The Hong Kong Final Court of Appeal Monday ruled that policies requiring transgender men to undergo full sex re-assignment surgery (SRS) to alter gender markers on their Hong Kong ID cards are unconstitutional and quashed the decisions of previous courts.
After hearing the submissions from both sides in January, the court held that the Commissioner of Registration failed to adequately demonstrate that the challenged guidelines were the “only workable, objective and verifiable criterion for altering the gender marker.”
The commissioner also failed to justify interference with the appellants’ rights under Bill of Rights Article 14. Article 14 protects a person from being subjected to “arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” The court held that “privacy is a concept inherently linked to a person’s dignity,” and protections under Article 14 also include the right to gender identity and the right to physical integrity. Restrictions around gender markers thus involve humiliation, distress and loss of dignity in routine activities such as the inspection of Hong Kong ID cards. The court noted that the incongruence between a transgender person’s ID card and their outward appearance often amounts to confusion and embarrassment.
While the commissioner argued that “a full SRS is the only workable, objective and verifiable criterion” for gender marker change, the court held that individuals should not be prescribed medical treatment which carries potential physical pain and future complications merely to promote administrative convenience or clarity. The court argued:
The Policy’s consequence is to place 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. Clearly this does not reflect a reasonable balance. The Policy imposes an unacceptably harsh burden on the individuals concerned.
However, the court commented that it is not its place to rewrite the current policy.
In an interview with HK01, appellant Tse Henry Edward said that winning the case means he can live a “normal life.” Zephyrus Tsang, the Vice Chairperson of transgender advocacy group Quarks, described the outcome as a “victory” for both the transgender community and the wider LGBTQIA+ community. Tsang expressed his hope that the government will introduce gender recognition reform as soon as possible.