New laws needed to protect rights of all Hong Kong's transsexuals
Sam Winter calls for new laws to address the rights of transsexuals, not only regarding marriage, but in recognising their gender without the requirement of drastic surgery
Sally is a young Hong Kong Chinese woman. She is bright, attractive, likeable - and transsexual. Born with a male anatomy, she has been identifying as female for as long as she can remember. She is gender dysphoric - deeply unhappy about being regarded by others as male, and about having a male body. Puberty was a really difficult time for her. She remembers trying to pray away the changes she saw daily in the mirror.
Sally has taken hormones for some years. She looks no different from other attractive young Chinese women. You would not know she is transsexual. Poor in general health, she has not undergone the invasive genital surgery that "W" famously underwent. She is, as we say, "pre-op'"
Rejected for years by family and friends on the grounds of her transsexualism, unable to get a job because of a male ID card that leaves her open to whatever prejudices are out there, she recently slipped into a deep depression about her situation, attempting suicide twice in one week.
First hospitalised for emergency treatment, Sally was later committed into a local mental health institution; to a male ward, on the grounds that she had a male ID card. She spent several weeks there, surrounded by male inmates and male staff, until her discharge. She was deeply distressed and the experience has scarred her further. The bright light in Sally's life is her loving boyfriend. She would like to marry him. But that male ID card means she won't be able to.
When Ina was born, her mother was proud to have a son. But Ina grew up identifying as a girl. As a child, she would play with girls' toys, play girls' games, and dress in whatever female clothes she could get hold of. She hated being treated as a boy. Today a young transsexual woman, Ina would very much like to have surgery (breasts and genitals), but she has not so far had the chance. Ina's documentation shows her to be male. She can't get a job, and has no one to turn to. She does street sex work to survive. Recently, she was arrested for soliciting. She was prosecuted and sentenced to time in prison.
Correctional Services Department policy is that she is male. So there she is, a timid and anxious individual, female-identified but surrounded by male convicts. And, despite a compassionate magistrate's recommendation, hormone treatment is being withheld.
Julie is a 41-year-old transsexual woman, born in China, who came to Hong Kong around her first birthday. Experiencing gender dysphoria even in early childhood, and bullied in school on account of her feminine behaviour, she tried to repress her feelings for many years, hoping in vain that they would go away.
Depressed, she finally decided to begin living as a woman. She has been taking hormones for several years, has had laser facial hair treatment, and one day may have genital surgery. Desperate to be treated as a woman now rather than later, she recently made amateurish amendments to her ID card, getting caught when she tried to open a bank account in her female name. I saw Julie after her arrest. In one of the saddest confessions I have heard in 15 years working with transsexual people, she said, tears in eyes: "I just wanted to be able to go into the bank and have the counter staff address me as Miss. That's all I wanted." She faces serious charges.
The recent "W" judgment is a clear step forward for transsexual rights in Hong Kong. "Post-op" transsexual women like 'W' undergo surgery that is long, invasive and painful, and renders the individual forever sterile. Complications are common. Convalescence is long. It is not surgery that all transsexual women can undergo. Some are afraid. Some simply feel they cannot, for medical reasons.
A transsexual woman who has surgery does so in the knowledge that it will get her a new ID card reflecting her experienced gender. The card makes life easier in all sorts of ways - challenges such as going for a job, getting that apartment lease, and opening up that bank account - without facing the humiliation and degradation that comes from being addressed and treated as a man (or, worse, simply being refused that job or denied that bank account). If she is unfortunate enough to be hospitalised, or indeed jailed, it will be as a woman. And now, with the "W" decision, she knows she will be able to get married to the man she loves.
But what does the "W" judgment mean for pre-op transsexual women? For the moment, not much. The government now has 12 months to sort out legislation regarding transsexual marriage. The decisions taken in the next few months will be of immense significance to people such as Sally, Ina and Julie.
What they need, and badly, is a Gender Recognition Ordinance. One that goes beyond marriage issues, taking account of all those other situations in which gender recognition matters greatly to transsexual people. One that also addresses the needs, not only of post-op transsexual women like "W", but also of pre-op transsexual women. Tinkering around with the ordinances on marriage just won't suffice.
Sounds like a big job? No. In the "W" judgment, the UK Gender Recognition Act is presented as a possible model for Hong Kong legislation. Since 2004, the act has provided gender recognition in law to transsexual people who can show, with proper documentation, that they experience (or have experienced) gender dysphoria, that they have lived in their gender for at least two years, and that they intend living in that gender for the rest of their life.
The act provides a good model. But it is not the only one. Other jurisdictions have enacted (or are moving towards enacting) laws that set aside surgical preconditions for gender recognition.
If, contrary to good practice in Britain and elsewhere, Hong Kong were to put in place a law that set surgery as a precondition for legal gender recognition, then we would in effect be saying to transsexual women: "You want to enjoy the rights and opportunities enjoyed by the rest of us? You want to live in dignity and respect? First strip out your genitals, rearrange your insides, and make sure you come out sterile. Then come back and ask."
That is coercive medicine. And seen in the light of the emotional pain that many transsexual women already experience, it would constitute cruel, inhuman and degrading treatment. The same would go for transsexual men - for whom the surgery is even more invasive. That would not be a Hong Kong many of us would be proud of.
Dr Sam Winter is an associate professor at the University of Hong Kong and a member of the board of directors of the World Professional Association for Transgender Health