W vs the Registrar and the exclusion of pre-operation trans women

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​https://www.reuters.com/article/us-hungary-lgbt-wedding-idUSKBN27M235

W vs the Registrar is widely regarded as a step forward for the transgender rights movement, as it deconstructed stale conceptions of gender to affirm the right of some post-op transwomen to marry partners of the “opposite” sex. Although every inch of territory won for the LGBTQ+ movement is valuable, an account of the gaps left by piecemeal solutions is equally as important.
We are now almost a decade removed from the CFA ruling and despite the optimistic outlook of our justices, the legislature has failed to table any further legislation regarding gender affirmation. Thus, the court’s decisions in W vs the Registrar have remained a touchstone of law for transgender rights.
I contend that this is unsatisfactory for two main reasons: firstly, the court in W vs the Registrar failed to provide protection for pre-operation or pre-hormone trans people despite their mandate to protect minority rights. Secondly, the court was unfortunately swayed by hidden assumptions on the philosophy of gender, leading to contradictory statements within their rulings. I argue that if these assumptions had been subjected to the bright light of judicial scrutiny, the rights of pre-operation trans people would have manifestly been affected for the better.
The first argument is a moral one. The court maintains two precepts throughout: 1) that the court will keenly safeguard the human rights of minorities and 2) That the court will not disregard the rights of minorities simply because the majority rejects their rights, nor would an absence of majority consensus constitute a basis for denying such rights. It is on these principles that they extended the definition of “woman” in the marriage ordinance to include post-operation trans women with certification from the relevant medical authority. On what basis, then, is it not extended towards pre-operation trans women? Following the court’s logic, which views post-operation trans women as further on the path of “treatment” for gender dysphoria (GID) than trans women who have not elected for surgery, the pre-operation women must by the court’s definition, be at higher risk for the complications of untreated gender dysphoria. Thus, the court’s willingness to extend the definition of “woman” is not based solely on considerations of harm reduction, as that would necessarily view the “treatment” of GID in pre-operation women as a priority, rather than place additional legal barriers in their way. Some other assumptions about the definition of “woman” must be operating beneath to prevent this extension.
 The legal explanation for conservative expansion of the concept of womanhood is that the word “woman” cannot be given a meaning it cannot bear. In other words, the court is cautious about interpreting the word “woman” in a way that strays too far from the original intent of the legislature, as it is not the court’s job to make laws, but rather interpret them. Hence, a post-operation woman like W was held to fall within a “generous” interpretation of the statute, because the “biological, psychological and social” circumstances were such that the reality was she was “living as a woman.” Yet, because a pre-op woman in the court’s eyes is on the penumbra of the concept of woman, it is better left to the legislature to decide where she stands. The court had contented itself with laying down sufficiency conditions – post-operation and medical recognition by certificate. Necessary conditions were the ambit of the legislature. 
Accordingly then, one must ask: to the court, why can’t the word “woman” bear the inclusion of pre-operation trans women? The answer seems simple at first glance: biological sex markers. Gender affirmation surgery results in the irreversible removal of sex organs and/or gonads, and often also affects secondary characteristics of sex. But earlier, the court stated that “confinement to physiological factors is incomplete” and that utilizing a purely biological definition of woman would be unconstitutional, given advancements in social and medical views. So the position of the court must be that: even given a holistic view of gender, biological markers take priority over social and psychological ones. Here is where the assumption hides – biology is considered to be a natural, ontologically higher truth than the social and psychological factors.
What undergrids this concept of “pre/post” operation, is the belief that the sex you are assigned at birth is a “historical fact” (para 17) and a “biologically correct classification” regardless of any social and or psychological factors. In other words, biological truths are pre-discursive; they are the building blocks with which we create discursive categories such as gender. As such, the court’s exclusionary view can be made coherent: pre-op women are “women” as far as their gender is concerned, but because their “sex” fails to accord with their gender, they cannot be a woman in full. Yet, does this view not beg the question to assume that there are some essential traits of womanhood that can biologically be defined? What would such an essential list of biological traits even look like? Would a woman who loses her breasts in a mastectomy thus be rendered male? Would a woman in menopause suddenly stop becoming women? If tomorrow, scientists came out and definitively proved that scientifically, only people possessing xyz were female, would trans women suddenly just stop existing? 
As shown above, if we hold that the gender of a person is changed “subsequently” we are privileging the initial label that is imposed upon us for no justified reason beyond dogma. Therefore, pre-operation trans women should not be considered as separate from post-operation trans women (or cis women) on the basis of their biological factors. 
The only remaining justification found is the perception of post-op transgender journeys as extensive, irreversible, and painful (para 14). The court stresses how long and painful the transition was, writing: “[transgender] persons are willing to endure such a long and painful ordeal to acquire a body which confirms as far a possible with their self-perception and to struggle for social recognition in their acquired gender is clear evidence of the fundamental importance of the psychological factor”.
Here, the biological transition is considered to be evidence of the psychological factor. Read in tandem with the court’s reluctance to consider pre-op women as women, it stands to reason that the psychological factor is by itself, not convincing to the court. In my reading, the court is applying a pseudo-medical fetishization of the pain of transition whereby the trans condition is considered a medical condition, for which amelioration must be made to save the trans person from their own self-hatred. The court relies on the affidavit of Professor Sam Winter for the “aetiology” of the transgender condition which describes the experience as one of imprisonment and incongruence, “inner turmoil” and at times, self-destructive behavior. What the court  appears to fail to consider is that gender dysphoria is not purely self-reflexive, but is also a product of social conditions. We build laws, and institutions and concepts that deny transgender individuals their very existence unless they provide a detailed report, complete with medical records, of their self-hatred– “dysphoria.” Is this the narrative we want to build for trans youth, who are already at higher risk for teen suicide? Is being trans inherently a painful process, or are we making it painful, teaching trans youth that to be accepted as transgender, that to have access to the legal and social recognition that can provide them the relief they seek, they must prove the depths of their conviction? Should the law presume transgender persons liars or misguided patients until their sincerity is proven to the satisfaction of the medical and legal community? 
I believe that the court erred in focusing on biological transition– the underlying assumption that the biological sex assigned at birth is a scientific fact led to the erroneous understanding of the trans experience as a medical condition. Treating the case as one of medical intervention, the court viewed the applicant as a patient, and thus attempted to do justice for this patient. However, in viewing the applicant as a patient, the court also engaged in a practice of classification, identifying the conditions required to fit the diagnosis. Recent decisions such as Q and Tse Henry Edward have shown that the conditions will continue to include gender affirmation surgery, betraying the court’s unwillingness to separate gender from its biological essentialist roots. But on what authority can we demand that proof of a transgender person’s gender identity requires an examination of their reproductive function? Shall we have mandatory health screenings of all newlyweds so that those who are infertile are duly refused their marriage certificate out of failure to play their gendered, reproductive role? I hope that the court, when given further opportunity to consider the philosophical underpinnings of gender identity, will give full weight to the lived experience of all trans women, rather than presuming the exclusion of pre-operation trans women.