'Let people change sex without surgery'

Legal expert argues Hong Kong laws should follow UK example and define people's gender by whether they live as a man or a woman

PUBLISHED : Saturday, 07 September, 2013, 12:00am
UPDATED : Saturday, 07 September, 2013, 8:39am

A legal expert has argued that the government should use British legislation as the benchmark when putting into place policy for transgender individuals.

Dr Jens M. Scherpe is a senior lecturer at Cambridge University and a visiting professor at the University of Hong Kong. He is also the principal organiser of a two-day conference on the legal status of transsexual and transgender people that began at HKU yesterday.

Scherpe's main point was that the government should start to address the process of recognising a person's acquired gender. To be classed as a different gender in Hong Kong today, you must first have reassignment surgery, which Scherpe believed was uncalled for. He said it was not a requirement in most European countries.

He believed government policy should take reference from British legislation, where gender recognition is achieved by considering different factors, including living in the acquired gender for a certain period of time, but not having to go through gender reassignment surgery.

"All the modern laws have done away with this requirement. By forcing that decision upon a person you are violating a constitutional right in the likes of the UK," he said.

Many transgender individuals do not wish to undergo surgery, which can be a prolonged, drastic and painful process, and not without complications. But without a clearly defined gender-recognition process, transgender individuals in Hong Kong who do not undergo an operation are in a legal limbo, unable to change their identity documents and access the rights of their identified gender.

"That's why UK legislation is an interesting model to look at. Hong Kong is generally in the same position in its Basic Law. Not least because the UK legal background is still relatively similar to Hong Kong's," he said.

In May, the Court of Final Appeal set a milestone for this city with its judgment on the case of Ms W, a post-operative male-to-female transsexual, who fought, against the odds, to be recognised as a woman and for the right to marry.

Despite this victory, Ms W's lawyer Mike Vidler, who also attended the conference, felt much still remained to be done to advance equality for these individuals and that British legislation laid down the appropriate guidelines to follow.

"The Court of Final Appeal verdict certainly leaned towards the UK model," Vidler said.

"It was also, I think, hinting strongly that future legislation should not be requiring that the person must have surgery. UK legislation certainly provides the right starting point to work from."

But the introduction of suitable government policy is just a starting point. According to a 2012 survey commissioned by Community Business, 77 per cent of workers who responded said they did not know what "transgender" means.

Currently, the Equal Opportunities Commission handles discrimination complaints from transgender individuals under the Disability Discrimination Ordinance, since gender-identity disorder is categorised as a mental health condition.