November 02, 2023
By Dr. Betül Durmuş
I remember the first time I learned about Article 132 of the Turkish Civil Code (‘TCC’) in the family law classes in Turkey. This provision imposes a 300-day waiting period for divorced women to remarry unless they medically prove they are not pregnant. As a young woman and a law student, I remember finding this rule old-fashioned and demeaning for women and feeling disappointed that my family law professor made no mention of its discriminatory character.
Luckily, many years later on 27 June 2023, the Second Section of the European Court of Human Rights (‘ECtHR’ or ‘the Court’) unanimously found that the application of this rule was in violation of Article 8 and Article 14 in conjunction with Article 12 of the European Convention on Human Rights (‘ECHR’) in Nurcan Bayraktar v Türkiye. And it did so by finding that the domestic court’s reasoning suffered from gender-based stereotypes on female sexuality and women’s reproductive roles. The Turkish government already submitted its request for the referral of the case, which the Grand Chamber will examine on 6 November 2023.
This case marks another notable step towards the anti-stereotyping approach of the Court. In what follows, I explain the factual background and the Court’s reasoning on the merits. I do not aim to address the Court’s decision on preliminary objections of the Turkish Government (par. 21-31) and on Article 6 (par. 94-104). Then, I show that the Court repudiated two distinct but interrelated aspects of gender-based stereotypes on women’s sexuality and reproductive roles. I also argue that although the Court solely focused on judicial stereotyping, alternatively, this case could be seen as a case of legislative stereotyping.
Nurcan Bayraktar’s divorce from her former husband became final on 21 January 2014. On 9 July 2014, she requested the Istanbul Anadolu Family Court to waive the waiting period without undergoing a medical examination to prove that she was not pregnant, arguing that Article 132 of TCC was contrary to the Turkish Constitution and international human rights obligations of Türkiye. The Family Court ordered her to undergo a medical examination and rejected to refer the case to Turkish Constitutional Court for a constitutional review. Following her rejection to undergo medical examination, the Family Court dismissed her request reasoning that the waiting period was to protect the rights of an unborn child and to avoid possible legal confrontations between the parties. It held that it cannot endorse a conception of equality which ignores the natural qualities of people, such as birth, maternity, or paternity. While it accepted that men and women are equal with respect to their rights, it pointed out that some qualities make them superior to each other. While men are physically stronger than women, a woman’s sensitivity and emotions as a mother are superior to those of men and ‘the capacity to give birth’ is particular to women (par. 8).
The applicant’s appeal against this decision was denied by the Court of Cassation on 6 May 2015. She also lodged an individual application with the Turkish Constitutional Court on 22 January 2016, which was found inadmissible on 3 April 2020.
On Article 8, the Court established that the case concerned the most intimate aspect of the applicant’s private life (par. 43) and decided that requiring her to undergo a medical examination to waive the waiting period was an interference with her right to private life (par. 44). Regarding the necessity of that interference, the Court first noted that as derived from the government’s submissions and the domestic regulations, Article 312 served the purpose of ascertaining filiation of the unborn child and avoiding ‘mixing up blood lines’ (par. 54). However, the Court drew attention to distinction between biological paternity and the legal presumption of paternity. Accordingly, if a woman becomes pregnant after divorce, this situation only creates a legal presumption of paternity of the former husband over the unborn child but does not ascertain biological paternity. Therefore, for the Court, the aim of preventing ‘mixing up blood lines’ seemed unrealistic and impractical considering the availability of other legal tools capable of determining paternity (par. 55). It also pointed out the fact that although the rule considered the finalization of divorce as the start of the 300-day period, many couples already lived apart before the initiation of divorce proceedings which last for years (par. 55).
Another important point raised by the Court was that by undergoing medical examination, divorced women had to expose an intimate aspect of their private and sexual lives to the attention of national authorities if they wanted to waive the waiting period. According to the ECtHR, the Family Court ‘does not seem to’ consider these aspects of the applicant’s private life when weighing competing interests at stake (par. 56).
Relying on its previous judgment Carvalho Pinto de Sousa Morais v Portugal (‘Morais’), the Court found that the reasoning of the Family Court reflected a traditional understanding which reduced female sexuality to its reproductive function:
Thus, the Court concluded that the interference with the applicant’s right to private life did not serve a pressing social need, was not proportionate to the legitimate aims pursued and was not necessary within a democratic society (par. 58).
On the question of whether there was differential treatment, the ECtHR first pointed out that differential treatment because of pregnancy could constitute direct discrimination based on sex if not justified (par. 81) and in the present case, because the waiting period only concerned women, it formed a different treatment on the basis of sex (par. 82).
Then, the ECtHR pursued with the issue of objective and reasonable justification. It noted that the aims of determining biological paternity of the unborn child and avoiding confusions, as submitted by the government, reflected a traditional conception of family based on the official institution of marriage. Although it considered this conception not in line with the evolution of European families (par. 86), it took into account that the family might occupy a sensitive and important place in some societies and that the unborn child, or the general public might have an interest in knowing the biological filiation (par. 87). However, it reminded that it already held that obliging divorced women to wait for 300 days unless they prove that they are not pregnant was not effective in achieving these aims (par. 88).
The Court once again highlighted the stereotypical assumptions of the domestic court:
According to the ECtHR, this formed direct discrimination based on sex, which was not justified by the aim of preventing uncertainties about the filiation of an unborn child (par. 90).
On the merits, Judge Krenc paid attention to the Court’s wording in evaluating the reasoning of the Family Court. In his view, the statements that the Family Court ‘does not seem to’ consider the applicant’s private life (par. 56 of the judgment) and it ‘appears to be’ in contradiction with international standards on gender equality (par. 89 of the Judgement) were not assertive enough (par. 5-6). He highlighted that, to identify gender discrimination and sexist stereotypes, words do have great importance (par. 7).
The most important aspect of Nurcan Bayraktar is that the Court openly condemned the stereotypical assumptions of the domestic court twice: first, for reducing female sexuality to women’s reproductive role and ignoring its importance for their personal development (par. 57), and second, for imposing a duty on women towards society solely based on their reproductive roles (par. 89).
Regarding the first dimension, this case was not the first of its kind in the Court’s history. The Morais case, which the Court cited in the judgement, addressed the domestic court’s decision claiming that sexuality is not important for a fifty-year old woman having two children compared to a younger woman. The ECtHR held that this assumption reflected ‘a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignores its physical and psychological relevance for the self-fulfillment of women as people.’ (Morais, par. 52) As the ECtHR’s first decision on stereotypes on female sexuality, it is rightly considered as a major step in the development of anti-stereotyping approach (by Lourdes Peroni on this blog and Senem Gürol) and a more transformative understanding of equality (by Liv N Hennigsen). By signaling reductive stereotyping on female sexuality, Nurcan Bayraktar consolidated the initials steps of the Morais case.
The second dimension, however, brings a new angle in the Court’s gender stereotyping case-law. The earlier cases naming stereotypes on women’s reproductive role did not engage with the issue of societal duty. For instance, Konstantin Markin v Russia established that ‘the perception of women as primary child-carers and men as primary breadwinners, cannot, by themselves, be considered to amount to sufficient justification’ for depriving men of parental leave (par. 143). Jurčić v. Croatia concentrated on the gender-based stereotype suggesting that women should not work or seek employment when they are actually or possibly pregnant (par. 83). Thus, Nurcan Bayraktar marks the Court’s first encounter with the framing of women’s reproductive role as a duty towards the society. Although the Court did not elaborate much on the fact that this was a new angle and did not refer to its previous case-law, it was still a valuable step deepening its anti-stereotyping approach.
While acknowledging that this case strengthened the Court’s anti-stereotyping approach, I also wonder whether the Court should have taken a wider perspective. It focused only on judicial stereotyping manifesting itself in the domestic court’s reasoning and as the concurring opinion suggested, it did so with a rather mild tone. Instead of a sole focus on judicial stereotyping, the Court could have tackled the stereotypical assumptions underlying the impugned legislation, particularly the assumption that women should bear the burden of waiting 300 days or exposing an intimate aspect of their lives due to their reproductive role.
The Court has engaged with legislative stereotyping in a limited number of cases. The term is employed by the Court for the first time in Alajos Kiss v Hungary concerning disenfranchisement of persons with mental disabilities under partial guardianship. It held that the absolute bar on their voting rights derived from long-lasting social prejudice which ‘may entail legislative stereotyping which prohibits the individualized evaluation of their capacities and needs.’ (par. 42) Later, it reiterated this expression in Kiyutin v Russia regarding denial of residence permits to persons with HIV/AIDS and extended the coverage to several vulnerable groups who were subject to similar prejudice (par. 63). In these cases, the Court seems to have developed a distinct understanding of legislative stereotyping coupled with prejudice and exclusion.
Although this particular understanding might not be directly applicable in Nurcan Bayraktar, I believe the stereotypical understanding of women’s reproductive roles stems directly from the legislation itself. As submitted by the Government, the waiting period is based on ‘an innate biological characteristic of women, namely the possibility of becoming a mother’ (par. 65), and it protects both the public interest and the interest of the unborn child (par. 39 and 66). While the Court rebutted these arguments in its examination on Article 8 and Article 14 (see above), it did not identify gender-based stereotypes inherent in the legislation as it did for the reasoning of the family court.
Indeed, the family court seems to reflect the exact rationale of Article 312 of TCC. The provision imposes the burden of ensuring interests of the public and the hypothetical unborn child in knowing the biological filiation entirely on the shoulders of women. In doing so, it treats women’s reproductive role as a duty suppressing their individual interests. In that vein, one can easily spot the similarity between this case and the cases on the right to safe abortion and reproductive health as they perpetuate the same gender-based stereotypes. The CEDAW Committee’s decision in the landmark case L.C. v Peru showed that the denial of medical services to a pregnant women ‘was influenced by the stereotype that protection of the fetus should prevail over the health of the mother’ (par. 8.15). Likewise, as argued by the Human Rights Committee member Yadh Ben Achour in his concurring opinion in Mellet v Ireland, Ireland’s ban on abortion also derived from a sexist stereotype suggesting that women should carry on their pregnancies regardless of the circumstances, so reducing them to procreative instruments (par. 4).
In Nurcan Bayraktar, the Court could have already identified similar stereotypes as inherent in Article 312 of TCC. Instead, the Court treats the family court in question as the main actor to blame. This approach would have been adequate if the court applied a legislation which was seemingly non-discriminatory. However, in the present case, focusing only on judicial stereotyping runs the risk of diverting our attention from the wider picture and how certain gender-based stereotypes structurally influence Turkish legislation.
This case advances the Court’s anti-stereotyping approach by naming two dimensions of stereotyping women’s sexuality and reproductive role: i) stereotypical understanding of female sexuality reduced to procreation and ii) treating women’s reproductive role as a societal duty. While the Court successfully identified the judicial stereotyping, it could have also considered this case as a case of legislative stereotyping, which would better reflect the structural character of the problem.