Discrimination and Hate Crimes Against Transgender Individuals

While the gender recognition process for transgender individuals is legally acknowledged under Article 40 of the Turkish Civil Code, they may nonetheless seek redress for discrimination and hate crimes through criminal complaints under Article 122 of the Turkish Penal Code and civil actions for damages.

The legal dimension of the gender recognition process for transgender individuals is a comprehensive procedure. It commences with a court-granted permission for gender reassignment surgery, based on the application of Article 40 of the Turkish Civil Code, following a lawsuit for permission for gender change. This is then followed by civil actions to change gender and name in the civil registry, ultimately culminating in the alteration of the transgender individual's gender and name entries in their official records. The legal framework for this process stems from provisions established by the legislator with the aim of protecting personal rights. Specifically, Article 40 of the Turkish Civil Code not only regulates permission for surgery but also ensures that changes in the civil registry are carried out in due course.

However, transgender individuals may face discrimination not only during this litigation process but also after their identity documents have been changed. As legal proceedings are often accompanied by hormone therapy, a discrepancy can arise between their gender presentation and their identity information. This situation complicates daily life for transgender individuals, from police identity checks at security checkpoints to every transaction they undertake in public offices. The most significant issue encountered here is the shortcomings demonstrated by public authorities in interpreting and applying legal provisions. For instance, if an individual registered as male in the civil registry presents as female in appearance, significant inconsistencies can arise in administrative dealings. This reality directly contradicts the principle of equality.

While rights and freedoms should be regarded as vested entitlements, discriminatory outcomes, on the contrary, emerge in practice. This undermines transgender individuals' sense of justice and calls into question the state's obligations of impartiality and equality.

Predominantly, the source of these problems lies in public officials' insufficient knowledge of legislation and lack of training. Consequently, the mere existence of legal provisions is not enough; they must be correctly reflected in practice. At this juncture, the development of training programs and oversight mechanisms constitutes a significant opportunity to prevent discrimination.

Upon completion of their gender recognition process, transgender individuals achieve the gender with which they identify. However, even thereafter, they continue to face various forms of discrimination. This situation presents an important consideration regarding how the concept of equal citizenship should be understood within a state governed by the rule of law. Justice, after all, must be felt not only in courtrooms but also in daily life. Otherwise, a significant gap emerges between reality and legislation. The manifestation of discrimination as an unending chain for transgender individuals indicates the presence of deeply entrenched prejudices in society. Such practices demonstrate that merely recognizing a right is insufficient; the right must also be protected during its exercise. At this point, the state's positive obligations come into play. However, merely enacting laws is not enough, particularly in preventing hate and discrimination. Consequently, the implementation of effective oversight and sanction mechanisms is essential for the establishment of justice.

Discrimination prevalent in society manifests most acutely in areas such as employment, housing, access to healthcare services, and access to various goods and services. In the realm of employment, the refusal to hire or the dismissal of transgender individuals falls directly within the scope of Article 122 of the Turkish Penal Code. In this context, the violation of rights explicitly protected by the legislator also entails liability for damages. Regarding the right to housing, a landlord or real estate agent's refusal to rent due to identity information constitutes a clear example of discrimination. In such a situation, sanctions under both criminal law and private law ought to be invoked. As for access to healthcare services, specifically the obstruction of transgender individuals due to their identity information, this constitutes a violation of a constitutional right. This reality is not merely an attack on an individual's right to life but also a direct assault on human dignity.

Furthermore, many transgender individuals can also be victims of hate crimes. Hate crimes should not be regarded merely as attacks on individuals but also as phenomena that undermine social peace. In this respect, the aspect of hate crimes that threatens public order is self-evident. Repeated field research indicates that transgender individuals are more intensely subjected to these crimes. Despite the existence of relevant legal provisions, it is observed that sufficiently deterrent measures are not taken in practice. A detailed examination of such cases is crucial for both the administration of justice in criminal proceedings and the protection of victims' rights. For instance, it should be considered that a transgender individual who is attacked not only suffers personal harm but also that society's understanding of equality is wounded. At this point, the most effective avenues available to transgender individuals subjected to discrimination and hate crimes are filing a criminal complaint for the offense titled "Hate and Discrimination," as defined in Article 122 of the Turkish Penal Code, and subsequently initiating a civil action for damages. Article 122/1 of the Turkish Penal Code stipulates that hate and discrimination can manifest as "hate stemming from differences in language, race, nationality, color, gender, disability, political opinion, philosophical belief, religion, or sect."

Pursuant to this provision, discrimination committed on the basis of gender difference is explicitly punishable under the law. Consequently, transgender individuals can seek justice by resorting to legal remedies. However, in practice, many victims are observed to hesitate in availing themselves of their rights. The reasons for this include the lengthy nature of the processes and the intensity of social pressures. Thus, a situation arises where the existence of legislation conflicts with practice. At this juncture, legal counsel ensures that the process is conducted in accordance with proper procedure. This support also provides the opportunity to escalate cases to higher judicial authorities. Ultimately, a process that can extend to the European Court of Human Rights is the most effective way to prevent an individual's loss of rights.

The inclusion of the concept of "gender" here indicates that sexual discrimination will also be condemned. This regulation carries significance in broadening the scope of legal protection. Indeed, not only biological differences but also gender identity is protected. Conversely, without this regulation, the claims of transgender individuals could have remained in a normative vacuum. However, the legislator established such a guarantee, mindful of the truth of the principle of equality. In this regard, it is self-evident that differences in sexual orientation and identity must be protected under the constitutional principle of equality. A legal order where rights and freedoms are recognized for all individuals without exception forms the foundation of justice.

The offense of hate and discrimination occurs when a person is prevented from the sale, transfer, or lease of a movable or immovable property offered to the public (Turkish Penal Code Article 122/1/a), from benefiting from a specific service offered to the public (Turkish Penal Code Article 122/1/b), from being employed (Turkish Penal Code Article 122/1/c), or from engaging in a normal economic activity (Turkish Penal Code Article 122/1/d). The breadth of the transactional areas enumerated in this article demonstrates the protective character of the law. For instance, preventing a person from being employed and depriving a person of a service are penalized at the same level. The underlying concept here is the principle of equal citizenship. This principle constitutes the strongest guarantee against discrimination in a state governed by the rule of law. Consequently, it is self-evident that hate crimes should be regarded not merely as individual harm but as a threat directed at society's understanding of justice. Therefore, these regulations are of particular importance.

The penalty prescribed for this offense is imprisonment for a term of one to three years. The deterrent effect of the penalty amount is open to debate; however, the legislator's aim in enacting this regulation was to establish a sanction, even if at a minimum level. Nevertheless, in practice, the suspension of sentences or their conversion to fines for this offense yields negative results in terms of deterrence. This prevents the full realization of justice intended by the law. Therefore, reform proposals repeatedly brought to the agenda consider increasing penalties or tightening their enforcement. These considerations should be taken into account to strengthen society's sense of justice.

Furthermore, transgender individuals who experience discrimination also have the right to claim damages. A civil action for damages serves not only to compensate for harm but also to ensure deterrence. In this regard, the interplay of private law provisions with criminal law regulations is of great importance for the establishment of justice. For instance, a transgender individual who is unfairly dismissed from employment can file both a lawsuit for reinstatement and claim pecuniary and non-pecuniary damages due to discrimination. Thus, legal remedies offer a wide range of avenues for recourse. Detailed knowledge of these rights empowers individuals. Conversely, when rights are unknown, adequate compensation for damages resulting from discrimination cannot be secured.

Despite the widespread prevalence of discrimination, the low number of court decisions on the matter stems from victims of discrimination choosing not to pursue legal remedies. The most effective fight against discrimination and hate crimes is possible by pursuing legal action against individuals who commit such offenses. Following this process with the assistance of a specialized attorney will ensure that the matter can be escalated to higher courts, and if necessary, to the Constitutional Court and the European Court of Human Rights, thereby preventing the loss of rights due to procedural reasons.

The reality observed here is that the mere existence of a law is insufficient. If legal remedies are not utilized, statutory provisions remain on paper. This situation, on the contrary, reinforces the perpetuation of discrimination. However, every case brought before judicial authorities through victims' applications will set a precedent and strengthen society's understanding of justice. By employing appeal and cassation procedures, it becomes possible to prevent recurring losses of rights.