Summary: Identity Recognition without the Knife: Towards a Gender Recognition Ordinance for Hong Kong’s Transsexual People

Author: Sam Winter
Summarised by: Yoyo Lau (Associate)

Inspired by a Hong Kong Law Journal article which called for the Hong Kong government to enact the gender recognition legislation and the Court of Final Appeal decision of W v Registrar of Marriages, Sam Winter discusses the situation of the transsexuals in Hong Kong. It is noted that the Hong Kong government merely provides for gender recognition in relation to marriage, and only in the cases that the transsexuals concerned have undergone full sex reassignment surgery. In the article, Winter proposes a comprehensive and inclusive gender recognition legislation instead.
 
The Importance of Legal Gender Recognition for the Transsexuals

The transsexual people are the ones who display a desire to live and be accepted as a member of the opposite sex. In Hong Kong, they have to face many difficulties in their daily lives, including stigma, prejudice, discrimination, harassment and abuse. To improve their current situation, it is essential for the government to provide legal protection to the transsexuals in order to maintain their fundamental rights. Concerning legal arguments, refusing the opportunities of the transsexuals for gender recognition may breach the human rights law and other international laws regarding sexual orientation and gender identity. Hence, there is a crucial need for legal gender recognition for the transsexuals.
 
Objections against Preconditions for Gender Recognition that Involve Medical Procedures

When it comes to the gender recognition law in Hong Kong, it is strictly enforced that transsexuals are to carry out sex reassignment surgery before their experienced gender can be recognized. This is deemed to be problematic. In reality, some transsexuals in Hong Kong may not prefer carrying out any medical procedures for bringing their bodies in line with their experienced gender. Thus, the preconditions to undergo sex reassignment surgery may leave them in a limbo, affecting their psychological health and well-being. Moreover, the preconditions may put the transsexuals at risk of humiliating and discriminatory treatment. The preconditions may also include some coercive medicines and an assault on bodily integrity, leaving the transsexuals in a position that they are unable to give entirely free consent. Therefore, it is suggested that the gender recognition legislation in Hong Kong should not include any preconditions to undergo medical treatments.
 
Proposal of the Gender Recognition Legislation

The gender recognition legislations in different regions of the world are generally less uncertain and restrictive than that implemented by the Hong Kong government. Specifically, United Kingdom’s Gender Recognition Act of 2004 is used as a model for reference. The Act offers a mechanism that the transsexuals can apply to a Gender Recognition Panel for a Gender Recognition Certificate. The Act is comprehensive in the way that it extends gender recognition in various areas but not limited to marriage. It is also inclusive as it does not matter if the transsexuals have undergone any medical procedures. It is recommended that the Hong Kong government follow the practice in the United Kingdom so that the gender recognition legislation is more beneficial to the transsexuals in Hong Kong.
 
Comments

Through focusing on the transsexual people, the article points out the difficulties of the LGBT+ community and the lack of legal support to safeguard their fundamental rights. It is suggested that the Hong Kong government can make more efforts to know about the plight and need of the LGBT+ community, and introduce practical, comprehensive and inclusive policies to support their daily living.