The lawsuit for permission to change gender.

The lawsuit for permission to change gender is a legal process that individuals apply for in order to change their gender. Provisions related to gender change are regulated under Article 40 of the Turkish Civil Code. According to Article 40/1 of the Turkish Civil Code:

Article 40 – Any individual who wishes to change their gender may apply personally and request permission from the court to change their gender. However, in order for permission to be granted, the applicant must be over eighteen years of age and not married; additionally, they must be transgender and provide official health board documentation from a training and research hospital confirming that the gender change is necessary for their mental health.

According to the relevant provision of the law, it does not seem possible for the court to automatically rule on a gender change. Permission for gender change can only be granted if the conditions specified in the law are met and the necessity is established. Therefore, before undergoing a gender change operation, the requirements set forth by the law must be fulfilled, and the court must decide on the gender change. A person can only undergo a gender change after a court decision has been made.

Persons Who Can Request Gender Change

The right to gender change is a right that is closely tied to the individual. Due to the regulations in our legal system, other than the holder of such a right, no one else may dispose of the right related to it. A request for gender change falls within the scope of rights closely tied to the individual. Therefore, a request for gender change can only be made to the court by the person themselves. Furthermore, in order for an individual to file a lawsuit for gender change, they must have the legal capacity to sue. Since the counterpart of legal capacity in substantive law is the ability to act, the person must have the legal capacity to act, meaning they must possess the ability to distinguish. Therefore, only individuals who have reached the age of 18, are not married, and have the capacity to distinguish may file a lawsuit for gender change. Apart from the person undergoing the gender change, neither the individual's guardian nor custodian can apply to the court for permission for gender change. Persons who may file a lawsuit for gender change are explicitly and definitively stated in Article 40 of the law, which mentions that the person must "apply personally."

Who Can a Lawsuit for Gender Change Permission Be Filed Against?

A lawsuit for gender change permission filed by a person requesting a gender change is considered a case related to the correction of the civil registry. Therefore, in our legal system, the lawsuit for gender change permission is filed by the person requesting the gender change against the relevant Civil Registry Directorate. Although the lawsuit is primarily non-contentious in nature, in practice, it is treated as a case, and the Civil Registry Directorate of the location where the lawsuit is filed is shown as the defendant, based on the reason that the gender change surgery requires a change in the civil registry.

Essential Elements for a Lawsuit for Gender Change Permission

As stated in Article 40 of the Turkish Civil Code (TMK), a lawsuit for permission to change gender is not a legal remedy that can be sought arbitrarily. For the court to grant permission for gender change, the conditions specified in the law must be met. These conditions, as outlined in the law, are as follows:

The person must be at least 18 years old,
The person must have the ability to distinguish right from wrong,
The person must not be married (they may have been married before and divorced),
The person must be of a transsexual nature,
A medical report confirming that gender change is psychologically necessary (a definitive health board report obtained from a training and research hospital),
A definitive medical report obtained from a training and research hospital.

As can be seen, unless the conditions listed above are met, it is not possible for the court to permit a gender change. The conditions specified in the law prevent gender change from being done arbitrarily. In the past, individuals who underwent gender change were punished; however, with the development of modern law, and as a result of the legal system applied in our country, gender change can now be allowed by a court decision when it is deemed necessary. In the past, when the court granted permission for a gender change, it required the person requesting the change to have lost their reproductive ability. In order to obtain permission for gender change, the person had to obtain a health report proving that they were deprived of their reproductive ability and had a psychological necessity for the change. However, this condition was abolished after the Constitutional Court’s ruling on 29.11.2017, case no. 2017/130 and decision no. 2017/165. With the Constitutional Court's relevant decision, the condition regarding the loss of reproductive ability in Article 40 of the Turkish Civil Code, which regulates gender change, was partially annulled and removed. Thus, the court will no longer require the person to be deprived of their reproductive ability in order to grant permission for a gender change.

Court of Jurisdiction and Competence for Gender Change Permission Case

 The issue of the court responsible for the gender change permission case is debated in the doctrine, but the Civil Court of First Instance has been accepted as the competent court for such cases. The individual requesting a gender change must file the case for gender change permission in the Civil Court of First Instance.

When determining the competent court for the gender change permission case, the place of residence of the individual requesting the gender change should be taken into account. Accordingly, the competent court for the gender change permission case, which is closely related to the individual, is the court located in the place of residence of the person requesting the gender change.

In a gender change permission case, the court of first instance is the Civil Court of First Instance according to the nature of the case, and the competent court is the court located in the place of residence of the individual requesting the gender change. The decision made by the court of first instance in a gender change permission case can be appealed through legal means, and the decision can be subject to both appeal and cassation.

The Presence of Conditions in a Gender Change Permission Case

After filing a gender change permission case with the request for gender change, if the conditions required under Article 40 of the Turkish Civil Code (TMK) No. 4721 are met, the court will grant permission for the person requesting the gender change to undergo a gender change operation. The court does not have discretionary authority regarding the permission for gender change. Therefore, once the conditions set by law are met, the court is obligated to grant the necessary permission. Following the court's decision to grant permission, the individual requesting the gender change can undergo the operation in healthcare institutions, in accordance with the purpose and scope of the permission granted by the court. After undergoing the gender change operation in a healthcare institution, the individual must obtain an official report from a recognized healthcare institution stating that the operation was performed in line with the court's permission. Once the relevant report is obtained from the official healthcare institution confirming that the appropriate operation has been carried out, the person can proceed to the second phase of the gender change, which involves making the necessary changes to the population registry.

Case for Change in Population Registry

 Gender change is a process consisting of two stages. The first stage is obtaining permission from the court for the gender change, and the second stage is obtaining a court decision for the necessary changes in the population registry after the operation is performed. After the court grants permission for the gender change and the relevant operation is carried out, the person who has undergone the operation may request a change in their population registry by filing a lawsuit in the same court with a report from an official healthcare institution confirming the surgery.

If a lawsuit for gender change permission and a lawsuit for a change in the population registry are filed together, the court will decide to separate the cases. After the decision to separate, the outcome of the gender change lawsuit will be treated as a preliminary issue for the lawsuit concerning the change in the population registry. Following the completion of the gender change permission case and the execution of the relevant operation, the individual may file a population registry change lawsuit with the court to request the necessary modifications in the population registry.

Necessary Elements to File a Lawsuit for the Change of Population Registry

The lawsuit for the change of population registry after gender transition is regulated under Article 40, Paragraph 2 of Law No. 4721.

According to Article 40/2 of the Turkish Civil Code (TMK); “If a gender transition surgery is performed in accordance with the purpose and medical methods based on the granted permission, and this is confirmed by an official health board report, the court will decide to make the necessary correction in the population registry.”
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In order for an individual to request a gender change in the population registry, the following steps must be taken:

First, the individual must file a lawsuit for permission to change gender, and the necessary permission decision must be given by the court.
After the permission decision is granted, a gender transition surgery must be performed at a healthcare institution in accordance with the purpose and medical methods as determined by the court.
After the gender transition surgery, an official health report from a healthcare institution confirming that the surgery was performed must be obtained.

Once the individual undergoes gender transition surgery, if the conditions set out in Article 40/2 of the Turkish Civil Code (TMK) are met, the individual who has undergone the gender transition surgery may request the court to make the necessary changes in the population registry.

Once the gender change surgery has been performed in accordance with the permission granted by the court and in compliance with the purpose and medical procedures, the individual who has transitioned can prove that the surgery was performed in accordance with the court’s permission by obtaining an official health board report from a healthcare institution. Afterward, they can file a lawsuit requesting the necessary changes in the population registry, including gender and, if applicable, name changes. The court will decide to make the required changes in the population registry once it has determined that the conditions set forth by the law have been met.

Court of Cassation Decisions Regarding Lawsuits for Permission for Gender Change and Changes in Population Registry

Civil Chamber 2017/7453 E., 2018/2260 K.

“Case Law Text”
COURT: Civil Court of First Instance
CASE TYPE: Correction of Gender in the Civil Registry

At the conclusion of the trial in the case described above between the parties, the court decided to reject the case. Upon the appeal of the judgment by the plaintiff’s attorney, the file was reviewed by the Chamber, and the necessary considerations were made.

DECISION

In the petition, it was requested that permission be granted for a gender change, and upon the fulfillment of legal conditions, the corresponding gender and name correction be made in the population registry. After the court decided to reject the case, the judgment was appealed by the plaintiff’s attorney.
The case pertains to the request for permission for a gender change and the registration of the gender change in the population registry under Article 40 of the Turkish Civil Code No. 4721.

Article 40 of the Turkish Civil Code No. 4721 regulates gender change and the conditions required for gender change. According to this article, a person wishing to change their gender can personally apply to the court to request a gender change. In order to grant permission for gender change, the court will require the applicant to be over 18 years old, not married, to be transgender, and to provide a report from an official health board obtained from an education and research hospital, confirming the necessity of gender change for mental health reasons. Once these conditions are met, the court will grant permission for the gender change, and based on this decision, the individual can undergo gender reassignment surgery. Once the surgery is confirmed by an official health board report, the individual can request the correction of the gender in the population registry, and the new status can be registered accordingly.
According to the regulation on gender change in the law, the process consists of two stages. In the first paragraph of Article 40 of the Turkish Civil Code, if the conditions specified in a restrictive manner are met, the court will grant permission for gender change. In the second paragraph of the same article, based on the permission granted and finalized for gender change according to the first paragraph, if a gender reassignment surgery has been performed in accordance with the purpose and medical methods, and this is confirmed by an official health board report, the court will decide to make the necessary correction in the population registry. In other words, for a gender change, the court must first grant permission for the gender change, and based on this decision, the necessary gender reassignment surgery must be performed. In the subsequent lawsuit, if the gender reassignment surgery is confirmed by an official health board report, the court will decide to make the necessary correction in the population registry. In summary, according to Article 40 of the Turkish Civil Code, there are two separate lawsuits: the first being the lawsuit for permission to change gender, and the second being the lawsuit for the correction in the population registry regarding gender.

In light of the explanations above, when the concrete case is evaluated: The claimant asserts that they underwent gender reassignment surgery in Germany and has submitted translated copies of the reports related to these surgeries. However, according to the report of Okmeydanı Training and Research Hospital dated 29.01.2016, No. 242, it was reported that no surgical procedure regarding gender change was performed according to the documents submitted by the claimant. Therefore, the surgery stage of gender change, as required in Article 40 of the law, cannot be considered as having been completed. However, two separate health board reports related to the claimant’s situation were obtained by the court, but the submitted reports do not include the matters required by the law. Specifically, the first report should clearly state whether the person requesting gender change is transgender and whether the gender change is necessary for mental health reasons. After the first stage, i.e., the gender reassignment surgery is completed, in the second stage, to make a correction in the population registry, it must be confirmed by an official health board report that the gender reassignment surgery has been performed.
Accordingly, the task for the court is as follows: The lawsuit for the correction of gender in the population registry should be separated from the current case file and registered under a new case number. The court should provide an opportunity for the gender change permission lawsuit and, if permission is granted, allow the submission of an “Official Health Board Report” confirming that a gender reassignment surgery in accordance with medical methods has been performed. Regarding the lawsuit for permission for gender change, the claimant should be referred to a training and research hospital along with their foreign treatment documents to obtain a report on the following matters:

Whether the person is transgender,
Whether gender change is necessary for mental health reasons,
Whether the person is permanently deprived of reproductive ability.

A decision should be made based on the resulting report.

CONCLUSION: With the acceptance of the claimant’s attorney’s appeal objections for the reasons stated above, and in accordance with Article 428 of the Civil Procedure Code No. 1086, the judgment found to be in violation of procedure and law shall be REVOKED by referral to Article 3 of the Temporary provisions of the Civil Procedure Code No. 6100. The parties may request a decision correction within 15 days after the notification of the Court of Cassation’s decision in accordance with Article 440/I of the Civil Procedure Code, and upon request, the advance fee shall be refunded to the appellant claimant. This decision was made unanimously on 15.02.2018.

Law Chamber 2018/753 E., 2019/5588 K.

“Case Law Text”
COURT: Civil Court of First Instance

In the case heard between the parties and described above, the Court ruled in favor of the plaintiff. Upon the appeal of the judgment by the defendant …, the case file was examined by the Chamber and deliberated accordingly.
DECISION

In the petition, the plaintiff requested permission for gender reassignment and a change of gender and name in the civil registry. The court accepted the case and ruled for the change of the plaintiff’s gender and name. Upon the appeal of this decision by the defendant …, our Chamber, in its decision dated 25.05.2017 and numbered 2017/2266-7704, overturned the ruling on the grounds that “the present case should be treated as a lawsuit for permission for gender reassignment, and the requests for gender and name change should be separated and the current case should be treated as a pending matter.”

The court complied with the reversal and conducted a new trial, again ruling in favor of the plaintiff. This judgment was then appealed by the defendant ….
According to Article 40 of the Turkish Civil Code No. 4721, a person who wishes to change their gender may personally apply to the court and request permission for gender reassignment. Based on the permission granted, if a gender reassignment surgery is performed in accordance with the intended purpose and medical procedures and is confirmed by an official medical board report, the court shall decide on the necessary correction in the civil registry.

According to this regulation, a person who wishes to change their gender and, consequently, their name must first request permission from the court for gender reassignment, undergo the gender reassignment surgery based on the permission, and verify this with an official medical board report. It is clear that only after this stage can a correction in the civil records be requested.

Upon examining the case file, it is understood that during the hearing dated 30.11.2017, the court decided to comply with the reversal decision and to sever the part of the case concerning the plaintiff’s name change. In the same hearing, the court accepted the case and ruled that the plaintiff …’s gender be corrected from “female” to “male.”

Accordingly, while the court complied with our Chamber’s reversal decision and partially fulfilled it by severing the request for a name change, it was incorrect not to sever the request concerning gender reassignment and not to render a positive or negative decision on the request for permission for gender reassignment.

The fact that the present case was treated as a gender reassignment case and a correction in the civil registry was ordered without first hearing and concluding the case for permission to undergo gender reassignment, as required under Article 40 of the Civil Code, constitutes grounds for reversal.

CONCLUSION:
In light of the principles explained above, it was improper to issue the judgment in its current form. Since the appeal objections are therefore deemed justified, the judgment is REVERSED pursuant to Article 428 of the Code of Civil Procedure (HUMK). The parties are informed that, according to Article 440/I of HUMK, they may request a revision of the decision within 15 days from the notification of the Court of Cassation’s ruling.
Unanimously decided on 10.06.2019.