Hong Kong rules transgender people need surgery to change legal gender

People in Hong Kong take part in the LGBT parade with other lesbian, gay, bisexual and trans people in 2014

The High Court of Hong Kong has ruled against three trans people who wanted to change their legal gender without undergoing confirmation surgery.

The applicants, who are known as Henry Tse, Q and R, were informed of the decision on Friday (February 1). They have all been legally recognised as men by the British government but are unable to get their gender changed on Hong Kong ID cards.

Judge Thomas Au said that full gender confirmation surgery was the “only objectively ascertainable criterion” in deciding a person’s gender, the Hong Kong Free Press newspaper has reported.

Lawyers for the three men said they would appeal the ruling, telling Hong Kong newspaper the South China Morning Post that Judge Au’s requirement for the men to have genital surgery before changing their legal gender was “out of proportion.”

Participants display a placard during a Gay Pride parade in Hong Kong on November 10, 2012 with lesbian, gay, bisexual and transgender people

One of the applicants, Henry Tse (not pictured), said: “I am a bit disappointed, although I am not surprised” (PHILIPPE LOPEZ/AFP/Getty)

In response to the ruling, Tse said: “I am a bit disappointed, although I am not surprised.”

The three men, who have had their breasts removed and undergone hormone therapy, achieved their legal gender change in Britain by proving they had suffered from gender dysphoria, lived as their gender for two years and intend to continue doing so.

Hong Kong judge explains trans ruling

In contrast to British laws, Hong Kong still requires full confirmation surgery before a trans person can officially be recognised as their gender.

The judge said anything less than this would constitute “self-definition.”

In his 59-page judgment, Judge Au rejected the idea of switching to a system of self-identification, which trans activists all over the world continue to campaign for.

“Leaving it up to the individual cannot be a workable rule as it leads to uncertainty and arbitrariness, and in effect there would be no rule as a change of gender entry can be made simply by the person declaring so,” he said.

“No-one should be forced to undergo gender-affirming surgery in order to have their gender legally recognised.”

— Amnesty International Hong Kong director Man-kei Tam

The Hong Kong judge wrote that this decision should not be viewed as the government forcing trans people to undergo gender confirmation surgery, because anyone who gets the surgery has to give their consent.

Judge Au also decided that the government’s policy did not discriminate against trans people, because they had a path to achieving a legal gender change.

Gender confirmation surgeries vary drastically in price depending on the procedure needed, but can cost patients tens of thousands of pounds. Many trans people in the UK and US have resorted to crowdfunding to cover their expenses.

Hong Kong ruling on trans rights prompts dismay from activists

Man-kei Tam, director of Amnesty International Hong Kong, said that the judgment was “a blow for the recognition of transgender people.”

“It is a missed opportunity to address the discrimination transgender people in Hong Kong face,” he continued.

“No-one should be forced to undergo gender-affirming surgery in order to have their gender legally recognised. We urge the government to do the right thing and end this discriminatory and highly-intrusive policy irrespective of today’s ruling.

“The government should also swiftly introduce comprehensive legislation against discrimination on the grounds of sexual orientation, gender identity or intersex status.”