Gender Stereotypes in Employment Case of Hulya Ebru Demirel v. Turkey (Appl. No: 30733/08 - 19 June 2018) “Because She Was not a Man”

Çalışma Hayatında Cinsiyet Stereotipleri Hülya Ebru Demirel / Türkiye Kararı (Başv. no: 30733/08 - 19 Haziran 2018) “Çünkü O, Erkek Değildi”

Nazlı Hilal DEMİR

Presented here is the work on the analysis of the ECtHR Hulya Ebru Demirel v. Turkey (Appl. no: 30733/08) judgment concerning a dismissal as a security officer from sector employment on grounds of gender stereotypes.In this regard, a quick overview about the facts and Court’s assessments will be given first. Then the judgment of the Court will be reviewed and some important conclusions will be drawn.

Gender Stereotypes, Gender Discrimination, Prohibition of Discrimination, Hulya Demirel v. Turkey, Article 14 of the ECHR.

Bu çalışma, mevcut cinsiyet stereotiplerine dayanılarak güvenlik görevlisi bir kadının işten çıkartılmasına ilişkin AİHM Hülya Ebru Demirel - Türkiye kararının incelemesini içermektedir.Bu kapsamda çalışmada öncelikle, kısaca bahse konu başvuruya ilişkin olay, olgular ve Mahkemenin değerlendirmesine yer verilecek, ardından AİHM’in bu kararının bir analizi yapılarak bazı önemli sonuçlara varılacaktır.

Cinsiyet Stereotipleri, Toplumsal Cinsiyet Ayrımcılığı, Ayrımcılık Yasağı, Hülya Ebru Demirel - Türkiye Kararı, AİHS madde 14.

To begin, I want to underline the fact that people still assume women are ‘incompetent’, ‘weaker’ and more ‘sensible’ than men. We believe that women are not capable and strong enough to fit for some jobs and these gender stereotypes impede ensuring gender equality in the employment field. We still do not expect women to be able to do what men can do. Therefore, women are still prohibited by law from hundreds of jobs all over the world. With the intention of protecting (!) women from health risks or violence, certain jobs are by law reserved for men only.

We can see most of the countries, also Turkey have laws that prevent women from working in various jobs. For example; Labour Act of Turkey (Law No:4857) Article 72, 73 and 85 contain restrictions (on women) on underground and underwater work, night work and arduous and dangerous work. There is no need to emphasize that these restrictions mostly based on gender stereotypes that women are the weaker sex that needs to be protected.

In this context, the case of Hulya Ebru Demirel v. Turkey which I am going to deal with, concerned a dismissal as a security officer from sector employment on grounds of gender (stereotypes). By the reason of being a very recent judgment (June 2018) and due to the rareness of ECtHR cases concerning sex discrimination in employment, this case is worth to be discussed.

Facts in Short

The applicant sat an examination in order to become a civil servant. She was successful in the examination and she was informed by the State Personnel Department attached to the Prime Minister’s office that she had been appointed to the post of security officer of TEDAŞ (Turkish Electricity Distribution S.A.), a State-run electricity company.

However, on an unspecified date TEDAŞ informed the applicant that she would not be appointed to the post in question, as she did not fulfil the requirements of “being a man” and “having completed military service” a duty, which is fulfilled only by men in Turkey.

Therewith the applicant lodged an action against TEDAŞ to the local administrative court, requesting the annulment of the decision. The local administrative court annulled the decision of TEDAŞ. The court held that the requirement of “having completed military service” should be considered to apply only to male candidates and that there had been no restriction on women working as security officers in TEDAŞ. It further noted in that connection that since there had not been a specific requirement to recruit only male candidates for the said post, the fact that the applicant had been rejected solely on account of her sex had been unlawful.

However, the Supreme Administrative Court overturned the judgment by the local administrative court on appeal by TEDAŞ. The Supreme Administrative Court considered that given that there had been a requirement of “having completed military service”, the post had been reserved for male candidates only. Thereafter the applicant’s subsequent appeals were all unsuccessful.

Thereupon, she lodged an appeal at the ECtHR alleging that the decisions of the administrative authorities and the courts constituted sex discrimination, relying on Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life). She also complained of the unfairness of the proceedings before the administrative courts under Article 6 (right to a fair trial). However, in this study I will deal with the discrimination complaint only.

Judgment

Alleged Violation of Article 14 in Conjunction with Article 8 of the Convention

First, the Court reiterated that it had already set out detailed reasons for justifying a difference of treatment in the case of Emel Boyraz v. Turkey (Appl. No: 61960/08) in 2014. It considered that Article 8 is applicable to the applicant’s complaint. Because, “the concept of private life extends to aspects relating to personal identity and a person’s sex is an inherent part of his or her identity. Thus, a measure as drastic as a dismissal from a post on the sole ground of sex has adverse effects on a person’s identity, self-perception and self-respect and, as a result, his or her private life.”

In the present case, the Government maintained that there had been an objective and reasonable justification for the refusal of the domestic authorities to appoint the applicant to the post of security officer. They noted that the post in question had been reserved for male candidates who had completed military service. According to the Government such a requirement could not be deemed discriminatory in view of the nature of the duties of the post, which involved using firearms and working at night.

Therefore, it appears that the administrative authorities considered that women were unable to face those risks and assume such responsibilities! In response to this, the applicant disagreed with the Government that the difference in the treatment of female and male candidates could be justified by taking into account the dangerous factors implied in the occupation of a security officer.

The Court underlined that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference of treatment could be regarded as compatible with the Convention. After examining whether there were reasonable and objective grounds that justified such a difference of treatment, the Court held that, the impugned difference of treatment had not pursued a legitimate aim. The Court concludes that this difference in treatment, of which the applicant was a victim, amounted to discrimination on grounds of sex. To this respect, it concludes that there has been a violation of Article 14 taken in conjunction with Article 8 resulting from the refusal of the authorities to appoint, and then their subsequent dismissal of the applicant from the post of security officer.

To put it in a nutshell, the Court’s reasoning for the violation judgment is that the domestic authorities did not give any reasons other than applicant’s gender for her not being appointed.