Criminal Boundaries of Being and Turkey’s Future in Europe: Penalization of Gender and “Immoral” Sexuality under Turkey’s 11th Judicial “Reform” Draft

The 11th Judicial “Reform” Draft marks a decisive turn in Turkey’s authoritarian transformation (see here, here and here), recasting criminal law as a moral device of identity governance by penalizing all who deviate from state-prescribed heteronormativity. Framed as necessary to “protect the family”, “raise physically and mentally healthy generations”, and “combat gender-neutrality movements”, the draft extends criminal liability to identity itself by targeting those who “act against their biological sex”. Its reach extends beyond LGBT+ communities to women’s emancipation and broader gender non-conformity. Women who defy traditional gender roles, gender-nonconforming men, or anyone whose appearance, conduct, attitude, or sexuality is deemed “immoral” can now fall within the scope of Turkish criminal law. This development renders Turkey’s position within the European legal order even more fragile.

Criminal Law as a Guardian of “Biological Sex” 

Through proposed amendments to Art. 225 of the Turkish Penal Code (TPC), the draft criminalizes “attitudes and behaviors contrary to one’s biological sex and general morality” and any public “encouragement, praise, or incitement” of such conduct, prescribing prison sentences from one to three years. The draft further creates a distinct offence for same-sex engagement or marriage ceremonies, punishable by one and a half to four years’ imprisonment, applying not only to the parties themselves but also to those who attend or support such ceremonies in solidarity. Parallel to this, the draft introduces Art. 93/A TPC, creating a new offence of “unlawful gender transformation”. It penalizes both medical professionals who perform and individuals who undergo gender-reassignment procedures outside the state’s tightened legal framework in the proposed amendments to Art. 40 of the Turkish Civil Code, with prison terms ranging from one to seven years and heavy fines for practitioners.

We argue that this “reform” revisits the genealogy of penal institutions and fuses penal and biopower into a single authoritarian project, seeking to criminalize “gender” (expression) itself – as if the very idea of gender plurality could be outlawed. In this configuration, criminal law functions with an authoritarian agenda of state morality, defining, or, in a Foucauldian sense, qualifying, measuring, appraising and hierarchizing (see p. 144) which bodies, identities and forms of life may lawfully exist. Behind the official rhetoric of “family protection” lies a deliberate strategy of exclusion, in which any deviation from state-defined “biological sex” is a punishable offense against the moral order of the nation. As a result, the proposal nullifies Turkey’s normative commitment to the European legal order grounded in the European Convention on Human Rights (ECtHR). 

How Under-Protection and Over-Policing Prepared the Ground for Criminal Law

An authoritarian dual regime of under-protection (omission) and over-policing (repression) targeting women’s emancipation and LGBT+ existence has long defined the Turkish state’s approach to gender and sexuality. Failure to protect combined with active control produced the structural imbalance that built the social and political infrastructure on which the criminalization of gender and non-conforming sexuality could now easily take root. The current proposal is not a coincidence, but rather the culmination of a long-term strategy of omission and repression by the government. 

For decades, Turkish authorities relied on administrative tools rather than formal criminal law to suppress public queer visibility. Prosecutors repeatedly sought to dissolve NGOs such as Kaos GL, claiming that their very existence violated “public morality” and threatened “the traditional image of the family.” Municipal governors banned Pride marches and other public gatherings under the twin banners of “public order” and “public morals”, while police tolerated -and at times even joined in- verbal and physical attacks on demonstrators. The peak point of hate politics against both the LGBT+ community and women’s emancipation was Turkey’s withdrawal from the Istanbul Convention (see also here). Through this persistent pattern of administrative obstruction, even the visibility of gender and sexual diversity became precarious.

Empirical studies have revealed how this administrative hate politics at the state level has translated into everyday life in Turkey. A decade ago, Ceylan Engin analyzed systematic violence against trans and queer people, exclusion from employment and housing, and the deliberate denial of medical care. Engin concluded that queer citizens are trapped between state neglect, repression, and the hostility and hatred of civil society (see p. 854), producing a continuum of non-protection and stigmatization. Almost ten years later, similar findings with almost no change appeared again in the study by Yasemin Öz, who examined cases in which the victims were members of the LGBT+ community. The effect, as both Engin and Öz observe, is that the state has already abandoned its protective function, yet preserved its coercive one to stigmatize those deemed “misfits”. This effect has been exacerbated by a judgment of the Turkish Court of Cassation: Today in Turkey, citizens are effectively permitted to incite violence and issue threats against LGBT+ individuals if LGBT+ groups attempt to organize or hold Pride parades during Ramadan (Court of Cassation, E. 2021/15645, K. 2024/915).

In conclusion, the strategic stigma produced through administrative governance based on “public morals” prepared the discursive and institutional soil for the current criminalization project. Thus, long before Turkey’s 11th Judicial “Reform” Draft ever reached parliament, its socially punitive infrastructure was already in place. What began as under-protection, the state’s failure to prevent violence, gradually turned into over-policing and has now transformed into the state’s determination to punish difference. Together, these developments paved the road from administrative morality to the penal governance of gender.

Before and After the Draft: Turkey in the European Legal Order

The proposed penal provisions (Art. 93/A and Art. 225 TPC) targeting LGBT+ identities and women’s emancipation directly conflict with the ECtHR case law. Since Dudgeon v UK, the Court has consistently held that the criminalization of consensual same-sex intimacy violates Article 8 of the Convention. Similar conclusions were reached in Norris v Ireland, Modinos v Cyprus and A.D.T. v UK. The Court emphasized that even unenforced penal provisions have a “continuing interference” on private life and therefore breach Article 8 (see Dudgeon v UK, para. 41). Both sexual orientation and gender identity constitute protected “other status” under Article 14 of the Convention. Any difference in treatment on these grounds requires particularly convincing justification. Appeals to “public morality” or “tradition” have repeatedly failed to satisfy that test (see Smith and Grady v UK; Salgueiro da Silva Mouta v Portugal). Turkey’s own Constitutional Court (AYM) has many times echoed Strasbourg’s reasoning. It has protected LGBT+ organizations and ruled many times in favor of equality and dignity for sexual minorities (see here, here and here). Yet its competence has been degraded and undermined by subsequent political interference, leaving it in a state of paradoxical existence as “Schrödinger’s Constitutional Court”: simultaneously present and absent, independent and captured. Additionally, the Turkish government has shown persistent reluctance to implement ECtHR judgments. Turkey currently holds the record for the highest number of unimplemented rulings among all Council of Europe member states.

The possible enactment of the proposed Articles 93/A and 225 of the TPC would likely intensify the ongoing debate about possible sanctions against Turkey within the Council of Europe (CoE) including the suspension or expulsion of its membership under Article 8 of the Statute of the Council of Europe.  Such an adoption would also have direct implications for European asylum law, particularly regarding Turkey’s fragile designation as a “safe country” under EU asylum procedures. More broadly, the possible enactment of the draft could further strain the already fragile framework of EU–Turkey relations and raise questions about the credibility of Turkey’s long-stalled EU accession process, which the government continues to invoke rhetorically. In Germany, if such an enactment led to the systematic persecution of LGBT+ persons in Turkey, Section 7(1) No. 10 of the Code of Crimes against International Law (VStGB) would allow prosecution as a crime against humanity based on sexual orientation. Given the limited scope of this post, we focus on whether it would be strategically viable to invoke Article 8, either to deter Turkey from enacting the 11th Judicial “Reform” Draft or, in the worst case, to expel it as a member state.

Cooperation instead of Article 8 Procedure against Turkey 

The same question was raised by Esra Demir-Gürsel after Russia’s expulsion from the CoE. Demir-Gürsel argued that Turkey’s expulsion is legally conceivable but strategically difficult, given Europe’s reliance on Ankara in its geopolitical strategy and regional security. Yet this balance of interests could shift if Articles 93/A and 225 TPC were enacted. Under Article 8 of the Council’s Statute, Turkey must uphold the Article 3 principles of human rights, democracy, and the rule of law. Any serious infringement such as criminalizing identity and enforcing “biological sex” through penal law could in principle trigger Article 8 proceedings, a possibility already discussed in Turkey’s case. However, we argue taking such measures would risk alienating domestic democratic and social opposition to the government’s authoritarian politics targeting LGBT+ and women’s rights. Rather than isolating Turkey, the threat of expulsion – or even suspension or expulsion itself – could paradoxically strengthen the government’s authoritarian use of criminal justice and its nationalist narrative, as Ankara has long demonized the CoE and the ECtHR, accusing them of interfering in Turkey’s internal affairs. 

In conclusion, to prevent the enactment of Articles 93/A and 225 of the TPC, the CoE, together with other international organizations and NGOs, should demonstrate solidarity with Turkey’s LGBT+ community and women’s rights associations, raising awareness and providing visible support – even if primarily symbolic. Such solidarity would affirm that the authoritarian moralization of criminal law can never become a new normal within the European legal order.