Hong Kong Court Refuses to Recognize Transgender Men on National Identity Cards

In Hong Kong, transgender people are required to undergo a sex reassignment surgery before they can change the gender marker on their ID.

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04 February 2019, 8:00am

Henry Tse (second from right), holds a banner that says "Forced sterilization is cruel and inhumane" with three transgender activists on Friday. Photo by author

In between stolen moments at his creative-field job, Julian Sun, a 25-year old Singaporean transgender activist, skims new comments on an online chatroom, often replying to members with messages of support or validation. The community he is part of is an online transgender and Hong Kong-based support group. Comments in the chatroom range from anxiety over using gender-assigned public toilets, to having different names on credit cards and government IDs, to issues of family acceptance.

Underlying some of the fears in the Hong Kong transgender community is the inability to change their gender marker on their government-issued, Hong Kong ID card (HKID) to the gender they currently identify with unless they undergo a sex reassignment surgery (SRS).

Although not legislation proper, this policy resulted from a 2013 landmark case in Hong Kong transgender rights of known as the W case, where a transgender woman sued the government for the legal right to marry her boyfriend. The Hong Kong Court of Final Appeal (CFA) had ruled that transgender persons who had successfully undergone SRS would be legally able to marry a partner of their current opposite sex.

Last Friday, the Hong Kong High Court handed down the verdict rejecting applications from three transgender men to change their HKID gender marker without having to undergo SRS. The plaintiffs had sought judicial review for the government’s refusal to recognize their self-identified gender. Rejection, they asserted, was an infringement upon their human rights, among others.

The verdict affirmed the government’s decision that only SRS could result in changing one’s gender. It also ruled that the government’s policy was non-discriminatory because both transgender women and men would be able to comply with the requirements. While the verdict for members of the transgender community and activists, it was not unexpected given that the W case had to be appealed to the CFA.

The W case was hailed as a victory for transgender rights. It resulted in the recommendation from the Inter-departmental Working Group on Gender Recognition that the government take legal steps to address problems facing transgender individuals by enacting similar overseas legislation, citing the United Kingdom’s Gender Recognition Action 2004 which allows transgender people the right to change their gender on all legal documents including credit cards, identification cards, and passports. So far, no such legislation has been implemented by the Hong Kong government.

“The W case… was only resolved in the CFA. The applicants fully appreciate that this case would also likely only be resolved in the CFA,” said the lawyers for the plaintiffs outside the court directly after the handing down of the verdict, flanked by Henry Tse, one of the three plaintiffs—the other two going by "Q" and "R." The plaintiffs’ lawyers joined Tse in affirming the decision to appeal Friday’s verdict.

After the ruling, Tse, alongside three other transgender activists and Hong Kong’s first and only transgender politician Joanne Leung, held a banner that read “Forced sterilization is cruel and inhumane," outside the court.

Amnesty International Hong Kong also took arms against the government's medical requirement as a precondition for gender recognition. “Forcing people to undertake medical treatment in order to obtain legal gender recognition violates their right to the highest attainable standard of health,” it says in a press release.

Yet the surgical requirement to achieve gender recognition is a hard line for the Hong Kong government. Last August, the same court ruled that transgender inmates did not have the right to carry out their prison sentences in their self-identified genders if they had not undergone SRS prior to entering prison.

In the Asia-Pacific region, Hong Kong is lagging behind in enacting fewer transgender protection laws. Pakistan, India, Bangladesh, Nepal, and the Philippines, have all passed some form of transgender protection laws, though it doesn't always mean that they are enforced. When India passed the “Prohibition of Rights” bill last December that would create a two-tier system of rights for transgender individuals to gain legal recognition, it set off huge protests.

Brenda Alegre, the first transgender professor in the faculty of Gender Studies at Hong Kong University who is from the Philippines, expressed the belief that Hong Kong continues to lag behind legislatively—even when 56 percent of Hongkongers surveyed expressed support for greater rights—because of its culturally closed-minded views on gender enforced through patriarchy and heteronormativity.

“Hong Kong has both that imperial and colonial history and in both cases, patriarchy and heteronormativity is greatly ingrained in the system of Hong Kong people,” Alegre told VICE.

Transgender activists and organizations, looking towards the next steps to achieve gender recognition, view the upcoming years as a way to better evaluate how to fight the Hong Kong government’s current legal assertions that require surgery.

Undaunted by legal barriers to recognition, Julian Sun remains positive that archaic governmental policies towards transgender equality will eventually be forced to reckon growing social studies that show increasing support for new legislative changes.

“It will eventually get passed, it’s just when-is-this-gonna-happen kind of thing.”

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