Legal Process for Gender Reassignment Surgery

Gender reassignment surgery is subject to court authorization pursuant to Article 40 of the Turkish Civil Code. Surgeries performed through illicit means entail significant health and legal risks, thus the prescribed litigation and authorization process must be adhered to.

Beyond the medical answer to the question of how gender reassignment surgery is performed, when we examine the legal dimension of the matter, it is observed that the law conditions this operation upon court authorization. Here, it is necessary to approach the issue within the context of 'law' and 'legislation.' While an individual possesses the right to self-determination over their own body, as gender reassignment surgery produces consequences pertaining to public order, the legislator has made the exercise of this right contingent upon a court decision. However, in an ordinary medical intervention, such judicial authorization is not sought; rather, the individual's consent is deemed sufficient. Accordingly, the matter holds significance in terms of the balance between justice and individual rights.

This authorization can be obtained as a result of a lawsuit for permission for gender change, to be filed pursuant to Article 40 of the Turkish Civil Code. Fully equipped hospitals specializing in gender reassignment surgery invariably require court authorization and do not perform surgeries without it. When the letter and spirit of the law are examined together, it becomes evident that gender change is not merely a medical procedure but also a legal concept that permeates civil registration records. Therefore, the authorization obtained from the court serves not only for the legitimacy of the medical operation but also constitutes the declaratory basis for subsequent lawsuits for name and gender change. Consequently, a surgery performed without court authorization lacks legal meaning and validity.

Despite the legal regulation, it is also known that surgeries are performed illicitly without a court order. These surgeries, carried out by individuals who violate the Hippocratic Oath and disregard professional ethics, are not performed under the necessary hospital conditions, thereby placing the lives of transgender individuals at serious risk. Furthermore, it is known that exorbitant amounts of money are demanded for illicit surgeries. This situation contravenes the procedures prescribed by legislation and undermines both the individual's right to health and public trust in the law. For instance, a surgery performed in an unlicensed polyclinic carries a high probability of leading to medical complications and yields no legal effect. Therefore, the manner in which such surgeries are perceived is, 'in reality,' a violation of law and contrary to public order.

From a legal perspective, a transgender individual who undergoes surgery through illicit means experiences serious post-operative problems. Because after undergoing surgery legally, contingent upon the authorization granted by the Court, by documenting this situation, a lawsuit for gender and name change is filed in the civil registry. In the filed lawsuit, the court bases its decision on the duly obtained Court authorization and the surgical report. Namely, the alteration of the gender entry signifies not only a biological transformation but also the re-establishment of identity rights. For this reason, Court authorization serves an exceptional legal function. Consequently, the dismissal of lawsuits filed in its absence is self-evident. Naturally, reports and documents obtained through unlawful means are not considered valid before the court.

Transgender individuals who undergo gender change through illicit surgery also desire the alteration of their gender entry and name in the civil registry and file lawsuits to that effect. However, in many cases, it can be observed that lawsuits are dismissed due to the absence of prior court authorization, and efforts to obtain a favorable outcome continue for years in appellate and cassation courts. The point to note here is the repeated testing of the sense of justice. For on one hand, there are individual rights and the exigencies of social life, and on the other, the courts' review of legality. Yet, courts do not even implicitly accept illicit surgeries; rather, they consider these surgeries null and void.

The courts' objective in acting in this manner is not to legitimize illicit surgeries. However, a transgender individual who has undergone such an illicit operation faces significant discrimination when unable to change their gender entry and name in court. During a security check, law enforcement officers may cause considerable problems for a transgender individual whose appearance differs significantly from their civil registry record. Significant problems can arise when taking an exam or conducting transactions at official institutions. The courts' 'non-recognition' of illicit surgeries complicates daily life.

The conflict here lies between the principle of the rule of law and the individual's de facto life. Pursuant to the explicit provisions of the legislation, courts do not exceed their boundaries, but in return, individual rights are infringed upon in daily life. Consequently, the difficulties experienced by transgender individuals in this process meticulously demonstrate the profound importance of justice's reflection in social life.

Therefore, it is the opinion and conviction that transgender individuals should under no circumstances opt for illicit surgery, but rather obtain Court authorization by duly filing a lawsuit for permission for gender change, undergo the surgery at hospitals specializing in gender change surgery by presenting this authorization, and subsequently file lawsuits for gender and name change in the civil registry in accordance with the law, as there is a legal benefit in doing so. This path is the safest in terms of both satisfying the sense of justice and protecting individual rights. Conceptually, a state governed by the rule of law is obligated to provide its citizens with legitimate means to assert their rights. Accordingly, the protection of vested rights and the recognition of an individual's identity in accordance with official records constitute the fundamental purpose of law. This path, when utilized, will particularly facilitate the lives of transgender individuals and enable their integration into society.