The Future of a Gender Identity Discrimination Ordinance in Hong Kong?

Claudia Wong & John Tseung
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Authors Claudia Wong and John Tseung are law students at HKU enrolled in the BBA(Law) & LLB and BA(Law) & LLB programmes respectively.

Though local LGBT+ initiatives have gained considerable traction in recent years, the status quo is still a far cry from equality. This is illustrated by a recent event involving a transgender woman who, despite having undergone sex reassignment surgery and changed her legal sex, was denied entry to the fitting room of a lingerie store for no reason.[1] The store manager later maintained that the fitting facilities were reserved for female customers only and provided no further explanation when the transgender woman provided her identification document for reference. This incident reveals that trans rights in particular is an area where much work is needed to be done. 

The concept of "gender"?
Gender, as defined by the World Health Organization, is a social construct and can evolve over time with changes in societal values. Yet, as illustrated by the lingerie store incident, it appears that common perceptions have yet to concur with gender identities other than “male” and “female”. In this sense, a clear discrepancy arises between legal recognition and social understanding, which poses a major stumbling block towards the development of LGBT+ equality. 
 
In Hong Kong, a change in legal sex is recognized by past cases and relevant authorities. In the case of W v Registrar of Marriages,[2] the Court of Final Appeal ruled that the law should include a medically-certified male-to-female transgender person within the legal definition of “woman” and “female” in the context of marriage legislation. Additionally, transgender persons who have completed sex reassignment surgery can legally change their sex shown on their identity card after obtaining necessary certification from the Hospital Authority.  

Current mechanism against gender identity discrimination?
Even though a transgender person may have changed their sex entry on the identity card and identified themselves with their redefined sex, he and she might fail to be recognised by society as equals of cisgender persons. This is signified in the lingerie shop incident. Hence, it leads us to a question: since there is such disparity, should there be more legal protection for transgender people or even further, to the LGBT+ community?  
 
Before answering the question, it is necessary to consider the current mechanisms available to transgender people when they face discrimination.  
 
Hong Kong citizens enjoy constitutional protection to be equal before the law under Article 25 of the Basic Law. The Hong Kong Bill of Rights Ordinance has also stipulated that the law shall prohibit any discrimination and guarantee effective protection against discrimination on any ground such as sex and any other status.[3] In spite of the constitutional guarantees, the lack of legislation governing discrimination against gender identity has created a gap in protection for transgender groups. Currently, the main mechanism for handling discrimination matters lies in the Disability Discrimination Ordinance (“DDO”) where the Equal Opportunities Commission (“EOC”) would only deal with complaints of discrimination on the ground of gender dysphoria.[4] Transgender people may also lodge complaints under the Sex Discrimination Ordinance (“SDO”), however difficulties may be experienced since they do not fall under the traditional ordinary meaning of “woman” and “man”. 
 
Should there be a Gender Identity Discrimination Ordinance in Hong Kong?
With the lack of a specific legal protection, there are different suggestions in widening the protection to the transgender community such as the implementation of the Gender Identity Discrimination Ordinance.  
 
Concern groups have expressed their support to such legislation. Despite the existence of DDO and SDO, according to the EOC report, 88% of the respondents still faced discrimination with regards to their gender identity while 44% responded that they have “often/ very often” experienced such discrimination.[5] This shows that the current mechanism is insufficient and inappropriate where there is a grey area in application of SDO and individuals may not wish to be labelled as “mentally-disordered” person under DDO especially with the increasing social acceptance and understanding. Compared to other suggestions such as reading the SDO as inclusive of gender identity, the Ordinance can provide a more specific, certain and comprehensive protection by explicitly stating that what acts may amount to discrimination and what exceptions are be allowed. Also, as evidenced by the lingerie shop incident, the general public is unaware of the rights of transgender people. By putting gender identity as a distinct anti-discrimination ground, it would help to raise society’s awareness and act as a driving force to change social attitudes.  
 
Though LGBT+ allies would welcome this legal change, there are resistive forces as to the implementation of such Ordinance. One concern over the establishment of an anti-discrimination institution is the alleged possibility of reverse-discrimination towards the religious community as not all religions and cultures acknowledge transgenderism. Though the legal rights of transgendered persons are to be protected, right to practise religion should also be upheld. Balancing the interests of transgender persons and religious groups may prove to be a major challenge towards the goal of promoting inclusive society. 
 
Indeed, the EOC had performed research and suggested the implementation of a legislation against discrimination on the grounds of sexual orientation, gender identity and intersex status.[6] Yet, the proposal was rejected in the Legislative Council with a preference to prevent discrimination from educational and policy perspectives rather than through legislation. The matter was never put back to the table since then. 
 
Future prospects?
Gender Identity Discrimination Ordinance is not a new concept. Around the world we can see examples such as the United Kingdom and Australia where each have adopted similar acts against discrimination based on gender identity.[7] 
 
After all, by definition, the understanding of gender can readily change. Article 7 of the Universal Declaration of Human Rights affirmed that all are equal before the law and are entitled indiscriminately to equal protection of the law. Transgender persons should by no means be excluded from such protection. Although one may agree that efforts made to change social perceptions and an implementation of gender recognition scheme seems to prevail at the present stage, it is pertinent for the law to widen its scope beyond the traditional understanding of male and female to promote social inclusivity by ensuring no one would be subject to discrimination due to their gender identities. 
 

[1]曾鳳婷. (2020, September 25). 跨性別人士服裝店試身遭拒絕     團體促平機會調查事件: 香港01. Retrieved from: https://www.hk01.com/18區新聞/528494/跨性別人士服裝店試身遭拒絕-團體促平機會調查事件 
[2] [2013] HKCFA 39 
[3] The UN Committee has interpreted the term “other status” in Article 2(2) of International Covenant on Economic, Social and Cultural Rights (as mirrored in Article 2 of the International Covenant on Civil and Political Rights and Article 1 of the Hong Kong Bill of Rights) as inclusive of gender identity and sexual orientation. See UN Committee on Economic, Social and Cultural Rights (CESCR). (2009). General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights).  Retrieved from:http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=4slQ6QSmlBEDzFEovLCuW1a0Szab0oXTdImnsJZZVQdqeXgncKnylFC%2blzJjLZGhsosnD23NsgR1Q1NNNgs2QltnHpLzG%2fBmxPjJUVNxAedgozixcbEW9WMvnSFEiU%2fV  
[4] York Y.N. Chow. (2013, July). Hong Kong must do right by its transgender minority. Retrieved from: https://www.eoc.org.hk/EOC/Upload/UserFiles/File/thingswedo/eng/twdpwm0033.htm  
[5] Equal Opportunities Commission and Gender Research Centre of the Hong Kong Institute of Asia-Pacific Studies of The Chinese University of Hong Kong. (2016). Report on Study on Legislation against discrimination on the grounds of sexual orientation, gender identity and intersex status. Retrieved from: http://www.eoc.org.hk/eoc/upload/ResearchReport/20161251750293418312.pdf 
[6] Equal Opportunities Commission. (2016, February). Study on Legislation against Discrimination on the Grounds of Sexual Orientation, Gender Identity and Intersex Status - Submission from the Equal Opportunities Commission. Retrieved from: https://www.legco.gov.hk/yr15-16/english/panels/ca/papers/ca20160215cb2-822-5-e.pdf  
[7] See Equality Act 2010 in the United Kingdom and The Sex Discrimination Act in Australia