An overview of transgender rights in Hong Kong

Letitia Chan & Jenny Yau

Authors Letitia Chan and Jenny Yau are law students at HKU enrolled in the BSocSc (Govt & Laws) & LLB and JD programmes respectively. 

Transgender rights have been the focal point of pride parades all over the world in recent years, and Hong Kong is no exception when the theme for the 2019 HK Pride was “Equal Justice, Equal Rights”.  However, there is much to strive for when it comes to transgender rights in Hong Kong.  This article aims to provide an overview of transgender rights in Hong Kong, highlighting two main cases while also examining our progress in comparison to neighboring regions in the Asia-Pacific. 

The most contentious transgender right pertains to identification documents, as in whether the state would require the person to undergo sex reassignment surgery (SRS) before they can legally change their gender.  In Hong Kong, transgender people are allowed to legally change their gender if they can present a letter from the Hospital Authority confirming that they have completed SRS, which includes removal and reconstruction of genitals. However, public authorities still refuse to alter birth certificates even after gender reassignment surgery, a practice which can be psychologically damaging for transgender people.[1] This reflects the limit of transgender rights in Hong Kong even when allowances are made. In the case of Q v. Commissioner of Registration, three transgender applicants who had not undergone SRS challenged the decision of the Commissioner of Registration to refuse a change of gender on their Hong Kong identity cards because of their lack of surgery and the requirement of medical proof. [2] The applicants’ grounds were that this practice is discriminatory and infringes on their right to privacy and the right to not be subjected to inhumane treatment. The Court ruled that the SRS requirement was suitable for the legitimate aim of establishing a guideline for whether a change of sex should be accepted, and there is a “reasonable balance” between the aim and the infringement of the applicants’ rights.[3] The judgment also highlighted that “until society is readily equipped with the mentality” to accept pre-operative transgender persons, the SRS requirement should remain in place. [4] This underlines the Court’s belief that Hong Kong is not very accepting of pre-operative transgender people, casting a disappointing light on the community’s progress towards equality. 

In contrast, South Korea has shown itself to be a pioneer in this area of trans rights.  In 2006, the Supreme Court of Korea ruled that transgender people have the right to alter their legal papers to reflect their reassigned sex, and in 2013, a court ruled that transgender people can change their legal sex without undergoing genital surgery.[5] This was a monumental decision, especially considering the traditional conservative Asian culture towards gender and sexuality. 

However, some states also make it mandatory for transgenders to be diagnosed with “Gender Identity Disorder” (i.e. gender dysphoria) before they can legally change their gender.  This remains the norm for many countries, despite the fact that the World Health Organization had removed “gender incongruence” which was used in reference to transgender people, from the mental disorders chapter in 2019.  Currently in Japan, SRS is still a prerequisite for changing one’s legal status.  To undergo the surgery, patients are required to be at least 20 years old, single, sterile, have no children under 20, as well as to undergo a psychiatric evaluation to receive a diagnosis of “Gender Identity Disorder”.  The eligibility standards of the operation have been criticized for being discriminatory and pervasive towards the dignity of transgender people.  The requirement of a diagnosis of gender dysphoria also perpetuates biases against LGBTQ+ individuals and establishes that policies in many countries do still reinforce discriminatory attitudes towards the transgender community, despite the giving of certain rights.

Another important aspect of trans rights is that of marriage, specifically the question of whether a transgender person can legally marry a person of their assigned gender at birth.  In Hong Kong, the landmark case of W v. Registrar of Marriages established that the right to marry under the Basic Law “should extend towards the right of a post-operative transgender person to marry” and that gender should be read to include gender adopted through SRS.[6] The Court acknowledged in their judgment of the case that the right of post-operative transgender people to marry their partners are permitted in countries such as China, South Korea, Japan and Singapore. On the issue of statutory interpretation, namely whether W, a post-operative transgender woman is regarded as a “woman” for the purposes of the right to marry under the Basic Law, the Court of Appeal held that purely on statutory interpretation, W does not count as a woman for this right based on precedent set by the UK case of Corbett.[7] However, on the issue of constitutionality, the Court of Final Appeal ruled that while the Registrar did not misconstrue the statutes, they “fail(ed) to give proper effect to the constitutional right to marry” based on restrictive criteria and are unconstitutional.[8] Therefore, the Court has a duty to issue a remedial interpretation. This case was seen as an important victory for the transgender community as the Court now recognizes the right of post-operative transgender people to marry a partner of the opposite sex. However, this victory is also rather narrow as the Court did not address the right of a transgender person who has not undergone SRS to marry and took pains to point out that same-sex marriage is not an issue to be addressed in this case. Even when there is progress, it comes at the cost of denying the same kind of progress to other people in the LGBTQ+ community. In the words of Puja Kapai, this illustrates “prejudice and indifference towards the needs of minorities” in Hong Kong, highlighting that there is still a long way to go in transgender people’s fight for equality.[9] However, we must also consider that it is the role of the legislature to decide policy, and not the Court, and that there is hope in the Court’s decision to rule for W on the right to marry. 

Reference
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[1] W v. THE REGISTRAR OF MARRIAGES [2013] HKCFA 39; p. 8.
[2] I.b.i.d., p. 31.
[3] I.b.i.d., p. 31.
[4] I.b.i.d., p. 25.
[5] Un, Ji-Won; Park, Hyun-Jung (16 May 2013). “Landmark legal ruling for South Korean transgenders”. The Hankyoreh, http://www.hani.co.kr/arti/english_edition/e_national/578323.html
[6] W v. THE REGISTRAR OF MARRIAGES [2013] HKCFA 39; p. 84.
[7] I.b.i.d; p. 19.
[8] I.b.i.d; p. 49.
[9] Puja Kapai, "A Principled Approach Towards Judicial Review - Lessons from W v. Registrar of Marriages," Hong Kong Law Journal 41 (2011): 64.​