Implementation of central concepts

• Author: Kadriye Bakirci
• Pages: 15-31

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3Implementation of central concepts

3.1General (legal) context

3.1.1Surveys on the definition, implementation and limits of central concepts of gender

equality law

No surveys and/or reports havebeen published inTurkey inrecent years that provide

insights into the legaldefinition, implementation and limits of the central concepts of

gender equality.

3.1.2Other issues

Although itispossible toobserve important improvements inline with the EUacquison

gender equality in Turkey between 2005-2010, unfortunately since 2011 there has been

a tendency to promote the concept of‘genderjustice’instead of‘gender equality’. Whereas

‘gender equality’ focuses onequality between two sexes, ‘gender justice’ emphasises the

different ‘natural’characteristics of men and women. In this context, according to the

political discourse, women and men have inborn differences which assign them different

roles: looking after family for men and taking care of children for women.36In other words,

this approach normalisesthe ‘naturaldivision ofduties derived from biological differences’,

which isin direct contradiction of the concept of gender equality. As a result, the ideaof

‘women’ has been reduced to the idea of‘mother, wife and daughter’ and women are not

recognised as individuals, but as dependent on the male members of the family.

3.1.3General overview of national acts

There are problems of harmonisation with EU and international standards in the wording,

personal and material scope of the Turkish legislation.

The language used inthe MEA and in some provisions of the OA is sexist. The MEA of1967

still uses the word ‘seaman’ instead of‘seafarer’ and does not mention female seafarers

at all, since itis based onthe idea that only men can work in the maritime sector.37The

OAof2011has some provisions that refer to‘male worker/performer’instead ofusing

gender neutral language (Article 66).38

On the other hand, the Constitution and the EA cover a non-exhaustive list of

discriminatory grounds.

The grounds in the HREIA and the PC that are expanded in comparison to the EU equality

law are: philosophical or political opinion, colour, language, sect, wealth, birth status, civil

(marital) status, and health condition.

36 Aybars, A.I., Copeland, P. and Tsarouhas, D. (2018), ‘Europeanization without substance? EU–Turkey

relations and gender equality inemployment’,inComparative European Politics, April,

https://www.researchgate.net/publication/324623529_Europeanization_without_substance_EU-

Turkey_relations_and_gender_equality_in_employment.

37 Bakirci, K. (2012),Uluslararası Hukuk, ABve ABD Hukuku İleKarşılaştırmalıçalışmaYaşamındaKadın

Erkek EşitliğiArayışı CinsiyetAyrımcılığıYasağıve Turkiye (Searching for Gender Equality and the Non-

Discrimination Principle Based on Gender in Employment in International, European Union, United States

and Turkish Law), Seckin Yayinlari, Ankara, June; Bakirci, K (2019), ‘Is Hukukuve Toplumsal Cinsiyet Bakis

Acilarindan “Adam” Calistiranin Sorumlulugu’(‘The Liability of“Geschaftsherrn” From the Perspectives of

Employment and Gender Equality Laws’),Akit Disi Sorumlulukta Bedensel Zararlar Uluslararası Kongre

(Eds. S.Ucakhan Gulec/N.Basa), TBB Yayinlari, Ankara.

38 Bakirci, K. (2019),‘Is Hukuku ve Toplumsal Cinsiyet Bakis Acilarindan “Adam” Calistiranin Sorumlulugu’

(‘The Liability of“Geschaftsherrn” Form the Perspectives of Employment and Gender Equality Laws’),Akit

Disi Sorumlulukta Bedensel Zararlar Uluslararası Kongre (Eds. S.Ucakhan Gulec/N.Basa), TBB Yayinlari,

Ankara.

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3.1.4Political and societal debate and pending legislative proposals

After the Helsinki European summit in1999 granted Turkey official EU candidate country

status, women’srights inTurkey underwent a period of rapid legislative change and

development between 2001-2010.The EUdemanded better women’s and human rights

from Turkey and Turkey’s desire to join the EUmoved the Government to change outdated

laws against women.

However, when itbecame clear that the EUwould not extend membership toTurkey in

2006,it gave the Government anincentive toroll back many ofthe gains inwomen’s

rights. This regression inwomen’s rights included:

-in 2012, the name of the state Ministry for Women’s Affairs was changed tothe

Ministry of Family and Social Policies and then, in2018,to the Ministry of Family

Employment and Social Services. As many women’s organisations have pointed out,

this decision reflects the Government’s perspective ongender and women’s rights,

revealing its desire todefine women only interms of their role within the family

rather than accepting them as individuals/citizens;

-in 2013, the legislature attempted to draft a law limiting abortion rights;39

-in 2016, the legislature attempted to amend Article 103of the PC on sexual abuse

of children to delay the punishment of the offender and its complete removal after

five years in the event of marriage between the offender and the child rape victim;40

-in 2017, mandatory mediation in employment disputes, including sexual harassment

was introduced by the Labour Courts Act;41

-in 2018, a draft law on mandatory consultation and implementation of conciliation in

cases of divorce was introduced;42

-married women’s right to carry their own surname is still problematic;43

-since last year, some politicians have sided with men who want to stop paying

alimony to divorced women, which is something that low-income single mothers

cannot live without;

-although Turkey was one of the the first states tosign and ratify the Istanbul

Convention, we have seen a backlash against the Istanbul Convention. Some

politicians claim that Turkey should withdraw from the convention.44

-since the beginning ofthe Covid-19 pandemic, the Government isonce again

preparing to put a possible amnesty for child abusers throughmarriage onthe

39 See Turkish Medical Association (2013) ‘Women's Abortion Rights in Healthy and Safe Conditions cannot be

Restricted’17 January 2013. Available at: https://ttb.org.tr/haberarsiv_goster.php?Guid=6702500c-9232-

11e7-b66d-1540034f819c&1534-D83A_1933715A=227f04f9eb83322bd9734332b1be2ed579778de2; see

section 9.9, below.

40 Article 103 ofthePC states: ‘Any person who abuses a child sexually is sentenced to imprisonment from

three years to eight years. Sexual molestation (includes) sexual attempt(s) against children who are under

the age of fifteen or against those (who) attained the age of fifteen but lack (the) ability to understand the

legal consequences of such act(s).’ The draft bill aimsto lower the age at which sexual relations with a child

(under the cover of marriage) is considered a crime from 15 years old to12 years old.Ifit passes, it will

‘pardon’the underage-marriage offences of approximately 10000 men currently serving prison sentences

on sexual abuse charges. Such an amnesty would whitewash and encourage illegal 'marriages' with

children. It would also discourage the victims from appealing tothe legal mechanisms and reintroduce the

concept of 'marriage with rape offenders' into law. The Government proposed a similar bill in 2016, but it

was withdrawn as a result ofthe reaction from women's rights groups and the public. The current attempt

to bring the bill before the Parliament for a vote has also caused outrage among rights groups in Turkey.

41 See section 10.1, below.

42 See DW (Deutsche Welle) (2018) ‘Mediation debates in family law“fosters discrimination against women”’

https://www.dw.com/tr/aile-hukukunda-arabulucu-tart%C4%B1%C5%9Fmalar%C4%B1-kad%C4%B1na-

y%C3%B6nelik-ayr%C4%B1mc%C4%B1l%C4%B1%C4%9F%C4%B1-k%C3%B6r%C3%BCkler/a-

48071832.

43 See Hurriyet (2016) ‘Married women can use their maiden name’http://www.hurriyet.com.tr/gundem/evli-

kadinlar-sadece-bekarlik-soyadini-kullanabilecek-40059512.

44 See section 10.1, below.