TURKEY: DISCRIMINATION OF SEXUAL ORIENTATION AND LAW REPORT
October 2008
Below is the report issued by Kaos GL regarding legal framework in Turkey for discrimination based on sexual orientation.
Preface
Introduction to the Report
Part 1 - Discrimination of Sexual Orientation in Constitution
Part 2 - Discrimination of Sexual Orientation in Labor Law
Part 3 - Discrimination of Sexual Orientation in Criminal Law
Part 4 - Common Law and Homosexuality
Part 5 - Military and Homosexuality
Conclusion
DISCRIMINATION OF SEXUAL ORIENTATION AND LAW REPORT
October 2008
PREFACE
Kaos GL has been struggling since 1994 not only for homosexuals but also for the freedom of the human beings. We know that some portion of community can not have freedom and find solutions to their problems indifferent of others. Therefore, we are struggling for a communal transformation as much as possible. We want a rainbow in which everyone can breath safely.
Sometimes our voice might not be as strong as desired in relation to life and freedom. However we try to find "How can we make our voice come about stronger?" Since we know that no organisation individually can achieve the war for human rights, we have been cooperating with lesbian, gay, bisexual and transgender (LGBT) organisations and human rights organisations.
We can say that this book has appeared as a result of our trials on creating a common ground for the fight of human rights. "What type of legal frame is present for the homosexuals?", "What does this legal framework stand for in the lives of homosexuals?". Basically this book tries to find clear answers to these questions. We need to underline it once again that the answers of these questions are not lying under the pages of this book but only possible with the creation of a common fight for human rights.
The "Discrimination of Sexual Orientation and Law Report" of Colours of Life Project which has been carried out in the scope of Campaign 2 of Kaos GL Association European Union Human Rights and Democracy Program, has been submitted by Lawyer Oya Aydýn.
In the framework of Colours of Life, "Our rights survey" has been performed aiming the homosexuals. In this survey, the fields in which homosexuals experience most problems are criticized.
"Have you ever been subject to physical violence because of your homosexual identity?" was the first question of the survey. We have pointed out these issues as fields of possible physical violation; family, business life, social life and military for males. Out of 1000, 554 people have answered this question. 50 of these have replied family, 12 have replied business life, 200 have replied in social life, 10 have replied in military process and 24 have replied education life. However most of the participants stated "We haven't come up with any physical violation; yet, should we had been open homosexuals we could have been subject to physical violation."
The second question was "Have you ever been subject to discrimination other than physical violence?". Most of the participants who have aswered this question have stated that they have been subject to discrimination in social life, family, business life, school and during their military period.
Those people stated that they could fight for their rights; they have been fined because of their homosexuality and that they are not utilizing their ways of defending their rights since they think that they are going to be unfairly treated.
They have also stated that those who applied for legal ways have always been judged against and have been subject to various discriminations during their search for legal rights.
The violation of human rights of the homosexuals are not limited to torture and unpleasant treatment. Besides this, violations may start with the denial of the citizenship rights of us, as homosexuals. We might encounter violations of human rights and discriminations because of daily arrangements and applications in most basic human rights like education, health, business and accommodation.
This report includes the results of the research of law which has been carried out in the scope of Colours of Life Project, prepared by Attorney Oya Aydýn.
This book is the first step of the monitoring and assessment processes of Kaos GL performed in the field of human rights and law. During the further period – for the traceability of the legal process- I believe that this book will be a very important source of reference.
With the hope of having brighter days under the rainbow.
Umut Güner
Kaos GL Association
October 2008
INTRODUCTION: DISCRIMINATION OF SEXUAL ORIENTATION AND LAW REPORT
In the sense of being subject to an unusual approach just because of difference in one's sexual orientation, the discrimination of sexual orientation in Turkish Law has been brought to discussion thanks to some organisations carrying out studies in this regards in recent years. The parties of the discussion were the organisations defending the homosexual rights and judicial bodies because of the jurisdictions coming about in parallel to the development of homosexual movement and narrow academical parties. The judicial bodies, executive authorities and other democratic mass organisations are insistently keeping away from being the parties of this discussion.
This present legal discussion, to a large extent, has been driven according to the demand of arrangements on protection against negative discrimination towards homosexuals (prohibition of discrimination) and the right to associate. The demands of gaining equality in every field of life like marriage, inheritance etc. has not yet been given voice to.
In the basis of principles of equality, the right of claiming the equal level of use in social and human rights of people who have different characteristics has been evaluated almost as “luxury”. In a situation that the demands of equality has not been uttered, it is pointless to say that there is no demand in positive discrimination (affirmative action) within the context of first protecting and caring the ones who are/or been made socially more delicate.
Following this general introduction, starting from the fundamental law text as being the basic structural document and the positive law source, related to the homosexuality issue, how it has or has not been regulated in relevant legal areas will be defined and finally will try to reflect the current state by giving examples in the legal applications.
PART 1: DISCRIMINATION OF SEXUAL ORIENTATION IN CONSTITUTION
There is no positive or negative arrangements about homosexuality or sexual orientation in the 1982 dated Turkish Republic constitutional charter. It is been arranged at the 10th article regarding equality.
According to the constitutional charter’s 10th clause about equality :
“Every individual is equal in the legal practices without discrimination in language, race, color, sex, political view, philosophical belief, religion, religious practice and similar reasons.”
We can notice from the clause that the fact of “sexual orientation” has not been covered where the reasons of discrimination such as “language, race, color, sex, political view, philosophical belief, religion, religious practice” has clearly been identified. But the phrase “...and similar reasons” from the clause could be widely interpreted in order to assess the sexual orientation discrimination within this clause’s extent.
Another matter in the constitutional charter that indirectly concerning homosexuals is the phrase of “public morality” as standing one of the reasons of limitations in basic rights and freedoms. Ýn order to eliminate the problems in this phrase regarding homosexuality as an act against moral values in our legal practice, it is one of the homosexuality organisation’s main constitutional demands to avoid interpreting against the sexual orientation and sexual identity as if damaging the prohibition of discrimination, the limitations to “morality” principles laid out in arrangements at “privacy discretion, privacy of the home, freedom of communication, freedom of press, the right to form an association, the right to organize meeting and demonstration” and “the right to establish a union”
Another important issue set out in constitutional charter concerning the homosexual males is the military service arrangements. Related constitutional norms has such a character that could actually be used as highly advanced arrangements with a libertarian legislation and adjudication interpretation.
The freedom of conscientious belief is being set out in constitutional charter’s 24th clause.
Clause 24 – Everybody has the freedom of conscientious, religious faith and belief.
…nobody could be forced to do religious exercises, to join religious rituals and ceremonies, to reveal their religious faith and belief; and could not be accused and criticized by their religious faith and beliefs.”
15th clause of constitutional charter is setting out that, even during the war times, “nobody could be forced to reveal their religious faith and belief and they could not be accused through those.”
In the clause headed as “Service to the country” says;
Clause 72 – “To serve to the country is the task and duty of every Turkish citizen. The implementation of it or how it will be implemented is set out by the laws whether at Military or public area.”
This clause is interpreted by some lawyers as it is enabling to conscientious objection issue. According to constitutional lawyer, judge Osman Can; “To serve to the country is the task and duty of every Turkish citizen. The implementation of it or how it will be implemented is set out by the laws whether at Military or public area.” judgement and the justification of this judgement as “…the frame of how to serve the country is set out by the future arrangements in law and shows the way to the legislator…” is enabling to such an interpretation. According to this; what is being accepted by the majority is actually serving the country, not only serving the Military Forces. So, to serve the country is possible at the public sector as well as at the Military Forces. The freedom of conscience without limitations, is binding categorically all government departments including legislation, judicial bodies and the Military Forces and makes serving the country as a service with alternatives. Therefore, it is clear that the constitutional choice is towards conscience belief in the discussion of military service as being only one of the ways of serving the country.
Another important beneficial issue for homosexuals in the constitutional charter is the decree on secrecy and privacy of private life. 3- Secrecy of private life,
Constitutional charter clause 20 – “Everybody has the right to demand respect to their private life and family life. Private and family life is intangible.”
Nobody personally or their personal documents or belongings could be searched and confiscated without one or more reason concerning the public security, public order, to avoid crimes, to protect public health and morality or protect others rights and freedom; and without a proper magisterial decree; and again regarding the above reasons where it can not be delayed in some certain situations.
The decision of the responsible body needs to be submitted for approval in 24 hours to the judge. And the judge has to announce his decision in forty eight hours from the confiscation; otherwise the confiscation will be void.
But it is known that this clause is not very effective in legal practise. That’s because of the affect of the limitations on “public morality” which takes place on this clause’s 2nd subclause. But, as been mentioned above, the reason of this limitation takes affect in the homosexuality’s interpretation as being immoral.
Sexual orientation is a part of the private life’s secrecy. Therefore, in the event of sexual orientation discrimination, we could rely on the rights of secrecy in private life which is set out in the constitutional charter. This right is also been set out in the 8th clause of the European Human Rights Agreement, and in the event of sexual orientation discrimination, the applicants do apply to the European Human Rights Court depending on this clause.
In the process of “New constitutional charter” discussions in different parts of the society which is been brought up by the government after 22 March 2007 elections, homosexuals have also joined the discussions with some demands. However, it can be understood that the reply of the government was negative, according to report of Bülent Sarýođlu dated 20 Ekim 2007 at Hurriyet newspaper. The statements of Dengir Mir Fýrat and Burhan Kuzu as representing the government and members of the constitutional committee shows us that there could be no improvements in the following hundred years. In one of the statement of Dengir Mir Fýrat to the newspaper he summarizes the government’s approach as;
“It is a bit difficult in the 21st century constitutional charter, maybe possible in the 22nd century. We covered subjects that we call third generation rights such as environment. But this one is a forth generation freedom. We did not consider such freedoms, and I do not think it will be accepted. It does even not take place in EU constitutional charters yet. The Europe still did not make an agreement on this. The society needs to discuss this matter more.”
PART 2: DISCRIMINATION OF SEXUAL ORIENTATION IN LABOR LAW
There is not any certain arrangements in the basic laws setting out the work life regarding homosexuality. Although, there are certain orders of European Union about this matter and it is expected from the countries in the full membership process needs to make their domestic law’s compatible with them. It is been regulated by the 2000/78/EC order that there could be no discrimination due to disability, age and sexual orientation in the work life. However, inspite of the fact that 4857 Labor Law has been in force since 2003, it does not cover any positive or negative regulation regarding this matter.
But there are indirect rules that could apply to the problems in sexual orientation at the work place. Such as :
The clause headed as “The principle of equal acts” regulates the prohibition of discrimination in work relations and the equality principle. According to that clause :
“There could be no discrimination in the work relations due to language, race, sex, political view, philosophical belief, religion, religious practice or similar reasons.”
The phrase in this clause as “…and similar reasons” should be interpreted by covering the discrimination of sexual orientation.
The general rule to end an employment contract due to the principle of prohibition of discrimination headed as “A reasonable cause to terminate” takes place at the 18th clause:
“Race, color, sex, marital status, family liabilities, pregnancy, birth, religion, political view and similar reasons” could not be a reason to terminate an employment contract, and again here the “similar reasons” phrase could well be used by the courts related to discrimination of sexual orientation cases.
In the 24th clause headed as “The worker’s right to terminate with justifiable cause” gives the workers the chance to terminate the employment contract due to a unfair act towards sexuality. According to the 24th clause :
“With or without a fixed work period, regarding the below situations, the worker can terminate the work contract before the end of the work period or without giving notice:
If the employer acts or verbally harasses the worker or any member of the workers family by touching their honour and decency or sexually harasses the worker…If the employer speaks degradingly about the worker by ungrounded attributions and accusations… If the worker faces sexual harassment from the other workers or third parties and if the employer takes no action even though he has been informed of the situation then the worker can terminate the work contract by also earning the right for compensation.”
These regulations, together with the other Human Rights Documents, give the chance to take the employer to court in the event of work contract termination through sexual orientation, earn compensation and make other claims but also; it could be interpreted as giving the worker the chance to terminate the work contract with a justifiable cause due to any discrimination reason.
Also, any act against the prohibition of discrimination is regarded as a crime according to the 122nd clause of the Turkish Criminal Law as we will mention below. This regulation enables take criminal action through director of public prosecutions in the event of discrimination in the work life.
There also can not be found a direct regulation regarding the public workers sexual orientation. However, both the disciplinary decrees in the 657 Public Workers Law and the governmental bodies disciplinary guides based on this law where “the acts of immorality which is incompatible with being a civil servant” clause is being used against homosexuals too.
In between the acts and behaviours that will cause disciplinary action in the 657 Public Workers Law’s 125th clause covers;
“To have behaviours contrasting with civil servant dignity” is being considered as one of the reasons for cautional action,
“To have immoral and indecent acts at the work place and to write, sign or draw pictures related to these acts” is being considered as one of the reasons for censural action,
In practise, the acts that will lead from civil servants depose is usually been used against homosexuals based on “to have dishonourable and discreditable behaviours which is such a low level and quality against the attribution to a civil servant.” Likewise, we can see the same approach in the disciplinary proceedings based on this rules. For example, regarding the teachers disciplinary and promotional legislation of Ministry of Education, in the 27th clause of “The primary and middle school teachers promotional or punishment law” considers one of the acts to cause of dismissal from work such as “a clear impurity which is unacceptable with the attribution of being a teacher both towards the pupil and in the outside” and therefore it has been applied to many teacher just by finding out about their homosexuality and these people have been deposed.
However, according to the similar decisions of the European Human Rights Courts, it is been accepted that the sexual life can only be interrupted when it is against the public order and other interests. These situations are the limitations regarding personal exploitation, especially towards children or limitations to keep order in the military forces. Homosexuality itself is not been considered as a reason itself dismissed from public sector jobs.
The imposition of sanctions other than the mentioned circumstances is considered as violation of the right of “private life’s secrecy and protection” which is set out by the European Human Rights Court’s European Human Rights Agreement’s 8th clause.
On 7/5/2004 that subclause has been added to the constitutional charter’s 90th clause:
“The international agreement clauses should be predicated on disagreements because of the contradictions between our laws and the international laws that includes different applications to the same issues set out in basic rights and freedom.”
Therefore, people who in domestic law, have faced discrimination of sexual orientation could seek their rights relying on the 8th clause of this agreement.
People in Turkey can apply to the European Human Rights Court in 6 months time whose cases been closed after the final hearing relying on the fact that these proceedings are a direct interference to the privacy rights set out at the European Human Rights Agreement’s 8th clause. But it is a common fact that homosexuals facing such sanctions do not tent to take legal actions and so that they do not prefer to make their problem visible to the public eye.
PART 3: DISCRIMINATION OF SEXUAL ORIENTATION IN CRIMINAL LAW
Homosexuality is not considered as a criminal act in the Turkish Criminal Law. Thus, any arrest, custody, criminal investigation or opening criminal case could not be applied to someone because of homosexual relationship.
But the arrangements regarding “personal data records” in the Turkish Criminal Law’s 135th clause, carries a disadvantageous character towards groups with different sexual orientation. According to the 135th clause;
“A person who records personal data unlawfully will be charged with six months to three years imprisonment.”
(2) A person who is unlawfully recording peoples political, philosophical or religious views, racial backgrounds; moral aptitudes, sexual lives, states of health or unionist attachments as personal data will be punished same as the decree clause as above.”
This regulation at first seems like beneficiary for the ones with different sexual orients, but after careful consideration of this clause, apart from peoples political, philosophical or religious views, racial backgrounds; it is only considered as illegal if data related to “moral aptitudes, sexual lives” is being recorded “unlawfully”. The outcome from this point is clear; the laws are somehow keeping records on some people’s moral aptitudes, sexual lives. From this point of view, it is certain that this clause is violating the “the right of secrecy and protection of the private life” which is actually been secured by the constitutional charter and international agreements.
On the other hand, some clauses in the Turkish Criminal Law about morality and sexuality concerns the homosexuals indirectly. Where, these clauses in practice is being used against the homosexuals. As an example for these regulations, could be the 225th clause of the Turkish Criminal Law about indecent exposure and publicly sexual intercourse and the 226th clause about obscenity.
According to the clause 225; “A person who publicly having intercourse or causing indecent exposure; will be prosecuted with imprisonment from six months to one year.”
According to the clause 226; “a) A person who supplies to a child products that includes obscene images, articles or words or someone who shows, reads or make them aware,
b) whom shows, displays, reads, tells or make them read and tell these contents publicly to children,
c) whom sells or rents these products in a way to enable to the content,
d) whom trading by selling or renting these products, other than shopping places made specially for them,
e) whom supplies or distributes these products free of charge or in the means of additional promotion with the main products,
f) whom advertises these products,
will be prosecuted with imprisonment from six months to two years and with administrative fine.
(2) A person who does publish products with obscene images, articles or words by using press and media instruments or who does act as intermediary to them will be prosecuted with imprisonment from six months to three years and with up to five thousand days of administrative fine.
(3) A person who deals with using children in production of products with obscene images, articles or words will be prosecuted with imprisonment from five years to ten years and with up to five thousand days of administrative fine. A person who trades in copying, importing, selling, distributing, stocking, exporting, keeping or enabling others use of them, will be prosecuted with imprisonment from two years to five years and with up to five thousand days of administrative fine.
(4) A person who trades in copying, importing, selling, distributing, stocking, exporting, keeping or enabling others use of products which has contents of images, articles or sounds of using violence, on animals or on dead human body or acts of unnatural sexual acts, will be prosecuted with imprisonment from one year to four years and with up to five thousand days of administrative fine.
(5) A person who supplies products of such as mentioned in subclause three and four, to children and who shows, reads or make them aware by using press and media instruments, will be prosecuted with imprisonment from six years to ten years and with up to five thousand days of administrative fine.
(6) Regarding these crimes, special safety measures will be applied to juridical bodies.
(7) These clauses above, does not apply to scientific works; work of arts and works which has literary value, apart from the condition in the third clause and in condition with avoiding the reach of them to the use of children.
In these clauses, there is no limitation of man, woman or homosexual. But in practise, publications about homosexuality, is considered different from man-woman relationships and the publications with scenes of homosexuality, is directly regarded as obscene.
This condition is caused by the so common definition of indecent exposure and obscenity in the criminal law, but also caused by the mentality in the practise.
Even two men’s walking hand in hand could be well seen as indecent exposure indecent exposure or shameless act by some people. Whereas, the same clauses are interpreted quite in detail to heterosexuality and the measures of use of children, sexual assault or violent acts do not apply.
In criminal law, there are also some arrangements that could be used beneficiary to homosexuals. One of those is in the 3rd clause set out in the practise of criminal law related to prohibition of discrimination. According to this clause;
“The prosecution and security matters will be ruled by considering the proportional seriousness of the act regarding the person who commits the crime.”
In the application of criminal law, there could be no differentiation in regarding people’s race, language, religion, religious practice, nationality, color, sex, political views, philosophical beliefs, national or social identity, birth, economical or other social status and no one person will be given privilege.”
“…other social status” phrase in this clause, could be interpreted by covering the discrimination of sexual orientation too.
Another clause with beneficiary use is the 122nd clause headed “prohibition of discrimination” which regards discrimination as a criminal act. According to this;
“A person by causing discrimination between people about language, race, color, sex, disability, political view, philosophical belief, religion, religious practice and other similar reasons; (1)
a) Due to above reasons; who prevents the sale or transfer of an absolute or real property, and prevents the carrying out or benefiting from a service or someone’s getting or not getting a job,
b) who will not give the commodities or refuse to give a service in public exposure,
c) who prevents someone’s ordinary economical activity,
will be prosecuted with imprisonment from six months to one year and with administrative fine.”
“…other similar reasons” phrase in this clause, could be applied to the discrimination of sexual orientation too.
Bringing the criminal action to court, in theory, by taking legal action seems possible against someone who has caused discrimination through sexual orientation. But level of reality in this argument’s practise is yet unknown.
In spite of the intensive efforts and demands of homosexual organisations while setting the rules in criminal law, the “sexual orientation” phrase is not being included in the 122nd clause as headed “prohibition of discrimination”. It is once came to order during the preparation period but then there has no regulation been set out afterwards. Other than that, the demand for consideration of hatred and discrimination against homosexuals as a separate criminal issue, has never had any grounds on the judicial bodies. However, Turkish criminal law, same as the Labour Law was recently being produced, in 2004, where especially membership process for European Union was really live.
Another point to be careful at, is the phrase of “...with similar reasons”, regarding sexual orientation, could more easily find grounds in practise, where it could not find easy grounds in practise in criminal law due to its principle of legality, that means one crime could not be regarded as a crime unless it has clearly set grounds. Therefore, it seems there should be seperate and special regulations set for criminal law.
PART 4: COMMON LAW AND HOMOSEXUALITY
Civil Law is made up of several parts; such as Personal Law, Family Law, Law of decendent's estate, Real Law. The regulations in the personal law part of the civil law, regarding the right to form associations, carries utmost importance for homosexuality. The regulations set out about the subject is:
Clause 47 – “The group of individuals specially organised to form a separate body and independent group of assets specifically organized for a certain purpose, will gain corporate legal personality by the regulations set out specially for them. But the group of individuals and assets can not gain corporate personality which have aims against the common laws and morality.”
Clause 56 – “Assosiations are group of corporate bodies, formed by real or corporate with at least seven personalities without the aim to share profit, and sharing their expertise and efforts continuously in order to achieve a certain purpose. Assosiations can not be established in terms of unlawful or immoral purposes.”
Clause 89 – “If the purpose of the association becomes unlawful or immoral, by the wish of the public prosecutor or the demand of another relevant person, the court may decide for the termination. The court will then take any measure including detention of any activities during the case.”
Clause 101 – “Foundations are group of assets with corporate personality formed by real or corporate personalities putting certain amount of assets and rights in a certain and continous way to achieve a cetain purpose.
The whole or part of a list of assets or its rights of certain income or economical value could be dedicated for the foundation. There could be no membership in foundations.
Foundations can not be formed against the Republic’s specified attributions by the constitutional charter, and against the main principles of the constitutional charter, against law, morality, national solidarity and national interests or in order to support members of certain groups or communities.”
When we look at those clauses, it could be hard to make the connection with the homosexuality. But, homosexuality itself is regarded as a state against morality in legal practises and by this way, it is limiting the freedom of association of the homosexuals. (refer to the case of Kaos GL and Lambdaistanbul.)
According to the sections of family law in the Civil Law’s 182nd clause;
“While a court decides on divorce or separation, after listening to the mother and father if possible and then setting out the personal relations of the mother and father with the child, after getting the thoughts of the guardian and the guardianship authority, if the child is under legal guardianship. The benefits of the child considering especially the education, health and morality issues when setting out the personal relationship of the parent who did not obtain the guardianship. This parent will need to involve in the care and educational expenses as a reasonable level. The judge can decide of the payment settlements to be paid according to the parties’ future social and economic situation if it is demanded.”
The phrase of “morality” is also being used against homosexuals. In a contentious case, it could be said that there is no possibility of the guardianship’s being honoured to a homosexual parent. A decision made in 1982 by the Court of Appeal, regarding this issue, clearly shows the approach of laws, that a lesbian mother could not be given the guardianship of her child due to “her life against the common morality.”
Other than that, neither marriage issue in family law nor legal hereditary issue in the law of decendent's estate do not have a regulation regarding homosexuals.
The marital rights do not cover same sex people. It is also not an issue for homosexual couples regarding social security rights and similar benefits of the families.
There is no special regulations towards the right of adoption. According to the Civil Law, anybody single over the age of 30 could adopt a child. Thus, a homosexual person could adopt a child too. But, in the process of the adoption, while the stage of courts supervision, if the homosexuality is being announced and if it seen as a contradictory circumstance for the child’s benefit; the court then may reject the adoption application.
Legal heir is also not an issue according to homosexual relationships. But people can dispose of their property the way they wish to, and leave their properties through their will to any people that they would like to. Since hereditary portion (legal inheritors share) holders can apply through court against the decision of the property left through the will.
In this case, the rate of the hereditary portion will be deducted from the will amount and the rest of the amount will be valid.
According to the family law, European Human Rights Court, prefers to leave the solutions to the countries domestic laws about the applications related to the issues such as marital rights and benefits of social security etc.
PART 5: MILITARY AND HOMOSEXUALITY
In the part regarding the constitutional charter, we have told that the service to the country is set out on the 72nd clause and the implementation of it or how it will be implemented is set out by the laws whether at Military or public area; and that will not necessarily mean military service.
As mentioned before, this decree in constitutional charter, is being interpreted by some lawyers as it is enabling to conscientious objection issue. But this interpretation do not find necessary grounds in legislation and adjudication levels, therefore still makes the military service compulsory.
On the other hand, homosexuality is judged as an illness unfavourable for military service. There is a list of illnesses and disabilities in the 17th clause if the Military Forces Health Capacity Regulations numbered 19291 dated 24/11/1986.
This clause’s (B) item’s 3rd subclause expresses of the “Psychosexual defects” and (D) item’s 4th subclause expresses of “exceeding psychosexual defects”.
Homosexuality is considered as psychosexual defect at the Military Forces. In this case, it must be an issue that the homosexual person should not join the Army by obtaining a homosexuality report from the psychology department. But, to benefit from this clause is tied to certain conditions. That is, the sexual behavioural defects should be exceedingly obvious although their life, and it should be determined with observations and documents that his joining the army will cause or causing an unfavourable situation.
This regulation is causing in practise, some injury of personal rights, such as their asking for pictures of sexual intercourse as proof. Also, their seeking for “feminine” acts and look and only giving the report to the ones so called “passive”, not to the others and causing them to join the army. However, people who can’t manage to obtain the report even though being homosexual may take it to the High Military Administrative Court and have the chance to cancel the report of suitability to join the army.
The military psychology in Turkey still functioning this way and instead of the American Psychiatry Union’s criterias of DSM-IV which defines the psychiatric defects and is widely accepted around the world, we have accepted the same unions DSM-II criterias and regarded homosexuality as an illness. But, homosexuality is already been taken out from DSM-II’s list as an illness in 1974.
There are also other regulations in serving the army and military discipline laws that concerns homosexuals apart from serving their country. For example; the 162nd clause of the Military Penal Law says that a person acts against “military morality” may be punished by the commander. Here, according to “definition of military morals” this may be possible in any state that reflects the homosexuality.
CONCLUSION
This study covered the regulations in some legal aspects that directly affecting the daily life’s of the homosexuals.
But other than those, the phrase of “public morality” as being used as a general limitation in several laws such as; 40. clause of Military court of Appeals Law, 17. clause of Solicitors Law, 3. clause of Law of Press, 11. clause of Judges and Attorney’s Law, 25. clause of Condominium ownership Law, 8. and 9. clauses of Police Duty and Entitlement Law, 5. clause of the 3984 Radio and Television Establishment and Broadcasting Rights Law, 3. clause of the Cinema Movies Evaluation and Classification Law, 3. clause of Works of Cinema, Video and Music arts Law, 78. clause of the Political Parties Law, and so that the above phrase as being considered as a state against the morality carries a potential to be widely used against homosexuals.
Therefore, it is very important to prohibit the discrimination of sexual orientation in our constitutional charter and to establish this discrimination as a crime in the criminal law, in order not to use phrases such as “against morality” against the homosexuals.
Below is the report issued by Kaos GL regarding legal framework in Turkey for discrimination based on sexual orientation.
Preface
Introduction to the Report
Part 1 - Discrimination of Sexual Orientation in Constitution
Part 2 - Discrimination of Sexual Orientation in Labor Law
Part 3 - Discrimination of Sexual Orientation in Criminal Law
Part 4 - Common Law and Homosexuality
Part 5 - Military and Homosexuality
Conclusion
DISCRIMINATION OF SEXUAL ORIENTATION AND LAW REPORT
October 2008
PREFACE
Kaos GL has been struggling since 1994 not only for homosexuals but also for the freedom of the human beings. We know that some portion of community can not have freedom and find solutions to their problems indifferent of others. Therefore, we are struggling for a communal transformation as much as possible. We want a rainbow in which everyone can breath safely.
Sometimes our voice might not be as strong as desired in relation to life and freedom. However we try to find "How can we make our voice come about stronger?" Since we know that no organisation individually can achieve the war for human rights, we have been cooperating with lesbian, gay, bisexual and transgender (LGBT) organisations and human rights organisations.
We can say that this book has appeared as a result of our trials on creating a common ground for the fight of human rights. "What type of legal frame is present for the homosexuals?", "What does this legal framework stand for in the lives of homosexuals?". Basically this book tries to find clear answers to these questions. We need to underline it once again that the answers of these questions are not lying under the pages of this book but only possible with the creation of a common fight for human rights.
The "Discrimination of Sexual Orientation and Law Report" of Colours of Life Project which has been carried out in the scope of Campaign 2 of Kaos GL Association European Union Human Rights and Democracy Program, has been submitted by Lawyer Oya Aydýn.
In the framework of Colours of Life, "Our rights survey" has been performed aiming the homosexuals. In this survey, the fields in which homosexuals experience most problems are criticized.
"Have you ever been subject to physical violence because of your homosexual identity?" was the first question of the survey. We have pointed out these issues as fields of possible physical violation; family, business life, social life and military for males. Out of 1000, 554 people have answered this question. 50 of these have replied family, 12 have replied business life, 200 have replied in social life, 10 have replied in military process and 24 have replied education life. However most of the participants stated "We haven't come up with any physical violation; yet, should we had been open homosexuals we could have been subject to physical violation."
The second question was "Have you ever been subject to discrimination other than physical violence?". Most of the participants who have aswered this question have stated that they have been subject to discrimination in social life, family, business life, school and during their military period.
Those people stated that they could fight for their rights; they have been fined because of their homosexuality and that they are not utilizing their ways of defending their rights since they think that they are going to be unfairly treated.
They have also stated that those who applied for legal ways have always been judged against and have been subject to various discriminations during their search for legal rights.
The violation of human rights of the homosexuals are not limited to torture and unpleasant treatment. Besides this, violations may start with the denial of the citizenship rights of us, as homosexuals. We might encounter violations of human rights and discriminations because of daily arrangements and applications in most basic human rights like education, health, business and accommodation.
This report includes the results of the research of law which has been carried out in the scope of Colours of Life Project, prepared by Attorney Oya Aydýn.
This book is the first step of the monitoring and assessment processes of Kaos GL performed in the field of human rights and law. During the further period – for the traceability of the legal process- I believe that this book will be a very important source of reference.
With the hope of having brighter days under the rainbow.
Umut Güner
Kaos GL Association
October 2008
INTRODUCTION: DISCRIMINATION OF SEXUAL ORIENTATION AND LAW REPORT
In the sense of being subject to an unusual approach just because of difference in one's sexual orientation, the discrimination of sexual orientation in Turkish Law has been brought to discussion thanks to some organisations carrying out studies in this regards in recent years. The parties of the discussion were the organisations defending the homosexual rights and judicial bodies because of the jurisdictions coming about in parallel to the development of homosexual movement and narrow academical parties. The judicial bodies, executive authorities and other democratic mass organisations are insistently keeping away from being the parties of this discussion.
This present legal discussion, to a large extent, has been driven according to the demand of arrangements on protection against negative discrimination towards homosexuals (prohibition of discrimination) and the right to associate. The demands of gaining equality in every field of life like marriage, inheritance etc. has not yet been given voice to.
In the basis of principles of equality, the right of claiming the equal level of use in social and human rights of people who have different characteristics has been evaluated almost as “luxury”. In a situation that the demands of equality has not been uttered, it is pointless to say that there is no demand in positive discrimination (affirmative action) within the context of first protecting and caring the ones who are/or been made socially more delicate.
Following this general introduction, starting from the fundamental law text as being the basic structural document and the positive law source, related to the homosexuality issue, how it has or has not been regulated in relevant legal areas will be defined and finally will try to reflect the current state by giving examples in the legal applications.
PART 1: DISCRIMINATION OF SEXUAL ORIENTATION IN CONSTITUTION
There is no positive or negative arrangements about homosexuality or sexual orientation in the 1982 dated Turkish Republic constitutional charter. It is been arranged at the 10th article regarding equality.
According to the constitutional charter’s 10th clause about equality :
“Every individual is equal in the legal practices without discrimination in language, race, color, sex, political view, philosophical belief, religion, religious practice and similar reasons.”
We can notice from the clause that the fact of “sexual orientation” has not been covered where the reasons of discrimination such as “language, race, color, sex, political view, philosophical belief, religion, religious practice” has clearly been identified. But the phrase “...and similar reasons” from the clause could be widely interpreted in order to assess the sexual orientation discrimination within this clause’s extent.
Another matter in the constitutional charter that indirectly concerning homosexuals is the phrase of “public morality” as standing one of the reasons of limitations in basic rights and freedoms. Ýn order to eliminate the problems in this phrase regarding homosexuality as an act against moral values in our legal practice, it is one of the homosexuality organisation’s main constitutional demands to avoid interpreting against the sexual orientation and sexual identity as if damaging the prohibition of discrimination, the limitations to “morality” principles laid out in arrangements at “privacy discretion, privacy of the home, freedom of communication, freedom of press, the right to form an association, the right to organize meeting and demonstration” and “the right to establish a union”
Another important issue set out in constitutional charter concerning the homosexual males is the military service arrangements. Related constitutional norms has such a character that could actually be used as highly advanced arrangements with a libertarian legislation and adjudication interpretation.
The freedom of conscientious belief is being set out in constitutional charter’s 24th clause.
Clause 24 – Everybody has the freedom of conscientious, religious faith and belief.
…nobody could be forced to do religious exercises, to join religious rituals and ceremonies, to reveal their religious faith and belief; and could not be accused and criticized by their religious faith and beliefs.”
15th clause of constitutional charter is setting out that, even during the war times, “nobody could be forced to reveal their religious faith and belief and they could not be accused through those.”
In the clause headed as “Service to the country” says;
Clause 72 – “To serve to the country is the task and duty of every Turkish citizen. The implementation of it or how it will be implemented is set out by the laws whether at Military or public area.”
This clause is interpreted by some lawyers as it is enabling to conscientious objection issue. According to constitutional lawyer, judge Osman Can; “To serve to the country is the task and duty of every Turkish citizen. The implementation of it or how it will be implemented is set out by the laws whether at Military or public area.” judgement and the justification of this judgement as “…the frame of how to serve the country is set out by the future arrangements in law and shows the way to the legislator…” is enabling to such an interpretation. According to this; what is being accepted by the majority is actually serving the country, not only serving the Military Forces. So, to serve the country is possible at the public sector as well as at the Military Forces. The freedom of conscience without limitations, is binding categorically all government departments including legislation, judicial bodies and the Military Forces and makes serving the country as a service with alternatives. Therefore, it is clear that the constitutional choice is towards conscience belief in the discussion of military service as being only one of the ways of serving the country.
Another important beneficial issue for homosexuals in the constitutional charter is the decree on secrecy and privacy of private life. 3- Secrecy of private life,
Constitutional charter clause 20 – “Everybody has the right to demand respect to their private life and family life. Private and family life is intangible.”
Nobody personally or their personal documents or belongings could be searched and confiscated without one or more reason concerning the public security, public order, to avoid crimes, to protect public health and morality or protect others rights and freedom; and without a proper magisterial decree; and again regarding the above reasons where it can not be delayed in some certain situations.
The decision of the responsible body needs to be submitted for approval in 24 hours to the judge. And the judge has to announce his decision in forty eight hours from the confiscation; otherwise the confiscation will be void.
But it is known that this clause is not very effective in legal practise. That’s because of the affect of the limitations on “public morality” which takes place on this clause’s 2nd subclause. But, as been mentioned above, the reason of this limitation takes affect in the homosexuality’s interpretation as being immoral.
Sexual orientation is a part of the private life’s secrecy. Therefore, in the event of sexual orientation discrimination, we could rely on the rights of secrecy in private life which is set out in the constitutional charter. This right is also been set out in the 8th clause of the European Human Rights Agreement, and in the event of sexual orientation discrimination, the applicants do apply to the European Human Rights Court depending on this clause.
In the process of “New constitutional charter” discussions in different parts of the society which is been brought up by the government after 22 March 2007 elections, homosexuals have also joined the discussions with some demands. However, it can be understood that the reply of the government was negative, according to report of Bülent Sarýođlu dated 20 Ekim 2007 at Hurriyet newspaper. The statements of Dengir Mir Fýrat and Burhan Kuzu as representing the government and members of the constitutional committee shows us that there could be no improvements in the following hundred years. In one of the statement of Dengir Mir Fýrat to the newspaper he summarizes the government’s approach as;
“It is a bit difficult in the 21st century constitutional charter, maybe possible in the 22nd century. We covered subjects that we call third generation rights such as environment. But this one is a forth generation freedom. We did not consider such freedoms, and I do not think it will be accepted. It does even not take place in EU constitutional charters yet. The Europe still did not make an agreement on this. The society needs to discuss this matter more.”
PART 2: DISCRIMINATION OF SEXUAL ORIENTATION IN LABOR LAW
There is not any certain arrangements in the basic laws setting out the work life regarding homosexuality. Although, there are certain orders of European Union about this matter and it is expected from the countries in the full membership process needs to make their domestic law’s compatible with them. It is been regulated by the 2000/78/EC order that there could be no discrimination due to disability, age and sexual orientation in the work life. However, inspite of the fact that 4857 Labor Law has been in force since 2003, it does not cover any positive or negative regulation regarding this matter.
But there are indirect rules that could apply to the problems in sexual orientation at the work place. Such as :
The clause headed as “The principle of equal acts” regulates the prohibition of discrimination in work relations and the equality principle. According to that clause :
“There could be no discrimination in the work relations due to language, race, sex, political view, philosophical belief, religion, religious practice or similar reasons.”
The phrase in this clause as “…and similar reasons” should be interpreted by covering the discrimination of sexual orientation.
The general rule to end an employment contract due to the principle of prohibition of discrimination headed as “A reasonable cause to terminate” takes place at the 18th clause:
“Race, color, sex, marital status, family liabilities, pregnancy, birth, religion, political view and similar reasons” could not be a reason to terminate an employment contract, and again here the “similar reasons” phrase could well be used by the courts related to discrimination of sexual orientation cases.
In the 24th clause headed as “The worker’s right to terminate with justifiable cause” gives the workers the chance to terminate the employment contract due to a unfair act towards sexuality. According to the 24th clause :
“With or without a fixed work period, regarding the below situations, the worker can terminate the work contract before the end of the work period or without giving notice:
If the employer acts or verbally harasses the worker or any member of the workers family by touching their honour and decency or sexually harasses the worker…If the employer speaks degradingly about the worker by ungrounded attributions and accusations… If the worker faces sexual harassment from the other workers or third parties and if the employer takes no action even though he has been informed of the situation then the worker can terminate the work contract by also earning the right for compensation.”
These regulations, together with the other Human Rights Documents, give the chance to take the employer to court in the event of work contract termination through sexual orientation, earn compensation and make other claims but also; it could be interpreted as giving the worker the chance to terminate the work contract with a justifiable cause due to any discrimination reason.
Also, any act against the prohibition of discrimination is regarded as a crime according to the 122nd clause of the Turkish Criminal Law as we will mention below. This regulation enables take criminal action through director of public prosecutions in the event of discrimination in the work life.
There also can not be found a direct regulation regarding the public workers sexual orientation. However, both the disciplinary decrees in the 657 Public Workers Law and the governmental bodies disciplinary guides based on this law where “the acts of immorality which is incompatible with being a civil servant” clause is being used against homosexuals too.
In between the acts and behaviours that will cause disciplinary action in the 657 Public Workers Law’s 125th clause covers;
“To have behaviours contrasting with civil servant dignity” is being considered as one of the reasons for cautional action,
“To have immoral and indecent acts at the work place and to write, sign or draw pictures related to these acts” is being considered as one of the reasons for censural action,
In practise, the acts that will lead from civil servants depose is usually been used against homosexuals based on “to have dishonourable and discreditable behaviours which is such a low level and quality against the attribution to a civil servant.” Likewise, we can see the same approach in the disciplinary proceedings based on this rules. For example, regarding the teachers disciplinary and promotional legislation of Ministry of Education, in the 27th clause of “The primary and middle school teachers promotional or punishment law” considers one of the acts to cause of dismissal from work such as “a clear impurity which is unacceptable with the attribution of being a teacher both towards the pupil and in the outside” and therefore it has been applied to many teacher just by finding out about their homosexuality and these people have been deposed.
However, according to the similar decisions of the European Human Rights Courts, it is been accepted that the sexual life can only be interrupted when it is against the public order and other interests. These situations are the limitations regarding personal exploitation, especially towards children or limitations to keep order in the military forces. Homosexuality itself is not been considered as a reason itself dismissed from public sector jobs.
The imposition of sanctions other than the mentioned circumstances is considered as violation of the right of “private life’s secrecy and protection” which is set out by the European Human Rights Court’s European Human Rights Agreement’s 8th clause.
On 7/5/2004 that subclause has been added to the constitutional charter’s 90th clause:
“The international agreement clauses should be predicated on disagreements because of the contradictions between our laws and the international laws that includes different applications to the same issues set out in basic rights and freedom.”
Therefore, people who in domestic law, have faced discrimination of sexual orientation could seek their rights relying on the 8th clause of this agreement.
People in Turkey can apply to the European Human Rights Court in 6 months time whose cases been closed after the final hearing relying on the fact that these proceedings are a direct interference to the privacy rights set out at the European Human Rights Agreement’s 8th clause. But it is a common fact that homosexuals facing such sanctions do not tent to take legal actions and so that they do not prefer to make their problem visible to the public eye.
PART 3: DISCRIMINATION OF SEXUAL ORIENTATION IN CRIMINAL LAW
Homosexuality is not considered as a criminal act in the Turkish Criminal Law. Thus, any arrest, custody, criminal investigation or opening criminal case could not be applied to someone because of homosexual relationship.
But the arrangements regarding “personal data records” in the Turkish Criminal Law’s 135th clause, carries a disadvantageous character towards groups with different sexual orientation. According to the 135th clause;
“A person who records personal data unlawfully will be charged with six months to three years imprisonment.”
(2) A person who is unlawfully recording peoples political, philosophical or religious views, racial backgrounds; moral aptitudes, sexual lives, states of health or unionist attachments as personal data will be punished same as the decree clause as above.”
This regulation at first seems like beneficiary for the ones with different sexual orients, but after careful consideration of this clause, apart from peoples political, philosophical or religious views, racial backgrounds; it is only considered as illegal if data related to “moral aptitudes, sexual lives” is being recorded “unlawfully”. The outcome from this point is clear; the laws are somehow keeping records on some people’s moral aptitudes, sexual lives. From this point of view, it is certain that this clause is violating the “the right of secrecy and protection of the private life” which is actually been secured by the constitutional charter and international agreements.
On the other hand, some clauses in the Turkish Criminal Law about morality and sexuality concerns the homosexuals indirectly. Where, these clauses in practice is being used against the homosexuals. As an example for these regulations, could be the 225th clause of the Turkish Criminal Law about indecent exposure and publicly sexual intercourse and the 226th clause about obscenity.
According to the clause 225; “A person who publicly having intercourse or causing indecent exposure; will be prosecuted with imprisonment from six months to one year.”
According to the clause 226; “a) A person who supplies to a child products that includes obscene images, articles or words or someone who shows, reads or make them aware,
b) whom shows, displays, reads, tells or make them read and tell these contents publicly to children,
c) whom sells or rents these products in a way to enable to the content,
d) whom trading by selling or renting these products, other than shopping places made specially for them,
e) whom supplies or distributes these products free of charge or in the means of additional promotion with the main products,
f) whom advertises these products,
will be prosecuted with imprisonment from six months to two years and with administrative fine.
(2) A person who does publish products with obscene images, articles or words by using press and media instruments or who does act as intermediary to them will be prosecuted with imprisonment from six months to three years and with up to five thousand days of administrative fine.
(3) A person who deals with using children in production of products with obscene images, articles or words will be prosecuted with imprisonment from five years to ten years and with up to five thousand days of administrative fine. A person who trades in copying, importing, selling, distributing, stocking, exporting, keeping or enabling others use of them, will be prosecuted with imprisonment from two years to five years and with up to five thousand days of administrative fine.
(4) A person who trades in copying, importing, selling, distributing, stocking, exporting, keeping or enabling others use of products which has contents of images, articles or sounds of using violence, on animals or on dead human body or acts of unnatural sexual acts, will be prosecuted with imprisonment from one year to four years and with up to five thousand days of administrative fine.
(5) A person who supplies products of such as mentioned in subclause three and four, to children and who shows, reads or make them aware by using press and media instruments, will be prosecuted with imprisonment from six years to ten years and with up to five thousand days of administrative fine.
(6) Regarding these crimes, special safety measures will be applied to juridical bodies.
(7) These clauses above, does not apply to scientific works; work of arts and works which has literary value, apart from the condition in the third clause and in condition with avoiding the reach of them to the use of children.
In these clauses, there is no limitation of man, woman or homosexual. But in practise, publications about homosexuality, is considered different from man-woman relationships and the publications with scenes of homosexuality, is directly regarded as obscene.
This condition is caused by the so common definition of indecent exposure and obscenity in the criminal law, but also caused by the mentality in the practise.
Even two men’s walking hand in hand could be well seen as indecent exposure indecent exposure or shameless act by some people. Whereas, the same clauses are interpreted quite in detail to heterosexuality and the measures of use of children, sexual assault or violent acts do not apply.
In criminal law, there are also some arrangements that could be used beneficiary to homosexuals. One of those is in the 3rd clause set out in the practise of criminal law related to prohibition of discrimination. According to this clause;
“The prosecution and security matters will be ruled by considering the proportional seriousness of the act regarding the person who commits the crime.”
In the application of criminal law, there could be no differentiation in regarding people’s race, language, religion, religious practice, nationality, color, sex, political views, philosophical beliefs, national or social identity, birth, economical or other social status and no one person will be given privilege.”
“…other social status” phrase in this clause, could be interpreted by covering the discrimination of sexual orientation too.
Another clause with beneficiary use is the 122nd clause headed “prohibition of discrimination” which regards discrimination as a criminal act. According to this;
“A person by causing discrimination between people about language, race, color, sex, disability, political view, philosophical belief, religion, religious practice and other similar reasons; (1)
a) Due to above reasons; who prevents the sale or transfer of an absolute or real property, and prevents the carrying out or benefiting from a service or someone’s getting or not getting a job,
b) who will not give the commodities or refuse to give a service in public exposure,
c) who prevents someone’s ordinary economical activity,
will be prosecuted with imprisonment from six months to one year and with administrative fine.”
“…other similar reasons” phrase in this clause, could be applied to the discrimination of sexual orientation too.
Bringing the criminal action to court, in theory, by taking legal action seems possible against someone who has caused discrimination through sexual orientation. But level of reality in this argument’s practise is yet unknown.
In spite of the intensive efforts and demands of homosexual organisations while setting the rules in criminal law, the “sexual orientation” phrase is not being included in the 122nd clause as headed “prohibition of discrimination”. It is once came to order during the preparation period but then there has no regulation been set out afterwards. Other than that, the demand for consideration of hatred and discrimination against homosexuals as a separate criminal issue, has never had any grounds on the judicial bodies. However, Turkish criminal law, same as the Labour Law was recently being produced, in 2004, where especially membership process for European Union was really live.
Another point to be careful at, is the phrase of “...with similar reasons”, regarding sexual orientation, could more easily find grounds in practise, where it could not find easy grounds in practise in criminal law due to its principle of legality, that means one crime could not be regarded as a crime unless it has clearly set grounds. Therefore, it seems there should be seperate and special regulations set for criminal law.
PART 4: COMMON LAW AND HOMOSEXUALITY
Civil Law is made up of several parts; such as Personal Law, Family Law, Law of decendent's estate, Real Law. The regulations in the personal law part of the civil law, regarding the right to form associations, carries utmost importance for homosexuality. The regulations set out about the subject is:
Clause 47 – “The group of individuals specially organised to form a separate body and independent group of assets specifically organized for a certain purpose, will gain corporate legal personality by the regulations set out specially for them. But the group of individuals and assets can not gain corporate personality which have aims against the common laws and morality.”
Clause 56 – “Assosiations are group of corporate bodies, formed by real or corporate with at least seven personalities without the aim to share profit, and sharing their expertise and efforts continuously in order to achieve a certain purpose. Assosiations can not be established in terms of unlawful or immoral purposes.”
Clause 89 – “If the purpose of the association becomes unlawful or immoral, by the wish of the public prosecutor or the demand of another relevant person, the court may decide for the termination. The court will then take any measure including detention of any activities during the case.”
Clause 101 – “Foundations are group of assets with corporate personality formed by real or corporate personalities putting certain amount of assets and rights in a certain and continous way to achieve a cetain purpose.
The whole or part of a list of assets or its rights of certain income or economical value could be dedicated for the foundation. There could be no membership in foundations.
Foundations can not be formed against the Republic’s specified attributions by the constitutional charter, and against the main principles of the constitutional charter, against law, morality, national solidarity and national interests or in order to support members of certain groups or communities.”
When we look at those clauses, it could be hard to make the connection with the homosexuality. But, homosexuality itself is regarded as a state against morality in legal practises and by this way, it is limiting the freedom of association of the homosexuals. (refer to the case of Kaos GL and Lambdaistanbul.)
According to the sections of family law in the Civil Law’s 182nd clause;
“While a court decides on divorce or separation, after listening to the mother and father if possible and then setting out the personal relations of the mother and father with the child, after getting the thoughts of the guardian and the guardianship authority, if the child is under legal guardianship. The benefits of the child considering especially the education, health and morality issues when setting out the personal relationship of the parent who did not obtain the guardianship. This parent will need to involve in the care and educational expenses as a reasonable level. The judge can decide of the payment settlements to be paid according to the parties’ future social and economic situation if it is demanded.”
The phrase of “morality” is also being used against homosexuals. In a contentious case, it could be said that there is no possibility of the guardianship’s being honoured to a homosexual parent. A decision made in 1982 by the Court of Appeal, regarding this issue, clearly shows the approach of laws, that a lesbian mother could not be given the guardianship of her child due to “her life against the common morality.”
Other than that, neither marriage issue in family law nor legal hereditary issue in the law of decendent's estate do not have a regulation regarding homosexuals.
The marital rights do not cover same sex people. It is also not an issue for homosexual couples regarding social security rights and similar benefits of the families.
There is no special regulations towards the right of adoption. According to the Civil Law, anybody single over the age of 30 could adopt a child. Thus, a homosexual person could adopt a child too. But, in the process of the adoption, while the stage of courts supervision, if the homosexuality is being announced and if it seen as a contradictory circumstance for the child’s benefit; the court then may reject the adoption application.
Legal heir is also not an issue according to homosexual relationships. But people can dispose of their property the way they wish to, and leave their properties through their will to any people that they would like to. Since hereditary portion (legal inheritors share) holders can apply through court against the decision of the property left through the will.
In this case, the rate of the hereditary portion will be deducted from the will amount and the rest of the amount will be valid.
According to the family law, European Human Rights Court, prefers to leave the solutions to the countries domestic laws about the applications related to the issues such as marital rights and benefits of social security etc.
PART 5: MILITARY AND HOMOSEXUALITY
In the part regarding the constitutional charter, we have told that the service to the country is set out on the 72nd clause and the implementation of it or how it will be implemented is set out by the laws whether at Military or public area; and that will not necessarily mean military service.
As mentioned before, this decree in constitutional charter, is being interpreted by some lawyers as it is enabling to conscientious objection issue. But this interpretation do not find necessary grounds in legislation and adjudication levels, therefore still makes the military service compulsory.
On the other hand, homosexuality is judged as an illness unfavourable for military service. There is a list of illnesses and disabilities in the 17th clause if the Military Forces Health Capacity Regulations numbered 19291 dated 24/11/1986.
This clause’s (B) item’s 3rd subclause expresses of the “Psychosexual defects” and (D) item’s 4th subclause expresses of “exceeding psychosexual defects”.
Homosexuality is considered as psychosexual defect at the Military Forces. In this case, it must be an issue that the homosexual person should not join the Army by obtaining a homosexuality report from the psychology department. But, to benefit from this clause is tied to certain conditions. That is, the sexual behavioural defects should be exceedingly obvious although their life, and it should be determined with observations and documents that his joining the army will cause or causing an unfavourable situation.
This regulation is causing in practise, some injury of personal rights, such as their asking for pictures of sexual intercourse as proof. Also, their seeking for “feminine” acts and look and only giving the report to the ones so called “passive”, not to the others and causing them to join the army. However, people who can’t manage to obtain the report even though being homosexual may take it to the High Military Administrative Court and have the chance to cancel the report of suitability to join the army.
The military psychology in Turkey still functioning this way and instead of the American Psychiatry Union’s criterias of DSM-IV which defines the psychiatric defects and is widely accepted around the world, we have accepted the same unions DSM-II criterias and regarded homosexuality as an illness. But, homosexuality is already been taken out from DSM-II’s list as an illness in 1974.
There are also other regulations in serving the army and military discipline laws that concerns homosexuals apart from serving their country. For example; the 162nd clause of the Military Penal Law says that a person acts against “military morality” may be punished by the commander. Here, according to “definition of military morals” this may be possible in any state that reflects the homosexuality.
CONCLUSION
This study covered the regulations in some legal aspects that directly affecting the daily life’s of the homosexuals.
But other than those, the phrase of “public morality” as being used as a general limitation in several laws such as; 40. clause of Military court of Appeals Law, 17. clause of Solicitors Law, 3. clause of Law of Press, 11. clause of Judges and Attorney’s Law, 25. clause of Condominium ownership Law, 8. and 9. clauses of Police Duty and Entitlement Law, 5. clause of the 3984 Radio and Television Establishment and Broadcasting Rights Law, 3. clause of the Cinema Movies Evaluation and Classification Law, 3. clause of Works of Cinema, Video and Music arts Law, 78. clause of the Political Parties Law, and so that the above phrase as being considered as a state against the morality carries a potential to be widely used against homosexuals.
Therefore, it is very important to prohibit the discrimination of sexual orientation in our constitutional charter and to establish this discrimination as a crime in the criminal law, in order not to use phrases such as “against morality” against the homosexuals.