ABSTRACT
It is believed that in order to eradicate historical and systemic inequalities, positive discrimination practices from the past to the present are imperative. This article examines the historical development of positive discrimination against women in Türkiye, exploring its parallel relationship with the evolution of women’s rights, social changes, and legal reforms.
I. INTRODUCTION
“Positive discrimination refers to policies that provide preferential treatment and support to historically disadvantaged or marginalized groups, aiming to promote social justice and equality.” The existence of positive discrimination over time has been ideologically linked to the development of the principle of merit. The fact that the principle of merit has a say in many areas such as social, economic, etc. has brought with it the concept of “Meritocracy”. Although the expression meritocracy is known only as a form of government, it means that the meritorious can obtain power. Meritocracy is known as an ideology against discrimination, but it has led to some negative discrimination due to its disregard for historical and systemic inequalities. Even if these negative discriminations are not the natural consequences of meritocracy, they are likely to occur when the balance of interests is taken into account and they are frequently encountered in our concrete lives. Positive discrimination, on the other hand, has emerged as practices opposed to negative discrimination that has developed over time; It aims to balance the disadvantages that groups that are negatively discriminated against in areas such as education, employment, health care and political representation are systematically exposed. Whenthe principles of positive discrimination, sometimes known as a synonym for reverse discrimination, and women’s rights are considered as a whole, positive discrimination against women includes legal arrangements that provide special rights and protections for women in order to ensure gender equality. In our article, following the evaluation of the elements that make up positive discrimination, positive discrimination practices in Turkish Law will be examined in the context of women’s rights, and the necessity of these positive discrimination practices in order to ensure equality will be discussed from an objective perspective.
II. CORNERSTONES OF POSITIVE DISCRIMINATION
Positive discrimination is a set of special policies and regulations implemented to ensure that historically disadvantaged or marginalized groups have equal opportunities in social, economic and political fields. The issues on which this concept is based; with the help of temporary and target-oriented practices carried out within the scope of equality; historical, systematic, genetic, etc. disadvantages.
A. Principle of Equality
The principle of equality was first enshrined in Article 7 of the Bill of Rights, stating that everyone is equal before the law and has the right to equal protection1. According to the relevant article, “Everyone is equal before the law and has the right to benefit from the equal protection of the law without distinction. Everyone has the right to equal protection against any discriminatory treatment contrary to this Declaration and against any incitement to such discriminatory treatment”2. Today, Article 10 of the Constitution serves as the legal basis for the principle of equality. According to Article 10 of the Constitution, “Everyone is equal before the law without discrimination on the basis of language, race, color, gender, political opinion, philosophical belief, religion, sect and similar reasons. Women and men have equal rights. The state is obliged to ensure that this equality is realized. Measures to be taken for this purpose cannot be interpreted as contrary to the principle of equality. Measures to be taken for children, the elderly, the disabled, widows and orphans of martyrs of war and duty, and disabled and veterans cannot be contrary to the principle of equality. No privilege can be granted to any person, family, group or class. State organs and administrative authorities are obliged to act in accordance with the principle of equality before the law in all their transactions”3. According to the provision of Article 11 of the Constitution, “The provisions of the Constitution are the basic rules of law that bind the legislative, executive and judicial organs, administrative authorities and other institutions and persons”4. With this provision, the obligation of all institutions and organizations to act in accordance with the principle of equality is emphasized. Positive discrimination is based on the principles of social equality and justice; For this reason, special measures are taken to eliminate the existing inequalities of disadvantaged groups and to provide them with equal opportunities in the material implementation of positive discrimination.
B. Elimination of Historical and Systematic Disadvantages
We have already mentioned that positive discrimination includes a series of policies and practices that aim to remedy the disadvantages that certain groups have historically and systematically suffered. Positive discrimination requires taking special measures to ensure that they have equal opportunities insocial, economic and political life. In today’s social life of Turkey, positive discrimination practices are absolutely necessary in order to prevent the aforementioned groups of people from being exposed to inequality.
C. Temporary and Targeted Applications
Positive discrimination policies are usually designed to be temporary and targeted to specific goals. The goal is to achieve equity over a period of time and eliminate the need for special regulations when these goals are achieved. When the need for special regulations disappears, the need for positive discrimination practices will also decrease. The fact that positive discrimination practices are temporary is of great importance in terms of not disturbing the balance against the other party.
III. OVERVIEW OF PERIODS
A. Ottoman Period
The legal system in the Ottoman Empire was divided into two main categories: customary law and Sharia law: Customary law is all of the legal rules applied by the state in areas such as administrative, financial and criminal law, based on the orders and edicts of the sultan. These rules are shaped according to the needs of the state, apart from Islamic law.
For example, although the Arazi Kanunnamesi remains within the boundaries of Islamic law, it contains customary regulations that give equal inheritance rights to sons and daughters. Sharia law, on the other hand, is a legal system based on Islamic law and shaped according to religious rules. This legal system has been seen in areas such as family law, inheritance law, and personal status. Sharia law was based on the Qur’an and Hadith, the main sources of Islam, and was applied by the qadi courts. In Sharia Law, the legal status of women is determined according to Islamic law. Women have certain rights in matters such as inheritance law, marriage and divorce. For example, in inheritance law, women received less shares than men. In customary law, on the other hand, the legal status of women is shaped according to the needs of the state5.
The legal status of women in the Ottoman Empire was largely based on Islamic law (Sharia) and traditional customs. While Islamic law granted certain rights to women, these rights were generally more limited than those granted to men. Women had certain rights in matters such as inheritance, marriage and divorce. For example, under Islamic law, women received a smaller share of inheritance than their brothers. In marriage, although women’s consent was important, the right to divorce was more limited than that of men.
The first important regulation that included positive discrimination against women in the Ottoman Empire was the İrade-i Seniyye dated 1847. İrade-i Seniyye, which means “Sultan’s Order”, is known as an important legal document in the Ottoman Empire. This document was issued by order of Sultan Abdülmecid. İrade-i Seniyye was accepted as the first step in a series of steps that initiated legal reform in the Ottoman Empire; It has been of great benefit in determining the principles regarding the application of the principles of equality, justice and the rule of law. This document was a document that aimed to eliminate discrimination by its nature by declaring that all Ottoman citizens were equal before the law. In addition, this order is seen as a step that started the modernization process in the Ottoman Empire. İrade-i Seniyye formed a basis for the modernization of the legal system in the Ottoman Empire and its convergence to the European legal system. In the Ottoman Empire, until this date, it was possible to give inheritance to girls in the division of inheritance, if there were no male children and for a price, in the İrade-i Seniyye; It is arranged in such a way that the state land will be divided equally between sons and daughters6. After the İrade-i Seniyye, another reform-oriented amendment for women was the Arazi Kanunnamesi of 1858. Arazi Kanunnamesi aimed to secure women’s economic independence and property rights by recognizing women’s right to own and inherit property. Arazi Kanunnamesi recognized the rights of women to acquire and bequeath immovable property, thus allowing women to take a more active role in economic life. This regulation is considered an important advance in the legal status of women in the Ottoman Empire. However, social and cultural barriers to the implementation of these rights have limited women’s full enjoyment of these rights. At this point, we would like to emphasize that laws and rules do not matter if they are not implemented7.
Other reforms carried out during the Tanzimat Period (1839-1876) also improved the legal status of women. In this period, girls’ right to education was expanded and women’s participation in social life was encouraged with the regulations made in the field of education. Following the Land Law, the first girls’ high school was opened on January 6, 1859. At the time when the first girls’ high school was opened, there were 13 boys’ secondary schools in the Ottoman Empire, and when we look at the difference between the number of secondary schools, we see the necessity of this positive discrimination with a concrete event. Another important development in the field of education for women is the 1869 Maarif Nizamnamesi. Apart from the primary schools, the concepts of administrative school as a high-level civilian secondary or high school were used for the first time in this regulation, and it was made compulsory for girls aged 7-11 to attend the primary school. After the regulation, compulsory primary education will come with the 1876 Kanun-i Esasi8. In the Kanun-i Esasi, which was promulgated on December 23, 1876, the first and last constitution of the Ottoman Empire, the right to equality before the law was regulated regardless of gender, and compulsory primary education for girls was repeated. Unfortunately, in the political field, as in the field of education, regulations have not been made; “The number of the members of the Assembly shall be organized in terms of every fifty thousand inhabitants of the Osmaniyeh”9. With the article, it was stipulated that one MP would be elected to the Parliament forevery 50,000 men, and women voters were ignored. In 1865, it was forbidden to buy and sell women as slaves and concubines in the Ottoman lands, but these reforms generally affected a limited segment of the population and did not spread to the broad masses of the people10.
“There is no logical reason for women’s political incompetence. The hesitation and negative way of thinking about it is a dying memory of a social quality of the past.” Mustafa Kemal Atatürk
The Second Constitutional Period (1908- 1918) was an important turning point in women’s rights in the Ottoman Empire. During this period, awareness of women’s rights increased and women took various initiatives to take more part in social life. With the proclamation of the Second Constitutional Monarchy, modernization and westernization efforts in Ottoman society gained momentum, and this process also affected women’s search for rights.
During this period, women defended their rights by establishing various associations and societies and struggled to take a more active role in social life. These associations, founded by women, have been active in issues such as education, working life, political rights and social reforms. One of the most striking of these associations is the “Osmanlı Müdafaa-i Hukuk Cemiyeti” in 191311. T ation in the legal journal “Women’s World”, the society carried out important studies on women’s rights and aimed to improve the social status of women.
Osmanlı Müdafaa-i Hukuk Cemiyeti made various demands on issues such as women’s right to education, participation in working life and political representation. In order to raise the level of education of women, the Society opened schools, encouraged women to have professions and made efforts to represent women in political life. In addition, awareness was raised on women’s rights through the society’s publications and efforts were made to gain public support. Among the activities of the Society were issues such as giving importance to women’s education, increasing their participation in working life and recognizing their political rights. Müdafaa-i Hukuk has advocated for women to take a more active role in social life and has carried out various activities and publications in this direction. The founder of the society, Nuriye Ulviye Mevlan Civelek, is also the founder of the Women’s World magazine. In Women’s World, women questioned the society they lived in and their position in this society, struggled against the inequalities and traditions that restricted them, and demanded to benefit from the freedoms of the Second Constitutional Period. They worked to “renew” their lives in the new urban life brought about by modernization and turned this effort into an organized women’s movement. She advocated a “women’s revolution” that would spread to the family, working life, law, education and all areas ofsocial life12. Müdafaa-i Hukuk-ı Nisvan Cemiyeti was an important part of the women’s movement in the last years of the Ottoman Empire and the first years of the Republic of Türkiye. In this period, women’s search for rights was not limited to associations and societies, but also made their voices heard through the press and broadcasting organs. Women writers and journalists have written articles on women’s rights, published magazines, and called for social reforms. These publications have created an important platform for women to take more part in social life and to recognize their rights.
In 1914, the first higher education institution for girls, “İnas Darülfünun”, was established. Before the establishment of İnas Darülfünun, “free lessons for women” started in darülfünun. As a result of the demand for the application and the need for teachers in girls’ schools, İnas Darülfünun was officially opened on September 12, 1914.
In general, this movement in women’s rights during the Second Constitutional Period led to significant changes in the status of women in Ottoman society. However, the reforms and initiatives made during this period generally affected a limited segment of the population and did not spread to the broad masses of the people. Nevertheless, the Second Constitutional Period went down in history as a period in which the foundations of the struggle for women’s rights were laid and women were organized to take more part in social life.
The period of the Teşkilat-ı Esasiye Law (1921 Constitution) can be described as a transitional period. The 1876 Kanun-i Esasi and the 1921 Constitution, which were currently in force, were in force at the same time and remained in force for a period of 3 years. The 1921 Constitution is a short constitution with 23 articles, it does not contain provisions on human rights because it is in force together with the Kanun-i Esasi13.
As a result of the ongoing wars, the distinction between men and women in the field of health has decreased to almost nothing. On this occasion, our women were introduced to the world of science in 1922. In this year, 7 female students enrolled in Istanbul Darülfünunu Faculty of Medicine. Even if we talk about all these regulations made in the Ottoman Period under the name of “positive discrimination”, it is clearly seen that these regulations are not positive discrimination in terms of their nature, but regulations made to eliminate negative discrimination.
B. The Republic Period
1. The 1924 Constitution
In the period from 1921 to 1924, the Ottoman Empire collapsed and the Republic of Türkiye was established. The 1924 Constitution adopted the principle of the supremacy of the constitution14 and was instrumental in the transition to a single-constitutional state system. Article 69 of the Constitution states that “Turks are equal before the law and have an obligation to obey the law without discrimination. All kinds of group, class, family and individual privileges are abolished and prohibited.” In the eighty-seventh article, “All Turks, men and women, are obliged to pass primary education. Primary education is free in public schools” and education at the primary level has been made compulsory for men and women.
On March 3, 1924, the “Law of Tevhid-i Tedrisat “ (The Law of Unification of Education) was enacted. Thus, education was secularized and all educational institutions were attached to the Ministry of Education. Girls and boys began to receive education with equal rights15.
It is obvious that the proclamation of the Republic brought with it many innovations. While every revolution takes our country one step further, unfortunately, women have not yet fully gained the right to vote and be elected. While the 1924 constitution was being prepared, women’s right to elect and be elected as deputies came to the fore, but political rights could not be provided to women because the idea of granting these rights only to men was dominant in the general assembly of the Grand National Assembly of Türkiye. The necessary legal change was made in 1934 as a result of the legislative proposal submitted by Prime Minister İsmet İnönü and 191 deputies to amend the Constitution and the Election Law. The proposal was discussed in the Parliament on December 5, 1934, and the amendment proposal was accepted by the votes of all 258 deputies participating in the voting in the 317-member Assembly. Within the framework of these constitutional amendments, as a result of the amendments made on 11 December 1934 in the Intibah-ı Parliamentary Law (Parliamentary Election Law), the rights recognized in the constitution were also regulated by the election law16.
2. The 1961 Constitution
One of the distinctive features of the 1961 Constitution is that it was the first constitution in which the principle of the social state was adopted. The principle of equality is stated in Article 12 of the 1961 Constitution as “Everyone is equal before the law, regardless of language, race, gender, political opinion, philosophical belief, religion and sect. No privilege can be granted to any person, fam-ily, group or class.” In addition, this constitution was the first constitution to mention gender equality separately17.
3. The 1982 Constitution
The principle of equality in the 1982 Constitution is stated in Article 10 titled “Equality before the Law” that “Everyone is equal before the law without discrimination on the basis of language, race, color, gender, political opinion, philosophical belief, religion, sect and similar reasons”18. It is arranged as follows. With the “Law on the Amendment of Certain Articles of the Constitution of the Republic of Türkiye” published on 07.05.2004, Article 10 of the Constitution. The article has been changed19. The new Article 10 states that “Women and men have equal rights. The state is obliged to ensure that this equality is realized. Measures to be taken for this purpose cannot be interpreted as contrary to the principle of equality. Measures to be taken for children, the elderly, the disabled, the widows and orphans of martyrs of war and duty, and the disabled and veterans shall not be considered contrary to the principle of equality.”20 and “The state is obliged to ensure the realization of this equality.” and referred to positive discrimination practices. In our opinion, this provision has a character made in order to ensure material equality as well as formal equality.
4. Turkish Civil Code (“TCC”)
The adoption of the Old Civil Code No. 743 in 1926 significantly affected the development of women’s rights in social fields. However, over time, the contradiction of the Old Civil Code with international conventions led to the amendment of Law No. 743.
“A woman is obliged to take care of her home.”
The phrase “A woman is obliged to take care of her home.” in Article 153 of the old Civil Code is perceived as imposing the duty of taking care of the house and the common child on the woman when we look at the wording of the article. In the New Turkish Civil Code No. 4721, this obligation is stated in Article 186 as “Spouses manage the union together. Spouses participate in the expenses of the union with their labor and assets in proportion to their strength.” Regarding this article, regardless of how effective it is, we can say that it is aimed to eliminate the perception that the head of the family is a man.
“The domicile of the husband shall be deemed to be the domicile of the wife and the parents, the place of the child under their custody and the place of the court shall be deemed to be the domicile of the person under guardianship.”
Again, in Article 21 of the Old IPC, the provision that the residence of the woman is the residence of her husband21; The Constitutional Court did not annul it on the grounds that it was beneficial in terms of ensuring family unity. We believe that if the husband’s residence is used to determine the wife’s residence, the woman becomes less important and the husband’s residence is prioritized. If the aim is to ensure family unity, we are of the opinion that it would be more appropriate to take the joint residence residency as a basis for both men and women.
Commodity Regime
In the New Civil Code No. 4721, the regime of participation in acquired property has been adopted instead of the property separation regime in case of dissolution of marriage22. With this regulation, property separation would be applied to the properties acquired before the effective date of the Acquired Property Participation regime dated 01.01.2002, but the spouses could make the properties acquired before 01.01.2002 subject to the Acquired Property Participation Regime by making a property regime agreement.
“A woman takes her husband’s surname upon marriage...”
In Article 187 of the Turkish Civil Code No. 4721, “A woman takes her husband’s surname when she marries; However, she can also use her previous surname in front of her husband’s surname with a written application to the marriage officer or later to the registry office. A woman who previously used two surnames can benefit from this right for only one surname.” and the principle of “unity in surname” is taken as a basis. In our opinion, changing a woman’s surname with marriage and changing it again when divorced is an act that may cause difficulties for women in practice. However, this situation was not considered contrary to the principle of equality, as even if the surname of the man was taken as a basis in the decisions of the Constitutional Court, the woman could also use her own surname if she wished23. A change occurred regarding the surname of the married woman after the HGK decision dated 30.09.2015, and finally, with the decision of the General Assembly of the Court of Cassation dated 30 September 2015, numbered 2014/2-889 E., 2015/2011 K., it was decided that it is a human right for a married woman to use only her own surname in the marriage union; It has been decided that this right should be exercised equally between men and women. However, since there is still no amendment to Article 187 of the Turkish Civil Code, the use of this right is only possible if the woman files a lawsuit regarding her surname after marriage.
“… A wife may engage in a business or art with the husband’s express or implied permission.”
Article 159 of the old Civil Code states: “Regardless of the procedure adopted by the husband and wife for the administration of their property, the wife may engage in a business or art with the express or implied permission of the husband.”24 and greatly neglected women’s freedom of prof negligence25. According to Article 192 of the new Civil Code, one of the spouses does not have to obtain the permission of the other in choosing a profession or job, but the spouses are obliged to consider the peace of the marriage union and to be careful not to shake the marriage union in the choice of job26.
“The husband is the head of the union. The proper maintenance of the house, wife and children belongs to him.”
Another issue regulated in the Civil Code is the family residence. Article 152/2 of the old Civil Code stipulates that “The right to choose the common residence belongs to the husband alone” with the phrase “The right to choose the common residence belongs to the wife and children.” Today, the practice in this regard has changed, and the residence to be chosen by the spouses is reserved for them and is independent; If the husband or wife is in possession of the family home, the consent of the other spouse is required. According to Article 194 of the New Turkish Civil Code titled Family Residence, it is obligatory to obtain the consent of the other spouse in the transactions regarding immovables that have the quality of family residence, and even the spouse who is the owner cannot make legal savings on the family residence without the consent of the other spouse27.
“In order to marry, a man must be fifteen years old and a woman must be fourteen years old...”
In the adoption of the old Civil Code in 1926, the ordinary age of marriage was eighteen for men and seventeen for women; In the new Civil Code, it is set at seventeen for both men and women. The extraordinary age of marriage was increased from fifteen for men and fourteen for women in the Old Civil Code to sixteen for both men and women in the New Civil Code. When the extraordinary age of marriage is raised, the parents or guardian are heard before the decision, whenever possible. However, there is a segment that argues that the age of sixteen is not suitable for marriage, regardless of men and women. Regardless of whether people feel psychologically or physiologically ready to marry, a marriage age limit that is lower than the age limit for obtaining a driver’s license may not be healthy even with the permission of the parents.
5. Turkish Criminal Code (“TCC”)
In the old Turkish Criminal Code, crimes against women’s bodies were considered crimes against society28. With the new Turkish Criminal Code, this understanding has changed, and crimes against women have been included in the scope of crimes against individuals. On this occasion, the penalties were also aggravated.
In the new Law, there is no provision regarding the postponement and dismissal of marriage in the crime of rape, and the provisions that express the distinction between married and single women, the distinction between virgins and non-virgins, the criminalization of ill-treatment between husband and wife based on a complaint, and the provisions that discriminate against illegitimate children29. At this point, we would like to briefly touch on the issues that are not included in the new Turkish Criminal Code.
Article 434 of the former Turkish Criminal Code No. 765 allowed the punishment of the perpetrators to be reduced if there was more than one perpetrator in rape crimes and the victim married one of the perpetrators. These regulations are not included in the new Turkish Criminal Code.
According to Article 440 of the Old Turkish Criminal Code, it was sufficient for a woman to have an extramarital relationship once, while in order for a man to be considered as having committed the crime of adultery, he had to keep a woman who was not married to someone else in order to get along as husband and wife in the house where he resided with his wife or in another place known to everyone. The Constitutional Court annulled Article 440 of the Turkish Criminal Code, which criminalized the adultery of a woman, on the grounds that it was contrary to the equality principle of the Constitution30. The reasoned decision was published in the Official Gazette dated 13 March 1999 and numbered 23638.
Another important issue regulated in the new Turkish Criminal Code is that it abolishes the distinction between private life and social life in sexual crimes and punishes the crime of sexual assault committed by the male spouse against the woman. Unfortunately, even today, there is a perception in society that the woman has to meet the sexual demands of the male spouse to the woman. It should be accepted by everyone that the right of a woman to say no does not disappear with marriage, and that she can terminate an act when she does not want to continue it, even if it has started with consent.
The crime of performing and having a religious marriage without an official marriage, which is regulated in Article 230/5-6 of the Turkish Criminal Code, was canceled by the decision of the Constitutional Court dated 27.05.201531. Unfortunately, although the aim of this annulment decision was not to restrict freedom of religion, it led to the legitimization of polygamy by having religious marriages with more than one person without an official marriage. If the crime of intentional murder is committed against the child born to the religiously married spouse, this crime will be considered as an increasing circumstance since it is committed to the subordinate, but if it is committed against the religiously married spouse, it will not be a qualifying situation. In addition, the acceptance of only religious marriage without a civil marriage has consequences in the form of women not being able to claim any rights in economic areas such as inheritance, alimony, etc.
The crime of “Breaking the Maiden with the Promise of Marriage”, which expresses the distinction between virgin and non-virgin women, has not been carried over to the New Turkish Criminal Code. Since this crime is not aimed at preventing sexual abuse, but at protecting virginity, it is seen as a positive development that it is not carried to the new Turkish Criminal Code.
Similarly, in the old Turkish Criminal Code, the crime of abducting a girl and a woman for the purpose of lust or marriage, in which the distinction between married and single women was clearly committed, was regulated separately from the crime of threatening freedom, and if the abducted woman was married, it was regulated to be increased. This regulation clearly reflects the discrimination between married and unmarried women.
It can be described as a positive development that Article 438, which stipulates that rape and abduction acts in the old Turkish Criminal Code are reduced in the penalty if they are committed against a person who makes prostitution her profession32, and Article 462, which considers the punishment for adultery and murder committed against a relative caught in illegitimate sexual intercourse and similar acts, are not included in the new Turkish Criminal Code. As a matter of fact, a woman’s profession is that she is a prostitute; it does not mean that her body, her sexual integrity, is less valuable; It is necessary to accept that all women are equal regardless of their lifestyles and mindsets.
Another issue discussed within the framework of the Criminal Procedure is that the woman’s statement is essential. The main purpose here is to collect evidence that supports the woman’s statement and to carry out the investigation by expanding it in line with the woman’s statement. In addition, it is difficult to prove sexual crimes and to collect evidence that can be used in the proof phase compared to other crimes. Taking the woman’s statement as a basis is an arrangement to continue the process in the light ofthe woman’s statement, rather than directly making the suspect guilty33.
Another issue that we need to mention within the scope of the Turkish Criminal Code and that has been controversial all over the world for years is abortion. Article 99 of the Turkish Criminal Code regulates the crime of “Child Miscarriage”, while Article 100 regulates the crime of “Abortion”. In our country, the legal limit of abortion is 10 weeks by a specialist physician with the consent of the woman. According to Article 99 of the Turkish Criminal Code, if the woman becomes pregnant as a result of a crime of which she is a victim, there is no sanction if the pregnancy, whose duration is not more than twenty weeks, is terminated by a specialist physician with the consent of the woman34. However, a court decision is required to prove that the pregnancy occurred as a result of a crime. When the concrete conditions are evaluated, waiting for the court decision will exceed the 20-week period, thus making it impossible for the abortion to take place. In Article 13 of the Regulation on the Execution and Supervision of Uterine Evacuation and Sterilization Services, it is regulated that “in order to terminate a pregnancy that does not exceed 10 weeks, permission must be obtained from the pregnant woman if she is of legal age and single, and from both herself and her spouse if she is married”35. Another confusing aspect here is the consent of the spouse. According to some, it is necessary to obtain the consent of the spouse while exercising the right to abortion, while according to others, this situation is related to the woman and the woman’s body, so the presence or absence of the spouse’s consent will not have an effect on the exercise of the right to abortion.
6. Labor Law (“LL”)
It is possible to say that regulations such as maternity and breastfeeding leave, prohibition of heavy work and overwork of pregnant women, and death pension in our Labor Law are aimed at preventing the disadvantages that women may experience. First of all, we will talk about the maternity leave given to working women in the Labor Law No. 4857, which took its final form in 2003, which existed years ago. The duration of maternity leave has been increased by the Labor Law, and according to Article 74 titled “Maternity work and breastfeeding leave”36, it is regulated that female workers cannot be employed for eight weeks before and after birth. In addition to these, it is stated that the female worker will be given leave within the scope of her regular check-ups during pregnancy. An employee whose spouse gives birth is given 5 days of unpaid leave. Regardless of the benefit it will provide, the fact that such a permission is given to the spouse of the person who gives birth can be considered as a help to the woman is also a positive development for everyone.
Again, according to Article 74 of the Labor Law, a pregnant or newly born employee cannot be employed in heavy work, and a pregnant and newly born worker cannot be made to work overtime. In addition, this will not be reflected in the worker’s wages.
Article 72 of the Labor Law regulates the “prohibition of working underground and underwater” and completely prohibits women from working underground and underwater, regardless of age. Although this prohibition is imposed because women are anatomically weaker than men, it contradicts the principle of equality. The reason for this is that the assumption that all women are physically weaker than all men is wrong. Determining the suitability for the job within the framework of the concrete case will be a more accurate regulation. With Article 34 of the Social Insurance and General Health Insurance Law, a woman who does not have a pension due to her own insurance is entitled to receive the pension of her deceased mother or father37. Unmarried women, married women who later divorce or widow are entitled to receive the death pension. According to one view, this regulation is inaccurate on the grounds that it removes women from business life. Because some people avoid having a profession with the motive of not cutting the death pension. The issue of retirement age also has differences of opinion. While one view says that women should have the right to retire earlier because they are more active in home life than men in general, the other view argues that it would be more appropriate to alleviate women’s responsibilities at home instead of restricting the duration of their working life. As a matter of fact, when responsibilities are not shared equally, early retirement of women will not bring prosperity. Today, the retirement age is 58 for women and 60 for men. Article 14 of the Labor Law No. 4857 stipulates that a female employee will be entitled to severance pay if she terminates her employment contract voluntarily within one year from the date of marriage38. Although it seems to be a regulation for the benefit of women, this regulation has a side that legitimizes the necessity of a woman to leave her job and take care of her home and children after marriage. In our opinion, it would be more appropriate to focus on providing comfort to women when they get married and have children instead of the aforementioned regulation. When we talk about the Labor Law, let’s not forget March 8. International Women’s Day is celebrated annually on March 8 to celebrate women’s social, economic, cultural, and political achievements and to draw attention to the struggle for gender equality. The origins of this day date back to the strike of 15,000 women in New York City in 1908 over working hours, wages and suffrage. At the International Socialist Women’s Conference held in Copenhagen in 1910, March 8 was accepted as International Women’s Day with the suggestion of Clara Zetkin. The first official celebrations took place in 1911 in Austria, Denmark, Germany and Switzerland. In 1977, the United Nations General Assembly recognized March 8 as International Women’s Day39.
7. International Agreements
There are a number of international agreements on positive discrimination against women, to which Turkey is a party. For example, the Universal Declaration of Human Rights is a document adopted by the United Nations General Assembly on December 10, 1948, which specifies the rights and freedoms that all human beings have from the moment they are born. With this declaration, equality between men and women was mentioned for the first time in an international document. The European Convention on Human Rights, on the other hand, is a Convention that prohibits discrimination. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which was adopted by the United Nations in 1979 and entered into force in 1980, is an important turning point in the history of women’s rights. CEDAW is an international document created to protect women’s human rights and ensure gender equality. The main purpose of this convention is to guarantee the economic, social, cultural, civil and political rights of women and to oblige the states parties to take the necessary legislative and administrative measures to prevent discrimination against women. CEDAW contains several provisions to ensure that women have equal rights in areas such as education, health, employment, and political participation. Article 2 of the Convention stipulates that States parties shall take all appropriate measures to prevent discrimination against women and make the necessary legal arrangements for this purpose. In addition, the CEDAW Committee supervises the compliance of states parties with the convention and requires them to submit reports on a regular basis. These reports are important in terms of monitoring whether the provisions in the contract are implemented or not. Although there have been positive developments for gender equality after the Convention, it should be noted that de facto equality has not been fully achieved in practice and the obligations imposed by the Convention on the contracting states have not been fully fulfilled.
IV. CONCLUSION
“It is necessary to believe that everything we see in the world is the creation of women. ” Mustafa Kemal Atatürk
Throughout history, changing production relations and economic systems have assigned different roles to men and women, often leading to discriminatory practices that excluded women from social life. Although the changing roles of men and women, which are the only elements in ensuring the continuity of the system shaped in line with the relations of production, have taken on a discriminatory structure that excludes women from social life from time to time, women have gained their identity in the modern world with factors such as the changing world and the necessity of women’s participation in production relations. The transition of the world to a digital era over time is a phenomenon accepted by the majority of the society we live in. With the entry into the digital age; We think that the qualities that were considered distinctive and important in the past, in other words, the qualities that are likely to lead to discrimination, have started to lose their importance today. This synthesis creates the basis for a society where individuals are evaluated independently of their identities and everyone can express themselves on equal terms. In such a society, the need to discriminate disappears and an environment is provided in which everyone can realize their potential to the fullest. Negative discrimination means that individuals who are included in that group under certain group names are subjected to unfair treatment through actions against the person, and it causes deep wounds in society. Such discrimination prevents individuals from realizing their potential and deepens social inequalities. Positive discrimination, on the other hand, refers to temporary policies implemented to eliminate the wounds and existing inequality in society, so it stands directly opposite to negative discrimination. In our opinion, in an ideal society, there should be no need for either negative or positive discrimination. An order in which every individual has equal opportunities and their talents and efforts are at the forefront creates a world where all kinds of discrimination are eliminated. Therefore, a world in which all forms of discrimination are eliminated represents an order in which both negative and positive discrimination are unnecessary.
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FOOTNOTE
1 Universal Declaration of Human Rights Online, https://www.hsk. gov.tr/Eklentiler/Dosyalar/9a3bfe74-cdc4-4ae4-b876-8cb1d7eeae05. pdf (Last Access Date:16.07.2024).
2 Universal Declaration of Human Rights Online, op. cit.
3 Article 10 of the Constitution.
4 Article 11 of the Constitution.
5 Betül Kayar, Tanzimat Period Ottoman Law Reforms, https://www. gsimecelle.com/view.php?indexType=gsi_books_alias&documentId=340.03.KAY. T.2021_1655807778_ page_0&q=*&DocName=340.03.KAY. T.2021_1655807778.gsi&qsec=&matterID= Online (Last Access Date:10.07.2024).
6 Ottoman Land Order from the 1858 Land Law to the Republic.
7 Halil Cin/ Gül Akyılmaz, History of Turkish Law, https://www. gsimecelle.com/view.php?indexType=gsi_books_alias&documentId=340.09.CIN. T.2019_1571899725_ page_0&q=*&DocName=340.09.CIN. T.2019_1571899725.gsi&qsec=&matterID= Online (Last Access Date:10.07.2024).
8 Berna Yürüt, Tanzimat Post-Tanzimat Ottoman Women’s Movement and Legal Demands https://tbbdergisi.barobirlik.org.tr/m2017-2017-1728 Online (Last Access Date:10.07.2024).
9 Wikipedia Parliamentary https:// tr.wikipedia.org/wiki/Meclis-i_Meb%C3%BBsan.
10 Legal Regulations for Women, https://kadem.org.tr/kadinlara-yonelik-yasal-duzenlemeler/ Online, (Last Access Date:11.07.2024)
11 Yürüt, op. cit.
12 Wikipedia, Women’s World.
13 Dr. Ali Kuyaksil, Women’s Rights and Development in Turkish Constitutions, https://dspace.ceid.org. tr/xmlui/bitstream/handle/1/83/ekutuphane4.2.9.7.pdf?sequence=1&isAllowed=y Online (Last Access Date:11.07.2024).
14 Engin Şahin, Constitutions of the Republic cited in Sinem Servet Özdemir “Positive Discrimination in Turkey in the Context of Women’s Rights”.
15 Legal Regulations for Women, https://kadem.org.tr/kadinlara-yonelik-yasal-duzenlemeler/ Online (Last Access Date:11.07.2024).
16 Zübeyde Terzioglu, “The Political Rights of Turkish Women According to the Press (1930-1935)”. YÖK Thesis Database. Marmara University Institute of Turkic Studies Master’s Thesis, Online (Last Access Date:11.07.2024).
17 Sinem Servet Özdemir, op. cit.
18 The original version of Law No. 2709 is Online https://www. mevzuat.gov.tr/MevzuatMetin/1.5.2709-19821018.pdf the Constitution of the Republic of Turkey (Last Access Date: 14.08.2024).
19 Some Articles of the Constitution of the Republic of Turkey Law on the Amendment of https://www.anayasa. gen.tr/5170sk.htm Online (Last Access Date: 14.08.2024).
20 Official Gazette No. 25469 dated 22 May 2004.
21 Repealed Provisions of the Turkish Law No. 743 Civil https://www.mevzuat. gov.tr/mevzuatmetin/5.3.743.pdf Online (Last Access Date: 14.08.2024).
22 Turkish Civil Code No. 4721 https:// www.mevzuat.gov.tr/mevzuatmetin/1.5.4721.pdf Online (Last Access Date: 14.08.2024).
23 Sultan Tahmazoğlu Uzeltürk, “Decisions on Name and Surname Individual’s Right to Identity”, AYHD, Volume: 3, Issue: 5, 2014 cited by Servet Özdemir, op. cit.
24 Repealed Provisions of the Turkish Law No. 743 Civil https://www.mevzuat. gov.tr/mevzuatmetin/5.3.743.pdf Online (Last Access Date: 14.08.2024).
25 Official Gazette dated 2 July 1992 and numbered 21272 https://www.resmigazete.gov.tr/arsiv/21272.pdf.
26 Turkish Civil Code No. 4721 https:// www.mevzuat.gov.tr/mevzuatmetin/1.5.4721.pdf Online(Last Access Date: 14.08.2024).
27 Turkish Civil Code No. 4721 https:// www.mevzuat.gov.tr/mevzuatmetin/1.5.4721.pdf Online(Last Access Date: 14.08.2024)
28 Servet Özdemir, op. cit.
29 Nur Centel, “Protection of Women Victims of Sexual Crimes”, Gift to Kenan Tunçomağ, Istanbul 1997, 59 et seq.; Centel, “Critical Approach to the Provisions of the Law to Protect Women Against Violence”, Human Rights Law and Women (eds. B. Dinçkol)., Istanbul Commerce University, Istanbul 2003.
30 It was annulled by the decision of the Constitutional Court dated 23/06/1998 and numbered E. 1998/3, K. 1998/28.
31 https://www.resmigazete.gov.tr/ eskiler/2015/06/20150610-5.pdf
32 Repealed Provisions of the Turkish Penal Code No. 765. https:// www.mevzuat.gov.tr/MevzuatMetin/5.3.765.pdf Online (Last Access Date: 14.08.2024).
33 Servet Özdemir, op. cit.
34 Turkish Criminal Code No. 5237, https://www.mevzuat.gov.tr/ mevzuat?MevzuatNo=5237&MevzuatTur=1&MevzuatTertip=5 Online (Last Access Date: 14.08.2024).
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36 Labor Law No. 4857 http:// www.mevzuat.gov.tr/MevzuatMetin/1.5.4857.pdf.
37 Social Insurance and General Health Insurance Law, https://www. mevzuat.gov.tr/mevzuat?MevzuatNo=5510&MevzuatTur=1&MevzuatTertip=5.
38 Labor Law No. 4857 http:// www.mevzuat.gov.tr/MevzuatMetin/1.5.4857.pdf.
39 Wikipedia March 8, https:// tr.wikipedia.org/wiki/D%C3%BCnya_Kad%C4%B1nlar_G%C3%B Cn%C3%BC.
