Not all transsexuals can or will choose to undergo sex reassignment surgery, and it should not affect their right to marry. Photo: Reuters

Change for better, or worse? Clearing up confusion over marriage bill rights

York Chow says transsexuals' right to marry should not be made conditional on surgery


On July 9, the Legislative Council will resume its second and third reading of the Marriage (Amendment) Bill. The bill was gazetted in February to implement the order of the Court of Final Appeal, which provides that transsexuals have the right to marry in their affirmed gender, after having completed sex reassignment surgery.

In the ensuing months, there has been extensive and divisive debate on the bill, which seemed to have raised, rather than answered, questions, many of which pertained to the work of the Equal Opportunities Commission.

For instance, some asked how a transsexual person can be considered a person with a disability under the Disability Discrimination Ordinance. Others were puzzled as to why the commission would object to a bill that enables transsexuals to marry. Still others have expressed concerns about the passage of the bill, citing the need to protect children and the traditional family from "moral degeneration".

It is worth clarifying our position. The commission considers complaints of discrimination from transsexuals under the ordinance because gender dysphoria is considered a mental health condition as defined by the World Health Organisation. The main factors to determine if such people have a disability is whether having gender dysphoria affects their thought processes and emotions. The ordinance can apply in relation to past disabilities, not just existing ones, too.

The confusion around this is also demonstrated in some of the unfair characterisations of transgender people, including attempts to equate them with sexual deviance, with which the commission strongly disagrees. Transgender and transsexual people are fellow members of humanity. Just because their gender identity does not match their biological sex, they are exposed to discrimination and constant indignities. These stereotypes further stigmatise a population that is already legally marginalised. Our society needs more public understanding and dialogue on the issue.

The commission's position on human rights concerns with the bill was well stated in our submission to the committee. Our point of contention is not about sex reassignment surgery's lawfulness as a form of treatment. For some, such surgery may indeed be their preferred form of medical treatment for gender dysphoria.

Rather, our main concern is with setting such procedures as a prerequisite for one to legally change gender and access rights, including the right to marry. As numerous medical experts have noted, not all transsexuals can or will choose to undergo full reassignment surgery, which is not without potentially dangerous complications.

The government has argued that the choice to undergo surgery ultimately belongs to each transgender or transsexual individual. But this is an oversimplification. If the ability to access rights is conditional upon having had such surgery in full, then the choice could hardly be categorised as truly "free". Indeed, those who cannot or choose not to undergo such operations are left at high risk of discrimination, given the possible incongruence between their appearance and their gender on identity documents.

The Court of Final Appeal rightly refrained from ordering that only people who have undergone full surgery can be recognised in their preferred gender. Instead, it recommended that the government establish a formal gender recognition process, specifically mentioning the UK's Gender Recognition Act as a possible model.

Disappointingly, the government's proposed bill fails to implement the court's recommendations. Instead, it has relegated the issue of possible gender recognition legislation to an inter-departmental working group, which has since indicated it will take two years to issue its report. In practice, this means possible continuing breaches and a lack of clarity for the rights of transsexuals for a substantial period.

It is worth noting that this bill, if passed, would incorporate the requirement of sex reassignment surgery for gender recognition into legislation for the first time. It would represent a significant shift from the current situation, where the requirement is only an administrative policy. To repeal it later would require legislative amendment - a considerably more arduous task.

It is also problematic to incorporate into law a provision that probably violates the human rights of transsexuals. Full sex reassignment surgery results in sterilisation. In May, the United Nations urged governments to "ensure that sterilisation, or procedures resulting in infertility, is not a prerequisite for legal recognition of preferred gender".

Elsewhere around the world, we have already seen progress on this front, with many countries shedding outdated requirements for gender recognition and taking proactive steps to ensure human rights of all. Hong Kong surely can also do better.

This article appeared in the South China Morning Post print edition as: Change for better, or worse? Clearing up the confusion over marriage bill