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Questions remain after gender ruling

By Colin Cohen and Jasmine Kwong

Hong Kong, 21 February 2023: In a landmark ruling, the Court of Final Appeal has found the government breached the rights of two transgender men by refusing to let them amend their Hong Kong identity cards without full reassignment surgery.

However, while the judgment marks another significant victory for members of the LGBTQ+ community in their long-running campaign for equality, there remains much uncertainty about how it will be applied in common social situations and what measures, if any, the authorities will implement as a result.

The CFA ruling was the culmination of a legal battle which began in 2019 when the two litigants, Henry Edward Tse and another trans man identified as “Q”, filed a claim against the Commissioner of Registration – a role filled by the Director of Immigration – after he refused to let them change their HKID card gender status to male.

The crux of the matter was the Commissioner’s policy governing gender status on HKID cards, which show the holder as being either male or female. Such a gender marker merely operates as an element for verifying the holder’s identity, it does not signify recognition of the person’s sex as a matter of law. However, for transgender people seeking to have the marker amended to reflect their acquired gender – that is, the one with which they identify, as opposed to that assigned at birth – the Commissioner has required them to undergo full reassignment surgery.

Both appellants were female-to-male transgender persons who had identified as male since their youth. They had each undergone medical treatments, acquiring masculine bodily features and living as men, thus assisting their social integration. On this basis, they applied to amend the gender markers on their HKID cards, but were turned down by the Commissioner.

The pair brought judicial review proceedings to challenge the decision, which they contended violated their constitutional right to privacy under Article 14 of the Hong Kong Bill of Rights. The judicial reviews were dismissed by both the Court of First Instance and the Court of Appeal, although the latter granted them leave to appeal to the CFA.

The CFA judges held that the government’s policy of insisting on full reassignment surgery was disproportionate in its encroachment on the appellants’ Article 14 rights:

  • The Court did not accept that full reassignment surgery was the only workable criterion for amending a HKID card. The availability of a medical exemption under the existing policy as well as examples of different policies adopted in other jurisdictions showed that other criteria were plainly workable.
  • The Commissioner’s contention that full reassignment surgery was necessary to avoid so-called administrative problems which could arise, for example, in the use of female changing rooms, was also rejected. The judges noted “possible external incongruence” between what was on the HKID card and the person’s outward appearance.
  • The judges also dismissed the Commissioner’s stance that a trans man without full surgery could still bear a child. They said a person’s commitment to their adopted gender was “plain and obvious”.

Overall, the CFA decided the government’s policy imposed an unacceptably harsh burden on the individuals concerned and did not reflect a reasonable balance with the societal benefits it was intended to produce. In allowing the appeals, the CFA granted a declaration that the Commissioner’s refusal of the appellants’ applications and the underlying policy had violated their Article 14 rights and were unconstitutional.

While the ruling is significant and brings Hong Kong into line with international standards such as those in the UK, US and Australia, it only goes so far. It does not change the legal status of a person’s gender at birth. It states: “The present case is not one where the issue of a person’s sexual status for all legal purposes is involved. The challenge [to the Commissioner’s policy] concerns merely the correction of a gender marker on an identification document which does not affect legal status.”

It also leaves unanswered questions. Chiefly, how will the Immigration Department respond and what threshold will it adopt for changing gender on HKID cards in the future? As well, it remains to be seen whether the conflicts experienced by transgender citizens in their day-to-day lives will be reduced in Hong Kong’s traditionally conservative society.

Finally, applying the judgment to everyday social situations would appear to be a substantial and difficult process. We can expect considerable debate surrounding usage of public toilets, hospitals and prisons, for example, while participation in sports events is likely to be another contentious topic.

Senior Partner in BC&C since 2004, Colin Cohen has vast experience in the highest levels of Hong Kong’s legal system, leading teams in complex corporate crime cases, high-conflict civil litigation, dispute resolution, landmark judicial reviews and Court of Final Appeal hearings. He can be contacted at colin@boasecohencollins.com.

Jasmine Kwong is a Trainee Solicitor, having joined BC&C in the summer of 2021. She completed her law degree and Postgraduate Certificate in Laws at City University of Hong Kong while also attending summer courses at the University of Oxford and Monash University. She can be contacted at jasmine@boasecohencollins.com.

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