Hong Kong court strikes down ‘unacceptable’ gender law that forces surgery on trans people

Hong Kong’s highest court handed down a landmark ruling that will allow trans people to change their gender on identity cards without undergoing surgery.

Trans activist Henry Edward Tse and another trans man, only identified as “Q”, filed a legal challenge in 2019 against the government’s current policy that trans people can only update their gender on ID cards if they undergo certain gender-affirming surgeries.

Hong Kong ID cards display the sex assigned to a person at birth unless an individual medically transitions and undergoes gender-affirmation surgery. 

The rules would require Tse and Q, as trans men, to undergo surgical procedures which would include the removal of their internal reproductive organs. The surgical procedure would also require the construction of a penis or “some form of a penis”. 

In the years since they filed their legal challenge both trans men have faced repeated defeats in the fight to to be registered as their correct gender on the document. 

Both men have British passports which affirm their gender, and they’ve both had top surgery. 

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Before the ruling, Tse told AFP the policy effectively “outed” trans people “every time we present our ID”. 

He explained that the requirements effectively coerced trans people into undergoing invasive, costly medical procedures to change their IDs – despite the health risks associated with such treatments. 

In its ruling, the Court of Final Appeal ruled in favour of the two men and found the surgical requirement unconstitutional. The court said the policy imposed an “unacceptably harsh burden on the individuals concerned”.

“The policy’s consequence is to place persons like the appellants in the dilemma of having to choose whether to suffer regular violations of their privacy rights or to undergo highly invasive and medically unnecessary surgery, infringing their right to bodily integrity. Clearly, this does not reflect a reasonable balance,” the judges wrote.

Tse said the ruling is “delayed justice”, as trans peoples’ “dignity has been damaged” by the rules.

“We all dreamt that we will not be outed by our ID cards anymore, that we will no longer be rejected to cross borders and come back to Hong Kong our home, and be stripped of our rights to marry and establish a family with the opposite sex,” he told the press after the ruling

“In every aspect of everyday life, our dignity has been damaged. This case should never have happened in the first place.”

The trans community continues to face discrimination and stigma in Hong Kong, and its gender recognition laws have been described as “archaic” by LGBTQ+ advocates. 

In 2021, the Chinese University of Hong Kong published a widespread survey of trans people on their experiences living as their authentic selves in the city. 

More than half of the 234 trans people reported facing discrimination in their workplaces, schools and businesses. A majority (76 per cent) felt rejected in their social lives, including by their families and partners. 

Many also reported that they experienced victimisation – including verbal or physical assault, unwanted sexual conduct, threats and blackmail – because of their gender identity. 

On 2 February, Finland passed a new law removing the requirement for trans people to be sterilised before they can obtain legal gender recognition.

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