Beyond the Body—Hong Kong Transgender People’s Struggle for Legal Recognition

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​Jolie Lam

Author Jolie Lam is a law student at HKU enrolled in BA(Law) & LLB programme

At a certain point in life, we have all felt out of place—those fleeting moments where we believe we don’t belong. Holding on to that feeling, we can attempt to understand people who have lived their lives uncomfortable in their own skin, society turning them away at every junction. Our society is built on a clearly constructed binary—male and female. With those are traits and behaviors attached to each—whoever fails to conform quickly become outcasts jeered at.  

Transgender people are born into bodies they don’t belong in. They grow up feeling different, ostracized because of their preference of hobbies or the way they prefer to dress, reminded of their incongruence of mind and body every trip to the toilet. Some transgender people would also have gender dysphoria—the mismatch of their bodies and minds plunging them into the depths of anxiety. Being transgender is by no means a mental illness; dysphoria is considered as one not because of the disconnection of gender identity and biological sex, but simply that the discrepancy is a cause of distress and depression of such severity that warrants clinical intervention. Transgender is simply an identity, not a medical condition. It’s very human for our gaze to linger on people who look a little different from us. But these people our eyes find in a crowd of many live their lives coping with these looks cast their way, looked at their mirrors and wonder whether their reflection will ever show who they truly are. The reality for trans people is the grim sense of being rejected and excluded in a world that finds comfort in norms. 

Arguably, society is beginning to warm up to these people and removing the stigma having surrounded them for so long. The 2013 case of W v Registrar of Marriages [1] has affirmed a transgender woman’s right to marriage. While it is worth celebrating that the court recognizes one’s gender is not determined at birth, the judge has acknowledged her identity as a woman only with a letter issued by the Hospital Authority certifying the sexual reassignment surgery that she has undergone. The case has considered a previous case on the same issue, Corbett v Corbett [2], where the definition of “women” was constructed on the narrow ground of sex assigned at birth, with the idea of marriage focused on the ability to procreate. W has acknowledged the different society we live in today and rejected the idea of transgender women being “pseudo-women,” a term coined in Corbett that suggested transgender women are not “truly” women.  

While the court has taken the step to affirm transsexual women’s rights, it is still unfortunately confined to women who have gone through the complete sexual reassignment surgery. That is enough to illustrate society’s fixation on biology still lingers. The law is still considering organs and sexual characteristics as important determinates of gender. Psychological and social dimensions were part of the court’s consideration, yet the ultimate qualification to the identity of “women” in the eye of law remained the uterus, ovaries and breasts that are constructed.   

Sexual reassignment surgery might be the right call for some—when parts of their body are the source of anxiety and depressive thoughts, to be free of them would be a relief. But people can be transgender without wanting to lie on a surgical table and have part of themselves carved out and other parts built in. Just like the way not every cisgender person, born in their right bodies, are fully comfortable with all their body parts; yet they learn to live with their “imperfect bodies.” The court has mentioned “open[ing] the question” for people undergoing less extensive treatment to qualify a legal change in gender. Yet under the seemingly accepting statement is the implication that surgery is required to consider your gender identity changed. For the surgery to take place, one would likely have to undergo procedures like mental diagnosis and hormonal treatment. The process becomes dragged out, a mental toll on people who already suffer every day: a form filled with the inevitable question about gender or simply asked for their ID. Why is it that we seem to become less of who we are just because of our body parts? 

In Germany, to change one’s gender requires the feeling of not belonging to the sex assigned at birth and to have felt compelled to live as their desired sex for three years. It is enough for the court when it seems likely that their sexual identity will not change. [3] Perhaps some would question the lack of proof, but shouldn’t it be us and only us who can determine and identify what gender we belong to? Imagine applying to change your major because you’re miserable with it, only to be told that you cannot prove it. How would that feel?  

We might have a long way to go in Hong Kong from reaching the equality we wish to see. In 2017 the government published a consultation paper by the Inter-departmental Working Group on Gender Recognition, considering the requirements for gender change and exploring possibilities of different types of gender recognition scheme, including a dual-track recognition scheme that provides the opportunity of not relying on stringent medical qualifications. [4] Yet even today in 2020, no concrete steps have been taken to put into place any of the schemes discussed. Perhaps complete equality is unattainable, but perhaps we also need to have new little hopes. The government acknowledging the possibility for change is in itself something to be delighted for. As incremental as the change W presents may be, the court is a representation of prevailing attitudes in society. It is a representation that we as a society is becoming more welcoming, accepting and empathetic. As long as we continue to extend our understanding to those who are different, but no less worthy, we might just push the government to make real and substantial changes. Hold on to the hope, the fight, and the day where the law recognizes everyone as they are may not be much further away.  
 
[1] W v Registrar of Marriages [2013] 3 HKC 375 
[2] Corbett v Corbett, [1998] BCC 93 
[3] 1980 Transsexuals Act (Transsexuellengesetz TSG) 
[4] Inter-departmental Working Group on Gender Recognition. (2017). Consultation Paper: Part 1 Gender Recognition