Jurisdiction and Venue in Gender Reassignment Permission Cases

There are frequent difficulties in determining the jurisdiction and venue in lawsuits for permission for gender reassignment. In these cases filed under Article 40 of the Turkish Civil Code (TCC), the Civil Court of General Jurisdiction is deemed to have jurisdiction, and the decisions of the Court of Cassation and Regional Courts of Justice have been consistent in this regard.

Difficulties are frequently encountered concerning the jurisdiction and venue in lawsuits for permission for gender reassignment to be filed based on Article 40 of the Turkish Civil Code. To determine this matter, an examination of legal doctrine and recent decisions of the Court of Cassation and Regional Courts of Justice is essential.

In legal doctrine, the Civil Court of General Jurisdiction of the plaintiff's domicile has been indicated as the competent court with jurisdiction and venue for granting permission for gender reassignment.

“As in all civil registry cases, requests for permission for gender reassignment will be examined and decided by the Civil Courts of General Jurisdiction. Although the legislator has not explicitly stated the competent court, considering general rules and practice, it is observed that the Civil Court of General Jurisdiction is the competent court. The authorized court that will grant permission for gender reassignment will be the court of the place where the person is located, as well as the court of their domicile.” (Hasan Özkan, Kifayet İştip Ataç, Annotated-Case Law Civil Registry Cases and Civil Registry Procedures According to the New Law No. 5940 on Civil Registry Services, Ankara: Seçkin Yay., 2009, p.168)

In recent decisions of the Court of Cassation regarding which court shall hear cases for permission for gender reassignment, the Civil Court of General Jurisdiction has also been indicated:

“The request for permission for gender reassignment is regulated as a non-contentious judicial matter under Article 382/2-a-2 of the Code of Civil Procedure (CCP) No. 6100. According to Article 383 of the CCP, the competent court in non-contentious judicial matters is the Civil Court of Peace, unless otherwise stipulated.

“In Article 36, paragraph 1/a of the Civil Registry Services Law No. 5490, it is stipulated that lawsuits for correction of civil registry records shall be filed in the competent Civil Court of General Jurisdiction located at the domicile of the individuals requesting the correction.

“It has also been adopted by the decision of the General Assembly of Civil Chambers of the Court of Cassation dated 25/12/2013, numbered 2013/18-464 E. and 2013/1698 K., that the plaintiff's request does not fall within the scope of non-contentious jurisdiction and shall be heard by the Civil Court of General Jurisdiction in accordance with the aforementioned articles of the Law, therefore, the dispute falling within the scope of Article 36/1-a-b of Law No. 5490 MUST BE HEARD AND CONCLUDED BY THE CIVIL COURT OF GENERAL JURISDICTION.

“CONCLUSION: For the reasons explained above; in accordance with Articles 21 and 22 of the Code of Civil Procedure No. 6100, it was unanimously decided on 19/09/2016 to DESIGNATE the ...2nd Civil Court of General Jurisdiction AS THE COURT OF JURISDICTION.” (Decision of the 20th Civil Chamber of the Court of Cassation dated 19/09/2016, numbered 2016/6168 E. and 2016/77863 K.)

It is observed that the recent decisions of the Regional Courts of Justice are also consistent with the decisions of the Court of Cassation. For instance, in the decisions of the Istanbul Regional Court of Justice, it has also been ruled that the Civil Court of General Jurisdiction is the competent court with jurisdiction in cases for permission for gender reassignment:

“In the concrete dispute, since the plaintiff requested permission for gender reassignment under Article 40 of the Turkish Civil Code, it is clear that the request for permission for gender reassignment surgery should also be evaluated within this scope.

“The request for permission for gender reassignment is considered a non-contentious judicial matter under Article 382/2 of the Code of Civil Procedure No. 6100. According to Article 383 of the same law, the competent court in non-contentious judicial matters is the Civil Court of Peace, unless otherwise stipulated.

“Article 36, paragraph 1/a of the Civil Registry Services Law No. 5490 stipulates that lawsuits for correction of civil registry records shall be filed in the Civil Court of General Jurisdiction located at the domicile of the individuals requesting the correction. In this situation, since Article 36 of the Civil Registry Services Law No. 5490 constitutes a special regulation, IT IS CLEAR THAT THIS CASE SHALL BE HEARD BY THE CIVIL COURT OF GENERAL JURISDICTION.” (Decision of the 1st Civil Chamber of the Istanbul Regional Court of Justice dated 07/12/2016, numbered 2016/13 E. and 2016/24 K.)

Both from the approach in legal doctrine and from the recent decisions of the Court of Cassation and Regional Courts of Justice, it has been concluded that the competent court with jurisdiction and venue in lawsuits for permission for gender reassignment filed based on Article 40 of the Turkish Civil Code is the Civil Court of General Jurisdiction of the plaintiff's domicile.