The winning of a long legal battle by two transgender men last year was hailed as a landmark. Henry Edward Tse and another litigant known as “Q” were entitled to expect the swift granting of their applications for a gender change on their identity cards in accordance with the judgment in February 2023.
A year later, they were still waiting. Tse, who said the delay caused him constant anxiety and emotional distress, launched a fresh legal action in March, demanding his request be approved.
This might have focused minds. Two weeks later, the government announced new arrangements for applications in light of the judgment. The revised policy marks a step forward, but still leaves a lot to be desired.
The previous scheme required transgender people to have full “sex reassignment surgery”, before being allowed to change the marker on their ID cards to their acquired gender. This can be risky and painful. Most transgender people do not need it or want it.
The Court of Final Appeal declared the requirement unlawful, constituting a breach of privacy. A new, more progressive policy was needed. But officials have opted to make limited changes.
Applicants will no longer need the full surgical procedure. But they will still be required to undergo invasive and possibly unnecessary surgery “for the purpose of modifying sexual characteristics”. They must also have received hormone treatment for at least two years and, incredibly, may be required to submit blood tests for “random checking of his or her hormonal profile”. Proof they suffer from gender dysphoria is needed, too.
These requirements are at the more restrictive end of the spectrum. British arrangements do not require surgery or hormone treatment. The US procedures are even more relaxed.
The new policy is still likely to deter many transgender people from applying and might lead to more legal challenges. People suffering from gender dysphoria feel trapped in the wrong body. The amount of medical intervention needed, if any, to allow them to live their lives comfortably and with dignity varies from person to person. Surgery is not always needed.
The case did not even concern a change of gender for legal purposes, only the marker on an ID card. Both litigants have the appearance of and live their lives as men. Having “female” as the gender on their identity card has been a source of discrimination, humiliation, and invasion of their privacy, the court heard.
The government’s response is, sadly, typical of the approach it has long adopted to LGBTQ rights. It tends to drag its feet and makes minimal changes when policies are ruled unlawful by the courts.
Hong Kong lifts full sex reassignment criteria for changing gender on ID cards
It is 11 years since the Court of Final Appeal delivered another landmark ruling, allowing a transgender woman to marry her boyfriend.
In that judgment, the court said legislation in a number of areas would be “particularly valuable” to clarify the position of transgender people. This includes parenting, pensions, benefits, trusts, sport and gender-specific offences.
An interdepartmental working group was established in 2014. It began with a public consultation in 2017 on a fully fledged gender recognition scheme. But since then little, if anything, appears to have been done. We do not even know the results of the consultation.
There is a need for a sea change in the government’s approach to the rights of the LGBTQ community. They should not be treated as if they are an inferior class of people.
The transgender legislation envisaged by the top court in 2013 must be discussed and enacted. The issues are complex, but have been tackled with care and sensitivity in many other parts of the world.
Broader efforts are also required. In another case in September, the Court of Final Appeal ordered the government to develop a scheme for the legal recognition of same-sex partnerships. A progress report would be welcome.
As Hong Kong seeks to present itself to the world as an open and inclusive city that respects rights, these long outstanding issues cannot be ignored.
