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However, when Tse and Q applied to change the gender status on their Hong Kong ID cards, the government rejected their request, citing their failure to meet a requirement stated in a local policy, which stipulates that a transgender person has to complete full sex reassignment surgery before changing their identity cards. For female-to-male transgender individuals, this means further operations to remove the uterus and ovaries, and construct male genitalia.
In 2018, Tse, Q, and another transgender man called R launched a legal challenge against the policy at the Court of First Instance, but the trio lost the case. Tse and Q then appealed the decision to the Court of Appeal, which was dismissed in a ruling handed down in early 2022 after Tse and Q appealed.
Tse and Q didn’t give up: They took their case to the Court of Final Appeal, the highest court in Hong Kong, where judges ruled in their favor. “Much like myself, many trans folks in Hong Kong, especially my friends who are trans men, have been longing for today’s final victory for years,” Tse told reporters outside the courthouse after winning the case on February 6.
The written judgment issued by the Court of Final Appeal recognizes that the medical procedures of genital removal and construction are “at the most invasive end of the treatment spectrum for gender dysphoria and, as the medical evidence shows, a full sex reassignment surgery is not medically required by many transgender persons (including the appellants) whose gender dysphoria has been effectively treated, and who are successfully living in their acquired gender.”
The judges also pointed out that because Tse and Q have kept a masculine outward appearance for a long period of time, the incongruence between their looks and the sex entry on their ID cards would produce “greater confusion or embarrassment, and render the gender marker’s identification function deficient.” The policy about full sex reassignment surgery was rendered unconstitutional by the court, which concluded that it harmed the pair’s dignity and violated the right to privacy protected in Hong Kong’s Bill of Rights.
Joanne Leung (梁詠恩 Liáng Yǒng’ēn), a Hong Kong trans activist who founded the Transgender Resources Center in Hong Kong and Love of Rainbow Resources, told The China Project that she welcomed the ruling and considered the written judgment as reflecting a better understanding of trans men’s needs and concerns. “For female-to-male trans people, genital removal and construction operations have a higher risk but lower success rate, and are more expensive compared with other sex reassignment surgery procedures. Many people prefer to seek hormone treatment and breast surgery only,” she said.
But Leung stressed that it is still unclear whether and to what extent the government will streamline its requirements for surgical procedures. “The judgment rules ‘full surgery’ as unnecessary, but they don’t provide a definition of the term, which opens space for interpretation,” she added.
Leung said that the Hong Kong government might end up removing the requirement over genital construction, but retain the one over genital removal, a legal practice adopted by several countries to make sure that transgender people are sterilized before making amendments on their legal documents, and avoid introducing more complicated matters into the existing legal system.
“For instance, if a trans man holds the reproductive capacity and chooses to bear a child after changing his legal sex to male, the government would then need to define the legal relationship between them and deal with subsequent legal issues,” Leung said. However, trans activist groups in many places have been criticizing the measure as violating the right of bodily integrity and autonomy of trans people. “This is a question of human rights,” Leung added.
The judgment also evaded discussing other controversial issues concerning the trans community in Hong Kong, such as an ongoing legal battle over access to public washrooms. “I think they tried to limit the scope of the ruling to information change on ID cards,” Leung said. “From a legal perspective, the right to change one’s gender listing on the ID card does not necessarily entail the right to access public bathrooms freely.”
According to Leung, the root of the problem stems from a murky definition of “legal sex” in Hong Kong’s legal system. While transgender people in the city are allowed to make changes to their ID cards, an important document that one has to show when accessing certain facilities, there’s no way for them to alter the sex entry on their birth certificates, regardless of whether they have fully transitioned or not.
“We can imagine a case in which a police officer refuses to accept a person’s ID card as the final proof of his/her legal sex and continues to ask him/her to present the birth certificate, which would contradict his/her gender marker on the ID card and the gendered facilities he/she is trying to access,” Leung said. “Without specifying the definition of legal sex, it is unclear whether this police officer breaks the law or not. This is why we have to continue pushing the government to establish a more comprehensive gender recognition act and fill the gap existing in the current legal system.”