Gender Affirmation: an Uphill Battle for Equality and Wellbeing

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John Tseung
 
John Tseung is a law student at HKU enrolled in the BBA (Law) & LLB programme and the BA (Literary Studies) & LLB programme respectively.
 
Gender, in the modern context, can no longer be equated with the rigid dichotomy between “male” and “female”. Since 2019, The World Health Organisation no longer considers transgender a “mental health condition”. [1] It now defines gender as a social construct that “varies from society to society and can change over time”. [2] This change aligns with the social reality that people may identify different from their sex at birth. The manifestation of gender through one’s acts and appearances, also known as gender expression, also does not necessarily conform with the traditional perceptions of gender.
 
The notion of gender identity is also closely linked to one’s mental wellbeing. Those exploring their gender identity may experience hostility and discrimination, which adversely affect their mental health, resulting in feelings of distress, isolation, and depression. [3] In this regard, the concept of gender affirmation, defined as a “personal process where a trans or gender diverse person implements steps to live as their defined or affirmed gender identity”, could come into play. [4] Through gender affirmation, one becomes more comfortable living with their chosen gender identity.
 
As peers, members of society can also participate in the process of gender affirmation, by recognising and respecting individual choices over gender identity. This conveys a sense of encouragement and support. According to a 2016 study, gender affirmation has been found to lower depression and raise self-esteem. [5] On a state level, laws reinforcing gender affirmation is an effective means of tackling discrimination faced by transgender persons. Currently, legislation on gender recognition has been enacted in multiple jurisdictions, and can be characterised into four different models.
 

1. The self-declaration model

Several countries have adopted self-declaration as the primary mode of gender recognition. Under this system, people who wish to change their gender shown on official records may freely do so without having undergone medical gender conversion. They are also not required to submit a medical diagnosis of gender dysphoria as proof. This approach is consistent with a resolution of the Parliamentary Assembly of the Council of Europe, which called for the development of “quick, transparent and accessible procedures, based on self-determination” for the purpose of changing one’s registered sex. [6] The self-declaration model is currently adopted in countries such as Denmark, Ireland, and France.

1. A surgery-free, but otherwise detailed model

An alternative model adopted in other countries does not require surgery or medical treatment for the legal sex to be changed, but imposes restrictions otherwise by requiring supporting documents. An individual would generally be required to submit a medical diagnosis of gender dysphoria, or to complete the real-life test (RLT). Under the RLT, transgender individuals are required to live full-time in their identified gender role, so as to determine whether they truly intend to live as that gender. This is the model adopted in Spain, Germany, and Iceland. Notably, the United Kingdom decided to continue with this model, as prescribed by the Gender Recognition Act 2004, despite the support from an overwhelming majority for such requirements to be abolished. [7]

1. The surgery-requiring model

Some jurisdictions require sexual reassignment surgery (SRS) for the legal sex to be changed. The current system in Hong Kong resembles this model the closest, as both genital reconstruction and sterilisation are necessary for an application for a change in the registered sex. Other examples of jurisdictions requiring SRS include Queensland and New South Wales.

1. A model with a wide range of requirements, including surgery

In addition to SRS, some jurisdictions impose other requirements and restrictions on a change in the legal sex. In Japan, for example, transgender people who wish to have their gender identity affirmed by the authority must not have underage children. Countries including China and Finland also stipulated specific requirements for an application in the change of legal sex to be entertained.
 
Controversy over each model
 
As shown from the vastly divergent approaches adopted by different jurisdictions, there has yet to be a consensus over the issue of gender recognition. The models requiring surgery have been strongly criticised for violation against human rights. Genital reconstruction and sterilisation are both highly invasive procedures, which may lead to irrevocable damage to one’s well-being. The Law Society of Hong Kong firmly opposes SRS as a prerequisite for gender change, as an “undesirable coercive effect” may result. It also warned of potential violation against fundamental rights, including bodily integrity and freedom from torture, as protected various international conventions. [8]
 
Doubts have also been cast on the requirement for medical diagnosis, following the updated exposition of gender by the World Health Organisation. The World Professional Association for Transgender Health also calls for the removal of medical barriers to gender recognition. [9] The refusal of leading authorities in labelling transgenderism as a medical condition indeed suggests that the requirement for medical diagnosis ought to be revised.
 
Some also oppose the self-declaration model, as allowing individuals to declare their gender supposedly distorts the definition of “gender” and “sex”. There are also concerns over the possibility of harassment against women by those who self-identify as female. Claims that the transgender movement may encourage children to undergo sex change have also been made. [10]
 
Conclusion
 
While social developments mark some success in the advocacy of transgender rights, transgender people are still marginalised in many cases, unable to enjoy a life of social equality and dignity. [11]  In the long run, an established system of gender recognition would be necessary to protect the civil and medical rights of transgender people. It is essential for the government to take the leading role in promoting gender affirmation, so as to tackle discrimination faced by the transgender community.
 
Summary

This article examines the possibility of using gender recognition law as a means of promoting gender affirmation, a process through which transgender people become more comfortable with their chosen gender. Various existing models adopted by different jurisdictions, as well as criticisms of each of them, are also considered. 
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Reference
1. Transgender no longer recognised as 'disorder' by Who. (2019, May 29). BBC. https://www.bbc.com/news/health-48448804.
2. World Health Organization. (2021, May 24). Gender and health. World Health Organization. Retrieved October 13, 2021, from https://www.who.int/news-room/q-a-detail/gender-and-health.
3. Gender and Mental Health: Support and advice. YoungMinds. (n.d.). Retrieved October 13, 2021, from https://www.youngminds.org.uk/young-person/coping-with-life/gender-and-mental-health/
4. Gender Affirmation Guide - VU. Victoria University . (2021, August). Retrieved October 13, 2021, from https://www.vu.edu.au/sites/default/files/gender-affirmation-guide-2020.pdf.
5.Glynn, T., Gamarel, K., Nemoto, T., & Operario, D. (2016). The Role of Gender Affirmation in Psychological Well-Being Among Transgender Women. Psychology of Sexual Orientation and Gender Diversity. https://doi.org/10.1037/e504962016-001 
6. Assembly, P. (2015, April 22). Discrimination against transgender people in Europe. Parliamentary Assembly of the Council of Europe. https://pace.coe.int/en/files/21736/html. 
7. Office, G. E. (2020, September 22). Analysis of the responses to the Gender Recognition Act (2004) consultation. GOV.UK. https://www.gov.uk/government/publications/response-to-the-gender-recognition-act-2004-consultation. 
8.The Law Society of Hong Kong www.hklawsoc.org.hk. (2018, February). Gender Recognition Consultation Paper: Part 1: Hong Kong Lawyer. Gender Recognition Consultation Paper: Part 1 | Hong Kong Lawyer.http://hk-lawyer.org/content/gender-recognition-consultation-paper-part-1.
9. WPATH Identity Recognition Statement. Transgender Europe. (2017, November 16). https://www.wpath.org/media/cms/Documents/Web%20Transfer/Policies/WPATH%20Identity%20Recognition%20Statement%2011.15.17.pdf. 
10. 用得其所 跨出明天——對香港設立性別承認制度之意見書（公眾版）. (2017, September). 香港性文化學會有限公司. http://www.scs.org.hk/downloads/用得其所跨出明天.pdf. 
11. "The Law Undermines Dignity". Human Rights Watch. (2021, May 25). https://www.hrw.org/report/2021/05/25/law-undermines-dignity/momentum-revise-japans-legal-gender-recognition-process.