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Transgender activist Henry Edward Tse speaks to reporters outside of Court of Final Appeal in Hong Kong, February 6, 2023.
© 2023 Anthony Kwan/AP Photo
The Court of Final Appeal in Hong Kong ruled this week that the government’s requirement that transgender men undergo “full sex reassignment surgery” to change their legal gender is unconstitutional under the Bill of Rights. The ruling applies to two transgender men seeking to change their legal gender markers on their identification cards without undergoing a full surgical transition.
The court, referencing a 2017 Hong Kong government working group paper as well as the European Court of Human Rights, concluded that the surgical requirement violated their right to privacy and failed to provide a reasonable balance between “societal benefits and the appellants’ rights.”
The court rejected arguments put forward by the Commissioner of Registration, the defendant in this case, that full surgery was the only “objective and verifiable criteria” by providing alternative examples from around the world; the court described concerns around gender-segregated spaces in emergency situations as “fanciful”; and said that transgender men getting pregnant was an unusual scenario that did not justify withholding legal gender recognition from the applicants.
The judgment notes that Hong Kong’s current policy mandates “undergoing the most invasive surgical intervention in the range of treatments,” which is a requirement “increasingly rejected in many jurisdictions.” The court further notes that “some transgender persons feel pressured to undergo such surgery just to get a replacement ID card in order to avoid the frequent experience of discrimination, humiliation, violation of their dignity and invasion of their privacy.”
The judges wrote that “it is objectionable in principle to adopt as the criterion for amending a gender marker, a requirement of undergoing a highly invasive surgical intervention which may be medically unnecessary.”
And while the judgment is narrowly tailored to the appellants in the case, the court also suggests Hong Kong authorities should more broadly revise the policy currently governing legal recognition for trans people. “The societal benefits of the Policy are in many respects illusory and are at best relatively slim,” the justices wrote, noting that it puts “persons like the appellants in the dilemma of having to choose whether to suffer regular violations of their privacy rights or to undergo highly invasive and medically unnecessary surgery, infringing their right to bodily integrity.”
The decision, while limited in scope, sends a strong message that the Commissioner of Registration should reform Hong Kong’s outdated criteria for legally recognizing trans people. The judgment also stands as an important reference for separating mandatory medical requirements from the fundamental right to a legal gender identity.
