Public Consultation on Gender Recognition
Background: Transgender and Transsexual Persons in Hong Kong
In Hong Kong, if a transgender person wishes to legally change their gender from male to female, or from female to male, they are required to undergo genital sex reassignment surgery (SRS), which normally results in their sterilization, for a new identity card and passport with their affirmed gender to be issued.
A transgender person who wishes to undergo SRS needs to first go through preliminary assessment and medical treatments provided by the Hospital Authority to assess whether the person is diagnosed with Gender Identity Disorder and to determine whether SRS is required or suitable.
International Human Rights Standards
The UN has actually raised human rights concerns regarding requirements for genital surgery and sterilization. Its report in February 2013 highlighted that such requirement, which is common in many countries, is a form of unlawful inhuman or degrading treatment. Member states are called to outlaw “…forced or coerced sterilization in all circumstances.”
In its concluding observations on the fifth periodic report of China with respect to the Hong Kong Special Administrative Region, the United Nations Committee against Torture stated that the Hong Kong Government should “take the necessary legislative, administrative and other measures to guarantee respect for the autonomy and physical and psychological integrity of transgender and intersex persons, including by removing abusive preconditions for the legal recognition of the gender identity of transgender persons, such as sterilization”.
The W case: A Turning Point
In W v Registrar of Marriages, the Court of Final Appeal (CFA) ruled that a transsexual person who had undergone full SRS should be entitled to marry a person of the sex opposite to his or her reassigned sex. It also commented on the problems facing transsexual persons in other areas of law, as well as the treatment of persons who have not undertaken any SRS or have not fully completed SRS.
Following the rulings of the CFA, the Inter-departmental Working Group on Gender Recognition (IWG) was established in January 2014 to consider whether it is necessary to introduce legislation and incidental administrative measures to deal with issues concerning gender recognition in Hong Kong. A consultation paper on Part 1: Gender Recognition was released on 23 June 2017 (https://www.iwggr.gov.hk/eng/publications.html) which aimed to study the need to establish a gender recognition scheme and the criteria for determining whether a person is eligible for legal gender recognition and the relevant procedure. According to IWG, the second part of the consultation (yet to be released) will examine the issues arising in consequence of legal gender recognition.