Q, R, Tse Henry Edward v. Commissioner of Registration: Court’s myopic attitude to non-operative transgender

Summarised by Ko Sum (Associate)

Background
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In Hong Kong, transgender persons can change their legal gender by an application to the Commissioner of Registration to change the gender entry on the ID card. To date, the Commissioner adopts a strict policy which makes completion of sex reassignment surgery (SRS)[1] a necessary[2] condition (the “Policy”).
 
The case

This judicial review application concerns the right to change the gender entry on their ID card of the transgender persons who have not undergone SRS, i.e. pre/ non-operative transgender[3]. The applicants are three transgender men who have removed their breasts, received hormonal treatments to attain certain male outward attributes and lived a life as a male. They, however, do not wish to undergo the SRS and thereby failed to change the gender entry on their ID card under the Policy. Therefore, they sought to challenge the strictness of the Policy in court, yet regrettably, the court rejected their applications.
 
The reasoning and its fallacy

Two major arguments were run by the applicants: the imposing of SRS requirement under the Policy violates (1) their right to gender identity[4] and/ or (2) their right not to be subjected to cruel, inhuman or degrading treatment[5].
 
Right to gender identity

Although modern day medical evidence predominantly categorizes transgenderism as a psychiatric disorder as opposed to physical illness, the court said the Policy is the only proportionate and workable model to secure a certain and objective administrative guideline governing the change in gender entry on ID.
 
The court said any other model short of requiring SRS would amount to “self-definition” models which essentially leave it up to the individual to decide if the gender entry on their ID should be changed. Such models will fail to ensure physical congruity, in particular that regarding sex organs, between transgender persons and their cisgender counterpart.
 
But why is it a problem to allow transgender persons to change their legal gender by way of a solemn declaration that they will for the rest of their lives live the life of the gender they identify as? And why is physical congruity so important?
 
In justifying the Policy, the court resorts to practical difficulties arising out of the “self-definition” models.  The court pointed to a few practical problems if a transgender person’s gender entry on ID does not correspond with their physical appearance. These practical difficulties could be categorized into two groups:
 

1. Embarrassment and discomfort – For example, in cases of emergency where the citizens would be grouped according to their gender and assisted by officers of the same gender. During evacuation and other rescue measures, there could be physical contact between the citizens and occasions where citizens would need to strip off their clothing, etc. If the physical appearance of the transgender persons does not correspond with their gender entry on ID, the other citizens of the same gender might feel embarrassed, uncomfortable or even violated in these occasions.    
2. Frustration of the purposes of certain policies or practices – For example, in activities like sports or education where persons of different gender are sometimes separated into two groups for the sake of fairness or other policy purposes. Allowing transgender persons to “self-define” their legal gender might unset these policy purposes.

 
Author’s view

The reasons grounding the court’s rejection of “self-definition” models cannot stand.
 
First, instances of alleged embarrassment and discomfort are not statistically supported but are no more than sworn statements from the government officials. Even if they are true, the source of such embarrassment and discomfort arguably lies within society’s lack of readiness to accept that transgender people sometimes need not have their sex organs removed and reassigned. Such lack of readiness, if true, arguably is also a kind of public opinion which the Court of Final Appeal has rejected as a reason for denying a group of minorities’ rights since the case of W v. Registrar of Marriages[6].
 
Second, so-called frustration of policies could be more easily disposed of. There is no obstacle to refine the rules for sports in order to ensure fairness while accepting the participation of transgender persons. Also, to say that the policy purposes are frustrated, e.g. in the context of single-gender schools, one excludes transgender persons who have not completed SRS from the gender they identify themselves as, and therefore falls into the public opinion fallacy above. The duty to resolve policy difficulties rests on the government and the respective institutions, not the transgender individuals.
 
Lastly, it is quite hard to understand why the court would consider such “embarrassment and discomfort” or “frustration of policy” to be outweighing the tremendous social prejudice and discrimination transgender people face because they could not have their gender entry on ID changed.
 
Right to physical integrity

The Policy requires the transgender persons to undergo an intrusive SRS in order to change their legal gender even when they do not have the need nor desire to do so. Therefore, the Policy essentially forces transgender persons to undergo unwanted and involuntary invasion surgical procedures if they want to have their right to gender identity recognised. The applicants argued that such coercion amounts to a violation of their absolute right not to be subjected to cruel, inhuman or degrading treatment.
 
Given the SRS being an internationally recognized, accepted and legitimate procedure, the court considered the true issue to be whether the transgender persons freely and voluntarily give informed consent to such treatments.
 
The court simply finds the consent to be informed as transgender persons are informed adequately on the health and medical risks involved in SRS even if they only undertake such treatment to change their legal gender.
 
The court also finds the consent to be given freely and voluntarily. The applicants extensively submitted on the prejudice and discrimination a transgender person faces before their legal gender is changed in daily life and these jeopardies coerced them to opt for SRS even if it is not what they want. In rejecting the applicants’ submission, the court compared non-operative trans seeking to change legal gender by way of undergoing SRS to the general situation where a person consents to an optional but legitimate surgery to eradicate a condition which is not life threatening in order to be free from certain prejudices or discrimination[7].
 
Author’s view

The court arguably did not expressly address the applicants’ submissions as to prejudices and discrimination they face. In finding the consent to be voluntary, the court compared to the general situation where one chooses to undergo an optional treatment to alleviate prejudices and discrimination. But what does the general situation refer to?
 
I take the view that the court was referring to situations such as skin or body part removal and reconstruction for persons disfigured by serious physical harm[8]. However, such situations are hugely different from what the non-operative trans face. First, the unfortunate persons in those situations want to undergo the surgery themselves but non-operative trans do not. Second, for such unfortunate persons, the prejudice and discrimination they suffer are only, though still regrettably, created by a small group of members in our society. The government has no direct participation in it (despite maybe only to the extent of not doing enough to educate the public). On the other hand, the prejudice and discrimination non-operative trans suffer are largely due to their failure to get their gender entry on ID changed before undergoing SRS. Essentially, the government, in strictly upholding the Policy, creates and magnifies the jeopardies non-operative trans face.
 
Upon this analysis, the court’s comparison cannot in any way support the rejection of the applicants’ argument. Such consent by non-operative trans to SRS is simply coerced by the unimaginably tremendous prejudice and discrimination they suffer because of the Policy.
 
Epilogue

The case is probably pending an appeal[9] but it is noteworthy that the court should be the last resort for minorities to have their rights protected and vindicated. The government has the very resources and responsibility to accommodate the transgender persons who form a part of our diverse and colourful community.


[1] A complete SRS normally includes removal of original genital organs and construction of genital organs of the person’s chosen gender.

[2] Save only for the cases where the transgender individual is medically unsuitable to undergo SRS.

[3] “Non-operative transgender”, as opposed to “pre-operative transgender” used by the court, would be a better term for reference to the applicants of this case since the former term denotes the transgender person having no intention to undergo an SRS at all as opposed to the latter which denotes transgender persons who have intention to undergo SRS but have yet to do so.

[4] Guaranteed under Hong Kong Bill of Rights Art. 14.

[5] Guaranteed under Hong Kong Bill of Rights Art. 3.

[6] (2013) 16 HKCFAR 112. Interestingly, the court in the present case, at [44], acknowledged that it must not take into account “the lack of a consensus as to whether the completion of the relevant SRS should be required for recognising the change of [legal gender]” but instead took into account the public opinion as to “when should a transgender person’s transition deemed complete”.

[7] Judgment paras. 100-104.

[8] Although arguably appearance enhancement surgery such as cosmetic surgery probably would fall into what considered to be the general situation by the court, I refuse to assume that our courts would compare trans people to persons who are simply not feeling happy enough with the inborn minor flaws on their appearance.

[9] SCMP, “Henry Tse, who lodged an unsuccessful judicial review, tells how living life as a transgender person can be difficult in Hong Kong”, (2 Feb 2019).
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