Landmark win for transgender pair

In a landmark decision, the Court of Final Appeal yesterday ruled that the Immigration Department breached the rights of two transgender men by preventing them from amending their Hong Kong ID cards.

One of the appellants, Henry Edward Tse, welcomed the ruling, calling it delayed justice for the transgender community.

He urged authorities to change the gender-marker policy for HKID cards and enact a new law to facilitate gender recognition.

Tse said he had already made plans with friends to apply together to change their gender markers.

He said using an HKID card with an incorrect gender deprives him of the right to use many facilities and prevents him from leading a normal life.

But he added most of the problems will be solved after he changes his gender marker.

Asked what he wants to do the most with a new HKID card, Tse answered: "I want to get back to exercising. I haven't exercised for a long time to avoid any embarrassment arising from changing room arrangements."

He said the ruling marks a big step forward on transgender protection.

"Finally, something good is happening to us," Tse said outside court.

The five judges unanimously said the department's narrow requirement of allowing a transgender person to amend their gender marker on their HKID card only after completing sex reassignment is unconstitutional and against privacy rights.

Chief Justice Andrew Cheung Kui-nung, permanent judges Roberto Ribeiro, Joseph Fok and Johnson Lam Man-hon and nonpermanent judge Jonathan Sumption handed down the written judgment.

The appeal was jointly made by transgender males "Q" and Tse, who were born female but suffered gender dysphoria and eventually underwent part of a sex-reassignment surgery to remove their breasts.

The Immigration Department rejected their request to change the gender on their HKID cards to male.

The commissioner of registration said their applications were turned down because they had not received the full surgery, which involves a highly invasive procedure to remove the uterus and ovaries and construct an artificial penis.

The judges said they could not accept the commissioner's three justifications for the rejection.

First, the commissioner argued that a full surgery was the only workable, objective and verifiable criterion for individuals to amend the gender on their identity document.

But the judges said: "Decisions need not be made mechanistically, applying some one-size-fits-all criterion, but can be approached on a case-by-case basis."

They also cited guidelines from foreign jurisdictions, including the United Kingdom, that it is unnecessary to only accept full surgery.

"The appellants have been medically certified as having effectively transitioned to living lives in their acquired gender without the need for further surgery. They are not advocating self-certification," said the judgment.

Second, the commissioner said he would like to avoid causing administrative problems and incongruence between a transgender man's physical appearance and the HKID card gender marker.

But the judges called the argument overstated and unconvincing, adding that more confusion was caused if a transgender man's gender marker was not changed.

"If a transgender person whose external appearance is male were to produce an ID card stating he is female, this might cause the officer to ask numerous questions and perhaps to doubt whether he is the lawful holder of the document, leading to the embarrassment, humiliation, violation of dignity and invasion of privacy complained of in this appeal," the judges said.

The commissioner's third argument was that hormonal and psychiatric treatments before full surgery were not absolutely irreversible and a transgender man could still regain fertility and become pregnant after suspending hormonal treatment.

The judges dismissed the claim with exceedingly small risk as a justification.

The judges granted Q and Tse an order to quash the commissioner's refusal.

jane.cheung@singtaonewscorp.com