before the governor in the beginning of July 2006. They [the Governor’s office] presented a case to the prosecutor in October 2006 claiming that the association was against ‘morality and family structure’; they did not specify why.” The Prosecutor dropped the charges on December 2006. Nevertheless, five months later, in May 2007, the governor’s office started another administrative procedure against Pembe Hayat, this time accusing it of failing to have its first general council meeting within the time frame established by law. “We had had our general board meeting and the governor sent an official document saying that there was no problem,” explained Hakan, one of Pink Life’s lawyers: “There were no legal grounds for a fine.” At the end “[w]e got fined 500 TRY [US$381],” said Senem, one of the lawyers representing Pembe Hayat. She added that when the trial ended the judge came up to me and said ‘if I had an opportunity I would fine you one million Turkish lira’; you could see the abhorrence, the disgust on his face.”

Amargi Women Academy, a feminist organization founded in 2001, decided not to register as an association, fearing the harassment it might suffer. According to Pýnar Selek, a sociologist and editor of the journal Amargi “We are registered as a cooperative. This doesn’t fall under the Law on Associations. We didn’t register under that law, because when you are an association the governor’s office checks and oversees everything.”

The language of the Law on Associations poses no express restrictions to the formation of LGBT organizations. However, authorities in Istanbul and Ankara have shown they will use the neutral formulations of the law to restrain what they see as infectious immorality bleeding into political and social life. Ýdil Iþýl Gül, a professor of law at Bilgi University, observes that “Authorities see more people [publicly] ‘out,’ so there is more reaction. Since they are now legal organizations seeking legal recognition, the reaction is also legal [meaning that the authorities attack these organizations through the existing legal norms]. State organs have made it a legal issue, and react in a legal way.”

In some cases, police have actively harassed LGBT activists in their work. In 2001, members of the Ankara police’s Balyoz team made a pointed visit to the KAOS-GL offices: “They said they were from a special team. When we asked, ‘Are you Balyoz,’ because everybody had heard of that, they said, ‘Yes.’”

There were five of them, in plainclothes, and they showed police IDs, but never a warrant of any kind. They said they wanted to learn what was happening here. KAOS was becoming more visible; they seemed to think it was a place for transvestites, perhaps a brothel. They weren’t the big Balyoz thugs who arrest the transvestites on the street. They looked around for half an hour, checked the library. They were obviously surprised to see people in front of them saying, “OK, we’re gay, so what.” They more or less expect you to deny it, and get ready to work on that. Their attitude meant, though they didn’t say these words, “Oh, we thought you were transvestites. But you look like normal people.”

A harsher incident happened in 2002. “The police raided KAOS. This gay guy had been stabbed”:

He wasn’t stabbed here but he came to KAOS from time to time. We were in the middle of a meeting; they rang the door and shoved their way in, bringing the stabbing victim with them, and started shouting—forced us to one side of the room: “What is this? What kind of place is this? Are you ibne [faggots]? What do you do here?”

When members explained the group published KAOS-GL, “The officer asked us, ‘Why are you publishing this kind of magazine?’” The police finally left, but threatened to return—and called later to demand more information about the group. “Our lawyer had to call them and threaten them with a civil suit, because they were acting outside legal procedure.”

More recently, on April 7, 2008, between 12 and 15 men in street clothes entered the Lambda Istanbul Cultural Center, identifying themselves as members of the Financial and Moral Police. An officer from the City Department of Associations accompanied them. The police presented a warrant, but members of Lambda told Human Rights Watch they were not allowed to review it thoroughly. The officers refused to state the reason for their incursion.

Lambda’s lawyer later found the warrant was issued under article 227 of the Criminal Code, criminalizing actions that “encourage, facilitate or procure a place for prostitution.” Beyoðlu Prosecutor Serdar Gür had demanded and received the search warrant from the Magistrates' Court of Beyoðlu No. 2. According to the attorney, Lambda had been placed under surveillance since early March.

Lambda’s lawyer told Human Rights Watch the officers took records of decisions by Lambda’s governing board, a list of its members, a register of its movable property, and records of receipts and invoices. The authorities did not make a list of the confiscated material, as ordered by law.

Through court actions and police raids, the ambiguous meaning of “public morals” has become one of the major obstacles for LGBT human rights defenders in Turkey.

Although Lambda Istanbul, KAOS-GL, and Pembe Hayat seek explicitly in their charters to protect rights guaranteed in international human rights treaties, the open-ended clauses of articles 41 in the Constitution related to the protection of the family, and of Article 54 in the Law on Associations, allow Turkish authorities to attempt to curb their activities under the elastic rubric of protecting a perpetually vulnerable public and its values.

Such action violates the ICCPR and the ECHR. Under these conventions, states may restrict freedom of association only on certain prescribed grounds such as to uphold national security or public order or to protect public health or morals, and then only in particular circumstances. States are given a "margin of appreciation" in deciding what is "necessary," but the interpretation of "necessary in a democratic society" is relatively strict. Furthermore, the interpretation must take into consideration tolerance and pluralism as basic elements of a democracy, and the fact that democracy does not mean the views of the majority must prevail. It also means that restrictions must be appropriate and proportionate to the legitimate aim pursued.

Article 11 of the ECHR sets forth “the right to freedom of peaceful assembly and to freedom of association with others... .” No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” Article 22 of the ICCPR permits restrictions on freedom of association only in certain defined circumstances: where they are “prescribed by law and necessary in a democratic society” and for the “interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.”

Information gathered by Human Rights Watch illustrates how the existence of ambiguous clauses on public morality in Turkish law sets unacceptable obstacles in the path of human rights defenders. Organizations not yet registered, and unpopular causes round which movements are only beginning to form, will be deterred by the promise of similar problems in the future. People trying to access these institutions in need of protection and support, young girls and boys in particular, will also suffer. For instance, due to possible harassment by the police, organizations discourage children from participating.




D. “Obscenity” and Free Discussion of Sexuality: Restrictions on Expression
Authorities’ harassment also encroaches on LGBT groups’ ability to express themselves freely. Police practice has simply reinforced the persistent Turkish official habit of censorship. Provisions in the Constitution, the Law on the Protection of Minors against Harmful Publications, and the Law of the Press allow authorities to stop the distribution of publications, without a court order, for reasons of public order or public morals. Administrative officials must inform a judge within 24 hours, and the judge must confirm the decision within 48 hours of the original seizure. Specific articles within the criminal code are also used to restrict freedom of expression.

On July 24, 2006, the Ankara police impounded 375 issues of KAOS-GL Magazine before distribution. They accused Umut Güner, editor of the magazine and director of KAOS-GL, under article 226(2) and 11(2) of the TCK. “There is an article in a penal code about obscenity,” said Oya Aydin, KAOS-GL defense attorney “[w]hen something happens related to LGBT matters they always put it under this article. The article says you cannot publish obscene material, but what is obscene is never defined.”

The magazine issue in question focused on the relationship between homosexuality and pornography. An article by artist Taner Ceylan, “Love without Touch” (Dokunmadan Aþk) and the accompanying pictures showing male nudity, drew the police objections. “In Turkey newspapers have no problems with heterosexuals appearing naked, but they did when appearing in KAOS-GL magazine, so we argued discrimination. We also argued this was not pornography. We told this to the judge.”

On February 28, 2007, Güner was acquitted, with the court holding no offence was committed since police seized the magazine before it was distributed. The court file shows no attempt to define the “obscene,” or any discussion of a distinction between pornography and a critique of pornography. The issue of freedom of expression was not addressed.

As with “public morals,” the ambiguity in defining obscenity has been used against organizations aiming at free discussion of issues related to sexuality. Legitimate interference by authorities in the exercise of freedom of expression should be guided by international human rights standards.”
This idea is reiterated in the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, in addressing concepts such as “public health and morals.” According to the Principles, “a state which invokes public morality as a ground for restriction human rights while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community;” the Principles add that “the margin of discretion left to states does not apply to the rule of non-discrimination as defined in the Covenant.”

Democracy means free discourse. Freedom of expression applies to unpopular as well as accepted modes of speech; images and ideas that question norms central to a society or state—including those around sexuality and gender—deserve particular protection, despite opprobrium. Turkey’s progress toward democratic freedom entails an end to censorship and to the repressive regulation of ideas.


II. Specific Recommendations

To the Government of Turkey
End violence and discrimination on the basis of sexual orientation and gender identity.
• Enact a comprehensive non-discrimination law containing specific protections against unequal treatment based on sexual orientation and gender identity in all areas of life.
• Amend the Constitution to prohibit discrimination based on sexual orientation and gender identity.
• Ensure the participation of civil society, in particular that of LGBT organizations, in the development and discussion of these initiatives and reforms.
• Ratify Protocol 12 of the European Convention on Human Rights, to ensure that all people, without discrimination, are entitled to all rights set forth by law.

Eliminate vague and sweeping laws against “indecency,” “exhibitionism,” and “offenses against public morality,” which are often used to harass, arrest, or persecute people based on their sexual orientation or gender identity.
• Review the Misdemeanor Law (Kabahatler Kanunu) with a view to eliminating terms and articles that in their vagueness invite prejudicial and discriminatory application.
• Review other laws to eliminate ambiguous content and, if their inclusion is deemed necessary, to offer precise definitions of terms such as “public morals” and “obscenity.”
• Adopt policy measures ensuring protection of the rights of freedom of opinion and expression regarding issues of sexuality and gender.

Change military policy to eliminate sexual-orientation and gender-identity-based exclusion from the armed forces.
• End the ban on homosexuals serving in the armed forces, by amending the Turkish Armed Forces Health Requirement Regulation to exclude sexual orientation from the List of Illnesses and Disabilities.
• Allow conscientious objection, if compulsory military service is deemed necessary.
• End all humiliating medical examinations to test for homosexual conduct. End all questioning once a person has stated their homosexuality.
• Prohibit long periods of detention in military hospitals to test for homosexual conduct.
• Take action to identify and end bullying and harassment due to sexual orientation in the armed forces.

Ensure full respect and legal recognition for each person’s profound self-defined gender identity, as set forth in the Yogyakarta Principles, an authoritative interpretation of how international human rights law applies to issues of sexual orientation and gender identity.
• Take all necessary legislative, administrative, and other measures to fully respect and legally recognize each person’s profound self-defined gender identity.
• Take all necessary legislative, administrative, and other measures to ensure that procedures exist whereby all state-issued identity papers which indicate a person’s gender/sex — including birth certificates, passports, electoral records, and other documents — reflect the person’s profound self-defined gender identity, regardless of whether surgical or medical interventions have taken place.
• Ensure that such procedures are efficient, fair, and non-discriminatory, and respect the dignity and privacy of the person concerned.
• Ensure that changes to identity documents will be recognized in all contexts where the identification or disaggregation of persons by gender is required by law or policy.
• Undertake targeted programs to provide social support for all persons experiencing gender transitioning or reassignment.
• Ensure that such procedures are efficient, fair, and non-discriminatory, and respect the dignity and privacy of the person concerned.

Examine laws and regulations affecting sex work to ensure that they are fair, do not discriminate on the basis of sexual orientation or gender identity, and fully protect the rights of all individuals in the sex industry.
• Review the Law for Protecting Prostitution to extend the possibility of sex work to transgender people that do not have a pink card.
• Ensure that transgender people have access and are able to work safely in places authorized for sex work.
• Ensure that all persons engaging in sex work are protected against abuse or exploitation, by police or by any other agents.

Comply with the European Union Directive 2000/78/ED “establishing a general framework for equal treatment in employment and occupation.”
• Publicly endorse the directive and disseminate among all public entities.
• Eliminate the requirement of military service for men applying for state employment.
• Develop programs, in cooperation with transgender communities, to open employment possibilities outside sex work for transgender people.
• Guarantee adequate procedures of remedy and redress for people facing discrimination in employment based on sexual orientation or gender identity.
• Revise legislation to ensure that all elements of the Directive become part of Turkish law, including the shifting of the burden of proof, adequate and dissuasive sanctions, and the creation of an independent body to assist those suffering from discrimination.

Train all criminal justice system officials on principles of human rights and nondiscrimination, including those relating to sexual orientation and gender identity.
• Develop these training programs in cooperation with civil society groups, including lesbians, gays, bisexuals, transgender people, and sex workers.
Adequately investigate and prosecute crimes of violence and rape regardless of the sex, sexual orientation, or gender identity of the victim.
• Publish a directive from the Minister of Interior to the civil police and gendarmerie calling them to register and follow up on all complaints related to violence against lesbian, gay, bisexual, and transgender people.
• Follow up and report on compliance with this directive in police districts nationwide.
• Direct criminal justice officials to compile and publish disaggregated data on crimes against lesbian, gay, bisexual, and transgender people, as well as against other people targets of discrimination, including ethnic, linguistic, and religious identities.

Ensure that domestic violence protection orders under the Law on Protection of the Family are available to all family members and to same-sex partners without discrimination; Guarantee that all services for victims of domestic violence are both non-discriminatory and sensitive to issues of sexual orientation or gender identity.
• Comply with the recommendation made by the CEDAW in its 2005 report on Turkey and provide sex-disaggregated statistics and data relating to women and girls “in the judiciary, trafficked women and girls, as well as Kurdish women and other groups of women [emphasis added]” on issues related to violence committed against them.
• Issue a directive to community based services, including shelters, managed by the state guaranteeing the provision of services to all women and girls without discrimination on the basis of, inter alia, sexual orientation or gender identity.

Ensure that all associations of lesbian, gay, bisexual, and transgender people are permitted to meet, organize, obtain legal status, and share and impart information.
• Review the interpretations of “public morals” in the Law on Associations to ensure the protection of all activities in the defense of human rights.
• Ensure that children under the age of 18 have access to these organizations and are able to create their own.

Engage in a constructive dialogue with lesbian, gay, bisexual, and transgender organizations to ensure effective support of their work as human rights defenders:
• Secure trainings on the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Declaration on Human Rights Defenders) for state officials, with particular attention to the work of activists on issues of sexual orientation or gender identity as human rights defenders.
• Ensure that organizations of lesbian, gay, bisexual, and transgender people participate in and are consulted on initiatives related to human rights.

To the Turkish Medical Profession
Disavow the notion that homosexuality is a mental or physical pathology.
• Adopt and publicize ethical codes and standards setting forth the responsibilities of medical professionals when treating persons deprived of their liberty. Such codes and standards should be consistent with international standards barring the participation of medical professionals in torture or cruel, inhuman, or degrading treatment, and in non-consensual body searches of prisoners.

Appropriately punish doctors who participate in degrading medical examinations to “prove” homosexuality.

Enact standards for therapeutic interventions with transgender people, including sex reassignment surgery, in consultation with transgender people.
• Adopt and put into practice the “Standards of Care” set forth by the World Professional Association for Transgender Health.

Create standards for non-discrimination in health care provision, including non-discrimination on the basis of sexual orientation and gender identity.
• Develop these standards in cooperation with members of the lesbians, gays, bisexuals, transgender people, and sex workers organizations.
To the International Medical Profession and Bodies Including the World Medical Association and the World Health Organization
Condemn the participation of Turkish medical professionals in torture or cruel, inhuman, or degrading treatment, and in abusive and non-consensual body searches of those seeking military exemption.

To the European Union
Ensure that issues of sexual orientation and gender identity are fully incorporated into its monitoring of Turkey, and work with Turkey on adapting its laws to EU standards, and in any judicial, police, or other training funded by the EU.

Press all countries entering the accession process to bring about legislative and policy-related change on issues of sexual orientation and gender identity, taking as a model the changes recommended above.

Ensure the integration of sexual orientation and gender identity issues in all new directives relating to the implementation of Article 13 of the Treaty of Union, so that protections on those bases extend beyond the sphere of employment.


Acknowledgments

This report was written and researched by Juliana Cano Nieto, researcher in the Lesbian, Gay, Bisexual, and Transgender Rights Program at Human Rights Watch, and Scott Long, director of the program. It was reviewed and edited by Emma Sinclair-Webb, researcher on Turkey; Clive Baldwin, senior legal advisor and Joe Saunders, deputy program director. Andrea Holley, publications director; Anna Lopriore, photo editor; and Grace Choi, publications specialist provided assistance with report design and publication. Fitzroy Hepkins, mail manager, made possible the production of the report. This report was translated into Turkish by Ugur Alper.

A number of experts and nongovernmental organizations in Turkey assisted with this research. Human Rights Watch gratefully acknowledges staff members of KAOS-GL; Lambda Istanbul; MorEl; Pembe Hayat; the Van Women’s Association; and Women for Women’s Human Rights (WWHR)–New Ways for their invaluable assistance and courageous work. We also deeply thank the following people for their support during the process of researching, drafting, and publishing this report: Cihan Huroglu, Öner Ceylan, Oya Burcu, Pinar Ilkkaracan, Senem Doðanoðlu, Sinan Goknur, Ugur Alper, Zeynep Aksoy and others who do not wish to be specifically named.

Most of all, we thank the many individuals who came forward to share their experiences with us and others who offered their assistance in facilitating this research and helping to review sections of the draft report.

Human Rights Watch also thanks Iwona Zielinska and Nuray Nazli Inal for their invaluable assistance.


Appendix I: International Law:
Relevant International Legal Precedents Relating to Sexual Orientation and Gender Identity

The United Nations System
The ICCPR, which Turkey has signed and ratified, affirms the equality of all people, in its Articles 2 and 26. In the 1994 case of Nicholas Toonen v Australia, the UN Human Rights Committee, which monitors compliance with and adjudicates violations under the ICCPR, heard a complaint concerning a “sodomy law” punishing consensual, adult homosexual conduct in the Australian state of Tasmania. The Committee held that such laws violate protections against discrimination in the ICCPR, as well as article 17, which protects the right to privacy. Specifically, the Committee held that “sexual orientation” was a status protected under the ICCPR from discrimination, finding that “the reference to ‘sex’ in articles 2, para. 1, and 26 is to be taken as including sexual orientation.”

This definitive intervention by the United Nations against discrimination based on sexual orientation has had far-reaching consequences. The Committee has elsewhere found that the prohibitions of discrimination in the ICCPR place a broad mandate on states to remedy unequal treatment in all areas of life. Thus it has declared that article 26 “prohibits discrimination in law or in fact in any field regulated and protected by the public authorities.” Any state that regulates private employment, for example, therefore is responsible for offering protections against discrimination in that sphere—including protections against discrimination based on sexual orientation. The Committee has also found that the article bars acts and policies that are discriminatory in effect, as well as those that intend to discriminate.

In a subsequent decision, Edward Young v Australia, the Committee held that the Covenant required that equality in pension benefits be given same-sex partners, founding this in the protection against discrimination. This was reiterated by the Committee in X v. Colombia. The Committee called for an “effective remedy, including reconsideration of his request for a pension without discrimination on grounds of sex or sexual orientation. It has urged states to pass anti-discrimination legislation that expressly includes sexual orientation and has urged states to include in their constitutions the prohibition of discrimination based on sexual orientation. It has criticized states’ failure to protect people from sexual-orientation-based violence, saying in the case of transgender people assaulted in El Salvador that

The Committee expresses concern at the incidents of people being attacked, or even killed, on account of their sexual orientation (art. 9), at the small number of investigations mounted into such illegal acts, and at the current provisions (such as the local "contravention orders") used to discriminate against people on account of their sexual orientation (art. 26).

The State Party should provide effective protection against violence and discrimination based on sexual orientation.”

Since then, numerous UN bodies and mechanisms have addressed such discrimination in their work. The Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, for instance, has declared that

criminalization of matters of sexual orientation increases the social stigmatization of members of sexual minorities … in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life. Because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also more likely to be committed in a climate of impunity.

A lengthy statement by the UN Special Rapporteur on Torture to the General Assembly is relevant in this regard. It examines, and condemns, many of the causes and consequences of abuses detailed in this report.

The Special Rapporteur notes that a considerable proportion of the incidents of torture carried out against members of sexual minorities suggests that they are often subjected to violence of a sexual nature, such as rape or sexual assault in order to “punish” them for transgressing gender barriers or for challenging predominant conceptions of gender roles.

The Special Rapporteur has received information according to which members of sexual minorities have been subjected, inter alia, to harassment, humiliation and verbal abuse relating to their real or perceived sexual orientation or gender identity and physical abuse, including rape and sexual assault. … Ill-treatment against sexual minorities is believed to have also been used, inter alia, in order to make sex workers leave certain areas, in so-called “social cleansing” campaigns, or to discourage sexual minorities from meeting in certain places, including clubs and bars.

While no relevant statistics are available to the Special Rapporteur, it appears that members of sexual minorities are disproportionately subjected to torture and other forms of ill-treatment, because they fail to conform to socially constructed gender expectations. Indeed, discrimination on grounds of sexual orientation may often contribute to the process of the dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place. The Special Rapporteur further notes that members of sexual minorities are a particularly vulnerable group with respect to torture in various contexts and that their status may also affect the consequences of their ill-treatment in terms of their access to complaint procedures or medical treatment in state hospitals, where they may fear further victimization, as well as in terms of legal consequences regarding the legal sanctions flowing from certain abuses. The Special Rapporteur would like to stress that, because of their economic and educational situation, allegedly often exacerbated or caused by discriminatory laws and attitudes, members of sexual minorities are deprived of the means to claim and ensure the enforcement of their rights, including their rights to legal representation and to obtain legal remedies, such as compensation…

Discriminatory attitudes to members of sexual minorities can mean that they are perceived as less credible by law enforcement agencies or not fully entitled to an equal standard of protection, including protection against violence carried out by non-state agents. The Special Rapporteur has received information according to which members of sexual minorities, when arrested for other alleged offences or when lodging a complaint of harassment by third parties, have been subjected to further victimization by the police, including verbal, physical, and sexual assault, including rape.

The UN Working Group on Arbitrary Detention has affirmed that the detention of people solely on the basis of their sexual orientation violates fundamental human rights—even though the laws under which they are detained may not expressly refer to homosexual conduct.

In its General Comment 14, the UN Committee on Economic, Social, and Cultural Rights specifically noted that the relevant Covenant, which has been signed and ratified by Turkey, should be read to bar “any discrimination in access to health care and underlying determinants of health, as well as to means and entitlements for their procurement, on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation [emphasis added] and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to health.”

The UN mechanisms also touch upon the right to freedom of expression for human rights organizations working on defending the human rights of lesbian gays, bisexual, and transgender people considering “that all citizens, regardless of, inter alia, their sexual orientation, have the right to express themselves, and to seek, receive and impart information.”

The European Union
As early as 1994, the European Parliament passed a sweeping resolution calling for comprehensive anti-discrimination measures protecting sexual orientation in all member states. It called on member states, “together with the national lesbian and homosexual organizations, to take measures and initiate campaigns against the increasing acts of violence perpetrated against homosexuals.” It also called on them “to take measures and initiate campaigns to combat all forms of discrimination against homosexuals.”
In 1997, the European Union’s Treaty of Amsterdam empowered the European Council to “take appropriate action to combat discrimination based on sex, racial, or ethnic origin, religion or belief, disability, age or sexual orientation.” It was the first mention of sexual orientation in a major international treaty.

In 2000, the European Union Charter of Fundamental Rights also prohibited discrimination based on sexual orientation. In the same year, as part of the implementation of Article 13, the European Council issued a directive “establishing a general framework for equal treatment in employment and occupation” (Directive 2000/78/ED). The “Employment Directive” barred discrimination based on sexual orientation in employment across the Union, and laid down measures toward its full elimination. The Directive is part of the acquis communitaire of the Union—required to be enacted into law and policy by all member states, and required to be integrated into the legislation of new members. The European Union Charter of Fundamental Rights, also prohibits discrimination on the grounds of sexual orientation under Article 21.

At the same time the EU created a Discrimination Action Programme, to fund projects over six years to combat discrimination, including sexual-orientation-based discrimination.

The European Commission is mandated closely to monitor the steps taken by applicant countries to reshape legislation and policy in conformity with the acquis communitaire. In 2003, in its “Report on the conclusions of the negotiations on enlargement” (the “Brok report”), the European Parliament observed that “in many candidate countries situations of abuse and discrimination persist due to shortcomings in the judicial and law enforcement systems … the EU anti-discrimination acquis must be implemented as defined in Article 13 of the EC Treaty and according to the Charter of Fundamental Rights.”

The European Union’s Enlargement Commission, tasked with evaluating the progress of each candidate toward compliance and admission, has drawn up regular reports on each. In its 2004 Regular Report on Turkey—published only days after the Turkish parliament passed its diminished version of anti-discrimination protections in the Criminal Code—it noted that the country “Still lacks legislation against discrimination on the basis of all prohibited grounds, such as … sexual orientation” [emphasis added].

Similarly in its 2007 report on Turkey it stated “Transposition of the EC Directives concerning discrimination on grounds of racial or ethnic origin, religion or belief, disability, age and sexual orientation is incomplete.” It called for “[a]n effective and independent Equality Body ... to promote non-discrimination and equal treatment… .”

A 1976 directive of the European Council deals with equal treatment for men and women in employment. In 1996, the European Court of Justice—the EU’s highest judicial body—made a major decision on gender identity under this directive. It held that a transsexual—that is, a transgender person who had undergone surgical procedures to accommodate physical appearance to gender identity-could not be dismissed on the grounds of change of sex. This finding protected the employment rights of post-operative transgender people throughout the European Union.
The Council of the European Union has also issued directives seeking to guarantee non discrimination. For instance, Council Directive 97/80/EC determines that “indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex” and shifts the burden of proof in cases of discrimination based on sex in civil and administrative procedures.

The Council of Europe
In three successive decisions, Dudgeon v United Kingdom (1981), Norris v Ireland (1988) and Modinos v Cyprus (1993) the European Court of Human Rights held that laws criminalizing consensual homosexual conduct violated the right to privacy, protected in Article 8 of the ECHR. It did so in language relevant to the moral defenses of discriminatory conduct often heard worldwide. Thus in Dudgeon, the Court held that laws penalizing homosexual conduct could not be held “necessary in a democratic society,”

Although members of the public who regard homosexuality as immoral may be shocked, offended, or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved.

In Norris, the court held that “such justifications as there are for retaining the law in force unamended are outweighed by the detrimental effects which the very existence of the legislative provisions can have on the life of a person of homosexual orientation.”

Subsequently, the European Court of Human Rights has used defenses for private conduct and private life to strike down discriminatory provisions. In Smith and Grady v. United Kingdom and Lustig-Prean and Beckett v United Kingdom, it held that a ban on homosexuals in the military was incompatible with respect for their private life. The Court held that concerns about “operational effectiveness” were based only on “negative attitudes of heterosexual personnel”:

To the extent that they represent a predisposed bias on the part of a heterosexual majority against a homosexual minority, these negative attitudes cannot, of themselves, be considered by the Court to amount to sufficient justification for the interferences with the applicants’ rights … any more than similar negative attitudes towards those of a different race, origin, or colour.

Meanwhile, in Karner v Austria, in 2003, the Court held that denying the same-sex partner of a deceased man spousal benefits violated anti-discrimination provisions in the ECHR. It made the same finding in two cases, L and V v Austria and S.L. v Austria, both also in 2003, holding that a different age of consent for homosexual and heterosexual relations breached protections against discrimination.

In 2002, the European Court struck a major blow against discrimination based on gender identity. It reversed previous decisions and held, in Goodwin V. United Kingdom as well as I v. United Kingdom, that the United Kingdom’s refusal to change their legal identities and papers to match their post-operative genders violated their right to respect for the private lives (as well as their right to marry). It stated resonantly that:

In the 21st century, the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy … Society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.

In 2003, in Van Kuck v Germany, the Court considered the case of a transsexual woman whose health insurance company had denied her reimbursement for costs associated with sex-reassignment surgery. The Court found a violation of respect for private life; it stated that the decision denied “the applicant’s freedom to define herself as a female person, on of the most basic essentials of self-determination.” It also noted that “the very essence of the Convention being respect for human dignity and human freedom, protection is given to the right of transsexuals to personal development and moral security.



Appendix II: Letter to the Commissioner of Istanbul Security Directorate



March 1, 2008

Mr. Celalettin Cerrah,
Commissioner of Istanbul Security Directorate
Ýstanbul Emniyet Müdürü
Ýstanbul Emniyet Müdürlüðü
Vatan Caddesi
Fatih
Istanbul
Faks: + 90 212 635 1832

Dear Mr. Celalettin Cerrah:

I am writing to you on behalf of Human Rights Watch, an organization based in New York City. With offices around the globe, we are devoted to exposing human rights violations throughout the world. Turkey is part of a much larger body of work that encompasses more than 70 countries worldwide. We have done extensive work on human rights abuses by the governments of the United States and European Union member states. To maintain our independence, we are a wholly private organization, accepting no funds from any government directly or indirectly.

The particular reason for this letter is in relation to research Human Rights Watch is conducting on the situation of lesbian, gay, bisexual and transgender (LGBT) people in Turkey. Through it we seek your response to various reports our organization has received regarding incidents involving members of the police force employed in Istanbul.

We have received information that members of the LGBT community have been subjected to attacks by members of the police forces in Istanbul. Please find enclosed questions related to the incidents reported to our organization. We would like to know if you have been conducting internal enquiries into such allegations and if you have taken disciplinary action in any cases. We would also like information of whether criminal proceedings have been initiated in any cases, if any police officers have given statements to the public prosecutor in the course of preliminary investigations into complaints, and of the outcome of such criminal investigations.

In addition, I am hoping that you will be able to provide some information on specific reports about policing in Istanbul as it affects the LGBT community, and have included some further questions on this subject.

Human Rights Watch is committed to producing material that is well-informed, accurate and objective. We regard it as highly important to reflect the views of official bodies and government authorities in our reports and to give them the opportunity to respond to information about human rights violations that we receive. We would like to be able to include your views in our report and would therefore appreciate your response to this letter by March 31, 2008.

Sincerely,

Juliana Cano Nieto
Researcher
Lesbian, Gay, Bisexual, and Transgender Program

C.C.

Mr Beþir Atalay, Minister of the Interior, Ankara




Appendix III: Letter to the Superintendent of the Beyoðlu District Security Directorate



March 1, 2008

Mr. Tuðrul Pek,
Superintendent of the Beyoðlu District Security Directorate
Beyoðlu Ýlçe Emniyet Müdürü
Beyoðlu Ýlçe Emniyet Müdürlüðü
Tarlabasi Bvl
Istanbul
Faks: + 90 212 253 7110

Dear Mr. Tuðrul Pek:

I am writing to you on behalf of Human Rights Watch, an organization based in New York City. With offices around the globe, we are devoted to exposing human rights violations throughout the world. Turkey is part of a much larger body of work that encompasses more than 70 countries worldwide. We have done extensive work on human rights abuses by the governments of the United States and European Union member states. To maintain our independence, we are a wholly private organization, accepting no funds from any government directly or indirectly.

The particular reason for this letter is in relation to research Human Rights Watch is conducting on the situation of lesbian, gay, bisexual and transgender (LGBT) people in Turkey. Through it we seek your response to various reports our organization has received regarding incidents involving members of the police force employed in the Beyoðlu district.

We have received information that members of the LGBT community have been subjected to attacks by members of the police forces in the district of Beyoðlu. Please find enclosed questions related to the incidents reported to our organization. We would like to know if you have been conducting internal enquiries into such allegations and if you have taken disciplinary action in any cases. We would also like information of whether criminal proceedings have been initiated in any cases, if any police officers have given statements to the public prosecutor in the course of preliminary investigations into complaints, and of the outcome of such criminal investigations.

In addition, I am hoping that you will be able to provide some information on specific reports about policing in the Beyoðlu district as it affects the LGBT community, and have included some further questions on this subject.

Human Rights Watch is committed to producing material that is well-informed, accurate and objective. We regard it as highly important to reflect the views of official bodies and government authorities in our reports and to give them the opportunity to respond to information about human rights violations that we receive. We would like to be able to include your views in our report and would therefore appreciate your response to this letter by March 30, 2008.

Sincerely,

Juliana Cano Nieto
Researcher
Lesbian, Gay, Bisexual, and Transgender Program

C.C.

Mr. Celalettin Cerrah, Commissioner of Istanbul Security Directorate, Istanbul
Mr Beþir Atalay, Minister of the Interior, Ankara