Reflection on Court’s ruling of Gender Recognition Law

​Holly Wu
 
Author Holly Wu is a law student at HKU enrolled in the PCLL programme.
 
Could you imagine living in a body of your opposite gender? The thought of that could be distant. Nonetheless, to transgender people, it is their daily but enduring struggle. The sense of discomfort with one’s anatomical sex is undoubtedly an unbearable suffering, rigid legal gender identification law is the extra punishment on the misfortunes. 
 
Different models of gender recognition 
 
Among countries or regions which recognise the genuine needs for transgender people to alter their legal gender, Hong Kong is, regrettably, imposing the most stringent kind of gender recognition law[1]. In Hong Kong, completing full sexual reassignment surgery (SRS)  is a mandatory requirement to form a basis for the Commissioner of Registration to issue replacement document which reflects one’s changed gender.
 
Apart from the Hong Kong’s model, two other notable models can be summarized.
 
One is a semi-liberal model which doesn’t require one to undergo any SRS, but some kind of objective medical requirements are still mandatory to form the basis for one to alter their legal gender, like medical reports from psychiatrists. The requirements vary among countries. Currently, the UK and Canada are adopting this model.
 
Last year, the Scottish government had put forward the Gender Recognition Reform (Scotland) Bill for public consultation, which suggests the semi-liberal model is still humiliating and inhumane in the sense that the process requires objective assessment and takes way too long to be completed. A swift change to the liberal model was proposed[2].
 
A liberal model is one which imposes no medical requirement, including hormone therapy and SRS, nor objective psychiatric evaluation are required, a statutory declaration by the individual would be the only requirement for one to change one’s legal gender. Currently, Brazil and Argentina are adopting this model. 
 
The Court’s approach
In the W Case[3], it is uplifting to see that the Court expressly acknowledging that the journey for transgender people to seek legal and social recognition of their acquired gender as “a long and painful ordeal”[4]. However, the Court is observed to be reluctant in laying down liberal judgements to initiate changes in the system[5].
 
In 2015, a judicial review was brought by three FtM transgender applicants, who have acquired their legal gender as male in the UK[6] but not in HK, against the Commissioner of Registration, to challenge the constitutionality of mandatory SRS as prerequisite for one’s to change their gender on their identity card[7] in Hong Kong. 
 
In 2019, the judgement was laid down. Despite recognising SRS as an serious infringement of one’s physical integrity, the High Court acknowledged a legitimate aim in provision of  gender specific services[8], and uphold the mandatory SRS requirement for public interest. 
 
While it is overwhelming for recent judgements regarding cases with the same issue to rule in favour of the applicants’ right to privacy around the globe[9], the High Court ruled for the Commissioner and affirms that public interest should prevail in the current case given that only by having completed the SRS that most if not all of these practical difficulties on the public interest can be addressed.
 
Although it is not yet the final judgement, the Court stressed that a ruling for the applicants could be one with ripple effect, leading to a myriad of heads of problems to be solved, “unless and until the society as a whole is readily equipped with the mentality and facilities that could be catered.[10]”
 
Insights
The author wishes to point out three observations from the court’s ruling.
 
The first observation is the court accepting the legitimacy to adopt an objective standard for the government to form basis of recognising changes for one’s legal gender[11].
 
While the court is bound to follow the ruling of early cases to come to the conclusion, it is questionable whether SRS is the sole way to assess one’s dysphoria objectively. In the semi-liberal model, psychiatric reports would be a perfect example of an objective way to assess one’s gender incongruence. Such objective requirement is even drawing critics in some regions given its invasiveness to privacy.
 
The second observation is, in response to the public interest concern of provision of gender-specific services, the emphasis placed on the practicality of adapting a more liberal model (The “ripple-effect” concern forementioned).
 
In response, the author wishes to point out that the government and legislators are vested with responsibility and authority to initiate bills to offer protection to one’s right to privacy to their identity and right to be free from inhumane treatment. The Equality Act (2010) in the UK set an example of how the government can actually solve the practicality concern, by setting out scope of legitimate discriminations. Hong Kong also got similar examples of legitimate discriminations, like sex being the “genuine occupational qualification” found in the Sex Discrimination Ordinance[12]. The impracticality mentioned by the court is not an unsolvable obstacle.
 
The last observation is the court denying any involuntariness found in consent given by transgender people to undergo mandatory SRS[13].
 
With due respect to the explanations given by the Court on why such consent is regarded as an informed and voluntary one, it is unreasonable for the Court to ignore the coercion endured by transgender people. Coercion comes from, as pointed out by the leading Counsel for the applicants, the prejudice and humiliation when one’s appearance does not correspond to their legal gender on their ID[14]. Counting in the unbearable discrimination and the fear of being discriminated, it is hard to understand why such consent could be regarded as free from duress or undue compulsion.
 
 
Conclusion
 
In 2022, the United Nations will be officially removing gender incongruence as a mental disability. It is a leading step to no longer take people suffering from gender dysphoria as a patient requiring treatment, but an ordinary person whom the conventional and rigid system could not cater. Let’s seize chances to express our opinions on the urge to reform the gender recognition law and expect a more understanding community to people’s diversity.


[1] A “full” SRS involves not solely genital reconstruction, but sterilization. To illustrate, it means a transman is required to remove his ovaries and uterus, and construct an artificial penis which might not be fully functional. Not to mention other requirements like two medical reports diagnosing gender dysphoria, hormones treatment and years of experience living in the other gender, etc. 

[2] Gender recognition reform (Scotland) bill. (2021, February 16). Retrieved March 29, 2021, from https://www.scottishtrans.org/our-work/legislation/gender-recognition-reform-bill/

[3] W v The Registrar of Marriage [2013] HKCFA 39, HKLII, https://www.hklii.hk/en/cases/hkcfa/2013/39

[4] See para 102, W v Registrar of Marriage [2013] HKCFA 39 (CFA), HKLII, https://www.hklii.hk/en/cases/hkcfa/2013/39

[5] See Sham Tsz Kit v Secretary for Justice [2020] HKCFI 2411, HKLII, https://www.hklii.hk/en/cases/hkcfi/2020/2411

[6] 林勵. (2018, January 9). 未做手術不能改身分證性別 3女轉男人士申覆核 律師指強制做手術違人權法. Retrieved March 29, 2021, from https://www.hkcnews.com/article/9369/跨性別人士-tse_henry_edward-司法覆核-9369/未做手術不能改身分證性別-3女轉男人士申覆核-律師指強制做手術違人權法
 

[7] Q, Tse Henry Edward, R v Commissioner of Registration [2019] HKCFI 295, HKLII, https://www.hklii.hk/en/cases/hkcfi/2019/295

[8] Examples proposed by the respondent are single-sex schools, emergency response, sex-specific residential services.

[9] AP v France, Application Nos ‍79885/12, 52471/13 and 52596/13, 6 ‍April 2017

[10] See para 59, Q, Tse Henry Edward, R v Commissioner of Registration [2019] HKCFI 295, HKLII, https://www.hklii.hk/en/cases/hkcfi/2019/295

[11] See para 26-27, Q, Tse Henry Edward, R v Commissioner of Registration [2019] HKCFI 295, HKLII, https://www.hklii.hk/en/cases/hkcfi/2019/295

[12] See section 12, Cap. 480

[13] See para 103, Q, Tse Henry Edward, R v Commissioner of Registration [2019] HKCFI 295, HKLII, https://www.hklii.hk/en/cases/hkcfi/2019/295

[14] See para 98-100, Q, Tse Henry Edward, R v Commissioner of Registration [2019] HKCFI 295, HKLII, https://www.hklii.hk/en/cases/hkcfi/2019/295