Implementation of central concepts

• Author: Kadriye Bakirci
• Pages: 15-31

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3 Implementation of central concepts

3.1 General (legal) context

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

equality law

No surveys and/or reports have been published in Turkey in recent years that provide

insights into the legal definition, implementation and limits of the ce ntral concepts of

gender equality.

3.1.2 Other issues

Although it is possible to observe important improvements in line with the EU acquis on

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

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

‘gender equality’ focuses on equality 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.36 In other words,

this approach normalises the ‘natural division of duties derived from biological differences’,

which is in direct c ontradiction of the concept of gender equality. As a result, the idea of

‘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 th e family.

3.1.3 General 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 in the MEA and in some provisions of the OA is sexist. The MEA of 1967

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

at all, since it is based on the idea that only men can work in the maritime sector.37 The

OA of 2011 has some provisions that r efer to ‘male worker/performer’ instead of using

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 in employment’, in Comparative 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, AB ve ABD Hukuku İle Karşılaştırmalı çalışma Yaşamında Kadın

Erkek Eşitliği Arayışı Cinsiyet Ayrımcılığı Yasağı ve 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 Hukuku ve 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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3.1.4 Political and societal debate and pending legislative proposals

After the Helsinki Europ ean summit in 1999 granted Turkey official EU candidate country

status, women’s rights in Turkey underwent a period of rapid legislative change and

development between 2001-2010. The EU demanded better women’s an d human rights

from Turkey and Turkey’s desire to join the EU moved the Government to change outdated

laws against women.

However, when it became clear that the EU would not extend membership to Turkey in

2006, it gav e the Government an incentive to roll back many of the gains in women’s

rights. This regression in women’s rights included:

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

Ministry of Family and Social Policies and then, in 2018, to the Ministry of Family

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

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

revealing its desire to define women only in terms 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 103 of 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 moth ers

cannot live without;

- although Turkey was one of the the first states to sign 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 of the Covid-19 pandemic, the Government is once again

preparing to put a possible amne sty for child abusers through marriage on the

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 of the PC 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 aims to lower the age at which sexual relations with a child

(under the cover of marriage) is considered a crime from 15 years old to 12 years old. If it passes, it will

‘pardon’ the underage-marriage offences of approximately 10 000 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 to the 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 of the 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.