Yeşim Başaran

Being lesbian, gay, bisexual, travesty or transsexual in Turkey is not guilt in terms of the Law. These identities had never been defined as guilt in the laws of our land. If we look at the world, Jamaica, Papua New Guinea, Yemen, Sri Lanka, Turkmenistan, United Arab Emirates, Uzbekistan, they can be counted among countries where homosexuality is guilt. The qualifications of punishments differ among countries. In addition, some countries punish both male and female homosexuals, while some of them include only male homosexuality, and female homosexuality is ignored. There are some countries, too, where homosexuals and transsexuals are discussed in the laws in a different manner from each other. For instance, in Iran homosexuality is regarded as a sin, while transsexuality is defined as an illness which should be cured, by transforming the sex of the person. Besides, even if the presence of these acts in criminal law poses a threat for homosexuals, in some countries (for example in India) they are not applied anymore.
While observing the world as a map, we recognize a lot of changes within the sphere of jurisprudence concerning LGBT people in its history. For example, Bulgaria removed in 1968 the act that was sentencing homosexuals and began to define discrimination against them as a crime in 2002. Social struggles and developments in human rights law forced many countries to change their laws. For example, Finland defined homosexuality as guilt and had prescribed a sentence, for two years, until 1971. This sentence was removed in that year, but “to encourage homosexuality” continued to be defined as guilt. In 1995, discrimination against homosexuals became guilt in the criminal law. In 2001, “registered partnership” (the unity which can be considered like a marriage) bring about to cover also homosexuals.

Public Morality and Turkish Family Structure

Since in some countries LGTB identities are defined as guilt, in countries like Turkey, where jurisprudence does not agrees that these identities as guilt, the legal condition of LGBT identities is considered to be void of problems. Indeed, we can display that void of anti- discriminative laws as a big problem. But the fact that homosexuality is not defined as guilt, renders an illusion which supports the belief that we do not have any legal problems in this respect. But the there is a different situation. Since LGBT individuals have claimed upon public sphere, have organized themselves, have clamored their entities and identities, some acts which had not covered homosexuality or transsexuality before, started to emerge. As our identities were ignored by laws, we started to have forensic problems. The jurisprudential clauses that we are confronted with are not so familiar to social movements. For example, the function of TCK 301, a clause on the agenda, is to suppress the criticisms about government. From the context of free speech, the opposing groups frequently experienced problems because of this clause, and they are struggling against it. But different from the resistance groups, which do not consist of LGBT components, and are not familiar to the following conceptualizations, we, as LGBT people have to suffer: “public morality” and “Turkish family structure”. In Turkey, it is possible to talk about a struggle which opposes 301 and other clauses within the context of free speech, and clauses against a struggle which unites all opposing groups. But the concepts, “public morality” and “Turkish family structure,” which function as an opposition against LGBT people, whenever they express their identities immediately, are not understood by counter movements, or these concepts are not taken into the agenda of struggle of the very groups – except women’s movement and some amalgamated organizations. In Turkey, while LGBT movement attempts to take a step about this issue, it has to persuade not only the government, in particular, and the state, in general, but the organizations which deal with human rights, freedom, and justice as well. We, in recent years, by revealing ourselves and getting organized, were emphasizing that the red line in Turkey can be transgressed not only within the sphere of security, but within public morality as well.

Public morality reveals itself almost in every legal text- from Constitutional Law to regulations. If we look at Constitutional Law, this text brings upon a restriction of the privacy of private life, of immunity in housing, of free communication, of the freedom of the press, of the right of founding an association, of the right of founding a union, if they seem to be a threat to public morality. In every clause, another concept which goes hand in hand with public morality is public security and that is worth to pay attention.

Similarly, the seventh chapter of TCK, “Guilt against Public Morality” includes clauses against immodest actions, obscenity, prostitution, gambling and child begging. In Regulation concerning Associations, in the chapter about opening a clubhouse and cancellation of work permission, having testimonies of those who “act against public morality” beside the statements “retaining drugs”, “retaining guns illegally”, provides a vision for anyone how easily legal concepts may be used potentially as a weapon against LGBT people. Indeed, there is not a mention of LGBT identities in these clauses, but by juridical and/or law enforcement organs, these concepts are used against us.

Being Legally Not Present

Laws of Turkey ignore the presence of homosexuals and transsexuals. But though we are not covered in present laws through any legal definition, those who exercise processes with reference to public morality encounter with certain situations which are related to homosexuality or transsexuality, and because we are not present in these laws the authorities make decisions according to their personal point of view and initiatives.

Elif Ceylan Özsoy, introduces following examples concerning expressions with respect to homosexuality, which courts utilize as they encounter concrete events: act or manner which is not approved with regard to social order, to a situation that threats the health of society, to make himself/herself an object of another person’s delight, to inappropriate act, to addiction. These statements are present in the decision texts of the Court of Appeal, Council of State and Constitutional Court.

The removal of Kaos GL magazine, based on the decision of Prime Ministery Committee of Protecting Children From Pornographic Publications, and resulted in the confiscation of one of the magazine’s issues about pornography in 2006, shows that our freedom of speech is not secured, for example our freedom of association. The confiscated issue of Kaos GL has discussed and examined pornography, and this is very crucial in understanding how public morality may be exploited in such an arbitrary way. Commodification of the bodies of women is legitimate on a social level as such, but a debate about pornography, stimulated by a homosexual magazine, was regarded as harmful. If we look at this issue of Kaos GL, which Prime Ministery Committee of Protecting Children from Pornographic Publications made a decision about, we observe that there are articles which are directly taken from other magazines. The decision of the committee is not based on the contents of the articles or visuals. In the decision text4, the reason why publishing of the magazine was banished was explained on the basis of these sentences present in the issue: “.. Homosexuality is as natural as different eye colors.. Homosexuality is not peculiar to Turkey, rather it is present in every society regardless the language, the religion, the ethnicity, the culture and the nationality of these subjects.. It is observed that, while such an understanding is introduced to the reader as a defense mechanism under the cover of freedom and democracy, it attempts to generalize and to legitimize a conception of homosexuality, by displaying homosexual relationship -which is defined as fortuitous and as exceptional by every society- like an alternative of heterosexual relationship, and by encouraging this fortuitous sexuality, it is publicized and grace examples are presented concerning memories of homosexuals..” Those who perceived LGBT people’s need of expressing themselves like “propagating an immorality”, give such decisions without thinking twice.

The reason for bringing upon the suit about closing Lambdaistanbul5 was that the words ‘lesbian’, ‘gay’, ‘bisexual’, ‘travesty’ and ‘transsexual’ has been present nominally in the regulation of the association, and its objective was opposed to public morality and Turkish family structure. The clauses that were alleged in the accusation supporting this rationale were Turkish Civil Code no 4721, clause 566, item 2 and Turkish Constitutional Law, clause 417. In Turkey, LGBT associations which established themselves one by one in the last three years passed a similar process. Governorship of Ankara made a criminal report about the reasons of closing Kaos GL magazine, but the public prosecutor adjudged that being gay and lesbian is not immoral, that there are ongoing debates about defining discrimination against homosexuals which should be put into Turkish Criminal Code and, therefore, this allegation is not valid, and that the words gay and lesbian are used in everyday life and, so in scientific researches, thus, Kaos GL should not be closed on the basis of using these words, and the public prosecutor did not bring a suit8. Pembe Hayat (Association Pink Life) and Bursa Gökkuşağı (Bursa Association Rainbow) passed the same processes. Unlike the others, they brought a suit only about Lambdaistanbul LGBTT Cooperation Association’s closing.

Since bringing the suit about closing Lambdaistanbul, it has come up to its 6th session. Even though lawyers of Lambdaistanbul asked what the elements were which were alleged to be against public morality, the judge did not ask for an explanation from claimant. In the expertise, it is said that LGBT identities are not against public morality. Lesbians, gays, bisexuals, travesties and transsexuals could establish associations. The suit did not come up to an end yet, but we wonder whether the debate would set free from “public morality- pro or con” vicious circle or not. The people and institutions which allege that our identities are against public morality, do not explain what they mean in truth. It is impossible that we may surmise what they allege in any way.

Founded on the term morality, norms are established for women and men, and there is an attempt to render the norms permanent. We frequently discuss sexual roles within the context of feminism. But we restrain the subject matters of the debate. We are trying to explain that it is impossible that there may be a category as “jobs for female- jobs for male.” We emphasize the mistakes of the mentality concerning ‘women deserve vicissitudes, men deserve privileges’. However, we never mention a forced heterosexualism in the context of these sexual roles. While one attempts to draw the lines between what is called ‘women’ and what is called ‘men’, on the basis of the concept of public morality, one also claims that “Women fall in love with men”, and “Men fall in love with women.” So, sexual tendency is one of the factors in the equation of sexual roles. Being travesty and transsexual means not to adopt the excepted sexual roles. So, while they allege that LGBT identities are against public morality, they say “do not render a confusion out of the sexual roles that we are used to.” If there is someone who explains why he/she thinks LGBT identities are against public morality, at that point what we will be questioning and discussing will be sexual roles.

You Do Not Belong to Society

Even though there are similarities between the judicial situations that travesties and transsexuals encounter and the problems that homosexuals and bisexuals face, there are differences too. But the allegation of “disagreement with public morality” is used as a weapon against the presence of all identities.

In Turkey, travesties and transsexuals are forced to prostitute. Eylem, a person who graduated from sociology department of a certain university, narrated to Gacıistanbul magazine her experiences about job hunting9. She applied for 50 work places with her CV where “travesty” was written on the part concerning sexuality, and she told these places had responded. At least 90% of the people who had responded offered sex and there had been people who swore at her. In the same issue of the magazine, Derya Deniz10 made interviews with some work places to investigate what is behind the discourse of travesty and transsexuals, said everywhere “why doesn’t anyone give us a job” and she explained the responses. Question: “Would you offer a job to a travesty/transsexual who is sufficiently qualified for the position?” A certain tea garden in Taksim Gezi Park answers: “Police may chase after you, how can you work here?”, Hürriyet Newspaper: “We won’t.”, Human Resources of Ceylan Intercontinental Hotel: “Actually, I don’t know, it is a confusing subject.”, Koç Holding Company “it’s impossible.”

As Deniz said, prostitution, as a result, has become the second nature of travesties and transsexuals unfortunately. This situation applies not only for those who engage in prostitution, but also for those who do not. Even if a travesty or transsexual does not engage in prostitution, others regard them as prostitutes. On April 7, 2008 the police, suspecting of prostitution (and with a warrant of inspection), came to Lambdaistanbul Culture Centre. It is an illuminating example of how TT identities are perceived. The rationale for the warrant of inspection is the “admissible suspicion” in regard with travesties and transsexuals who visit the culture centre. Similarly, in one of the Lambdaistanbul womans’ meetings, a friend of us told that one morning she went to a café, but the men, passing by, sniped with words such as “how much it costs?”, ”oh baby”. So she gave up going out and returned home. So, if you are a travesty or transsexual, it is hard to find a way to live, except prostitution. Even though, in some way, if you earn your bread, without engaging in prostitution, people still assume that you engage in prostitution.

Travesty and transsexual women, whether they engage in prostitution or not, are faced with a vast and systemic pressure of the police just because of their identities11. Police regularly make raid into houses and take travesties and transsexuals into custody. According to the indictments of the police, travesties and transsexuals are taken into custody because of immodest actions12 or faults. Execution of these clauses is based on the individual’s sexual identity. One of the most important things which should remarked concerning the pressure executed by police is that sexual abuse is a common in the practice of the police towards travesty and transsexuals, and instead of taking them into custody, police tortures them immediately. The police both apply them physical violence and force them to sexual intercourse, as a sign of their power upon transsexuals and travesties who are taken into custody thanks to the claims such as “immodest actions”. In the custodies and forays, speaking with each other about the bodies of transsexuals and travesties or immediately slandering TT people as “haven’t you spent enough money for your boobies, have you? Look these boobies of hers are much more delicious”, or just abusing them sexually, the police utilize various sexual harassment techniques. So, by under the pretension of protecting the public morality, they attack those whom they see in truth as weak and deprived, and on whom they can exercise power through sexuality exactly by basing themselves on the language of sexuality.

We Are Present and We Are Here

In Turkey, laws ignore the presence of LGBT people. Those who have the authority in decision making, make arbitrary decisions according to their personal point of view. This fact immediately occurs in front of us as legal obstacles, while we express ourselves and do not hide our presence. Because our identities are not defined legally, we are not regarded as citizens of Turkish Republic. We are conceived as citizens, as long as we pay taxes, enlist in the army or vote, but when we frankly display our identity we are excluded by reason of confronting the society in general. Within society, the majority may despise LGBT people. But this should not be used as a pretext in regard with the attitude of the state towards us. In fact, state is responsible for protecting us against discrimination and inequality. The legal clauses about discrimination and about inequality are present for ensuring that State may take an active role in protecting its citizens against inequalities already present. Therefore, LGBT organizations, women organizations, etc. believe that the concepts ‘sexual tendency’ and ‘sexual identity’ should be put in the legal clauses about equality and in the clauses about discrimination. In the aforementioned clauses, the identities which are exposed to discrimination are enumerated and the others following are reduced to the expression “and so forth”. Thus, it is noted that those who are not covered in the laws must be treated in a similar way. And this “and so forth” concept, concerning us, should cover the LGBT people, but the law does not agree with us, our social presence is under threat. So that our presence may be retained in the legal implementations, the concepts “sexual tendency” and “sexual identity” should be covered in the law.

In the ongoing process of re-constructing Turkish Criminal Code, the fact that the state refused the attachment of the expression “sexual orientation” to the clause defining discrimination as a guilt, and similarly, that in the debates about Civil Constitution the state resisted to add the expressions, the addition of the concepts “sexual tendency”, and “sexual identity”, to the clause shows that the matter is not that they are not informed about the presence of LGBT people, rather they desire to silence LGBT people. Those who are legislative authorities, reflect their own points of view by saying “our society is not ready for it.” For them, homosexuality, bisexuality, transsexuality are the identities that should be hidden and be ashamed of. They think there is no problem as long as we hide “who we are”.

One of the statements against our demand of expressing who we are is the fear that LGBT people would increase in number. They fear that as we talk to the people who actually are not homosexuals or transsexuals would feel themselves in a different way than before and would start to live with these new identities. They think we glorify homosexuality and denigrate heterosexuality. If we recall that we live under the hegemony of “compulsive heterosexuality”, and that, being forced to reject ourselves, we are forced to establish undesired marriages thanks to our families and under the pressure of our environment, it is not hard to see how unfounded these allegations are. We have a dream where everyone lives his/her own sexuality in the way he/she needs and where no one is condemned, excluded for his/her sexuality. We think the boundaries of sexuality should be drawn not by public morality, but by an understanding in opposition with sexual abuse, sexual harassment and desecration.

No one can change a person’s sexual tendency or sexual identity. Indeed, when some people who trust in him/her selves and are not ashamed of their identity may begin to put these identities in discussion, and social prejudices may slowly disappear this way. Then, a breathing space, which may reveal itself after this process, will ensure frankness about discussions concerning sexual tendency and/or sexual identity. This is the reason why the state strongly emphasizes “public morality” in its policy. What is endeavored is not the protection of public morality, but to keep alienated identities quiet.

P.S.: The extended form of this article is going to be included in the book called “Free Speech In Turkey” (“Türkiye’de İfade Özgürlüğü”) which will be published in Autumn 2008, by BGST Publishing.

From Amargi- Issue 9