The Transgender Quest to End Discrimination

Ashley Sit

Author Ashley Sit is a law student at HKU enrolled in the SocSc (Govt & Laws) & LLB programme. 

In September, Miss Hui, a woman who had undergone a sex reassignment surgeries, was asked to try a sports garment at home instead of the fitting room of a chain store. Seeing that other female customers were allowed to enter the fitting room, Miss Hui questioned why she was not allowed to enter while showing her identity card with gender stated as “F”. The manager then explained that the store has to take care of the perceptions of other female customers and would not accept “people other than female” to enter. Miss Hui lodged a complaint to the Equal Opportunity Commission (EOC) and received an official apology from the chain store afterwards. 
 
Despite the incident being settled, it reminds us of the hostile environment that the transgender community faces, and how the present legislation can be more inclusive.  
 
Transgender in Hong Kong 
 
The experience encountered by Miss Hui sparks the question of whether there is sufficient understanding towards the transgender community in Hong Kong. 
 
Gender and sex sound similar. Yet, there are intrinsic differences between the two. Gender refers to our psychological self and social role, which is how we identify ourselves. Sex, on the other hand, describes our biological body, which separates male and female based on the differences in sexual organs [1]. For a lot of people, they identify with the gender commonly assigned to their sex. However, to transgender people, their identified gender is different from society norms. For instance, a person born in the male sex may consider his gender as a female.  Some individuals may even identify with genders beyond male and female. However, not all transgender people undergo treatment or surgeries, as some may be reluctant to alter their bodies through hormonal treatment or surgery to align with their gender identities due to numerous factors such as family pressure, economic income etc [2].  
 
According to estimates, there are 8,250 male-to-female transgender persons in Hong Kong [3]. The government stated that a transgender person can only change the sex entry on their identity card if they underwent full sex reassignment surgery,  which includes both surgeries to remove existing genitals and to reconstruct new genitals. This policy was challenged via judicial review in Q , R and Henry Edward Tse v Commissioner of Registration. The applicants were three female-to-male transsexuals who had undergone mastectomy (removal of breasts) and hormonal treatment which gives them facial hair, muscle tone and deep voices, except for the removal of genitals as such sexual reassignment surgery is regarded as risky and intrusive. They argued that the requirement of medical proof on the removal of the uterus and ovaries and the construction of some form of a penis in order to amend the sex entry on their Hong Kong Permanent Identity Card was a serious infringement on physical integrity. Yet, the court sided with the government, stating that despite the fact that the three litigants have undergone certain extent of transexual surgery except removing the genitals, anything falling short of full surgery would only be a type of “self-definition”, leading to arbitrariness and uncertainty [5]. 
 
Besides facing difficulty in affirming their identified gender, trans people are often stigmatised and challenged in their daily lives. For instance, they may risk getting fired and have difficulty in securing employment due to the mismatch in their own identified gender and their sex on the identity cards. They may even suffer difficulty in applying for travel visas. In 2016, there are also reports about male-female transgender prisoners being regarded as mentally ill and detained in male wards in a maximum-security psychiatric centre. These transgender inmates had allegedly had their hair forcibly shaved off and hormone supplies denied and experienced verbal and sexual abuse [4]. 
 
Labels and Stigma in the Law 

There are currently four anti-discrimination ordinances in Hong Kong. Yet, a discrimination ordinance against discrimination directed at LGBTI people is yet to be legislated. Like in Miss Hui’s case, she could only file a complaint to the EOC. Yet, the EOC currently considers complaints of discrimination by trans people under the Disability Discrimination Ordinance. Despite the fact that the World Health Organization announced that being transgender would no longer be classified as a mental illness in 2018, till this day, the Hong Kong government and the EOC still considers transsexualism as a mental disorder.  
 
Putting the label “disability” on trans-people not only fails to give an accurate definition of what trans-people are, but it also instills misperception to the general public. People may regard transgenders as those who have inborn disabilities and defects, increasing the city’s discrimination and misunderstanding towards the trans-community.  
 
Take one step further

Glimpse of hope was brought forward by the judgement of W v Registrar of Marriages, the Court of Final Appeal decided that transgender persons who have undergone full sexual reassignment surgery shall enjoy the right to marry under the Marriage Ordinance. However, there is still an uphill battle to fight.  
 
The court in Q , R and Henry Edward Tse v Commissioner of Registration unequivocally stated that only until the society as a whole is willing to accept people changing their sex in identification document with their own preference, can we proceed to gender recognition without undergoing full surgery. However, is our society really not ready to be more open to trans people? Or is it the government's reluctance that drags the progress of creating a more inclusive society?  
 
A survey conducted by Chinese University’s Sexualities Research Programme in 2019 randomly interviewed 1,058 people on their preferences towards strengthening legal protection towards the LGBTQ+ community. Only 12 per cent objected to laws preventing discrimination against LGBT people. A total of 60 per cent support a higher degree of protection [6]. The director of the research even rebutted the government’s claim of the society not being ready for change using the interview results (Chan, 2020). Furthermore, there is an increased number of people concerned about the safety issues arising from sexual reassignment surgery, which may lead to sterilisation.  
 
It is high time for the government to face reality and put forward trans-friendly laws. In fact, jurisdictions such as the U.K. and New Zealand have already provided gender recognition without requiring trans people to undergo surgical operations.  In recent years, the government's Inter-departmental Working Group has consulted on the possibility of gender recognition without having undergone the sexual reassignment surgery. However, the Working Group has not been producing any reports for 4 years. If a gender recognition ordinance can be made accordingly, it can surely facilitate public understanding and reduce stigma towards the trans-community. Therefore, the government should put theory into practice so as to create a genuinely equal and inclusive society. 
 
 
References 
[1] Questions and Answers on the Rights of Transsexual People in Hong Kong. (2014). Equal Opportunities Commission. pp.1 Available at https://www.eoc.org.hk/eoc/upload/20141120161455164559.pdf 
[2] Making a world of difference Gender recognition legislation in Hong Kong. (2018). Legislative Council.  pp. 5Available at https://www.legco.gov.hk/yr17-18/english/panels/ajls/papers/ajls20171120cb4-209-24-e.pdf 
[3] Disease review of transgender persons in Hong Kong. Advisory Council on AIDS. (2015  Available at http://www.aca.gov.hk/tc_chi/strategies/pdf/TRAN%20Chi.pdf 
[4] Lau, J. (2016). Hong Kong’s transgender community still faces an uphill battle against discrimination. South China Morning Post. Available at https://www.scmp.com/news/hong-kong/health-environment/article/2043423/hong-kongs-transgender-community-still-faces 
[5] Chan, H. (2019). Transgender people must have full sex change surgery to switch gender on gov’t ID, court affirms. Hong Kong Free Press 
[6] Lau, C. (2020). Support for laws against LGBT discrimination in Hong Kong rising, Chinese University survey finds. South China Morning Post. Available at https://www.scmp.com/news/hong-kong/society/article/3045074/opposition-laws-against-lgbt-discrimination-hong-kong 
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