Hong Kong top court set to hear final legal bid against policy limiting gender status change on ID cards
- Court of Appeal endorses application by Henry Edward Tse and person identified as Q for top court to revisit their challenge against government refusal to amend ID cards
- Litigants had their breasts removed, received hormonal treatment and lived as men, but decided against full sex reassignment surgery
Hong Kong’s top judges are set to hear a final challenge against a controversial policy limiting gender status changes on identity cards to only those who have undergone sex reassignment surgery, after a lower court found the issue to be of great general or public importance.
The Court of Appeal on Friday endorsed an application by Henry Edward Tse and a person identified only as Q to have the Court of Final Appeal revisit questions arising from a judicial review of the government’s refusal to amend the pair’s ID cards.
Under the existing regime, the commissioner of registration will only amend the gender entry on an identity card if the holder has had full reassignment surgery, unless there is medical proof the individual cannot undergo the operation.
The litigants had their breasts removed, received hormonal treatment and lived full-time as men, but retained their uteruses and ovaries and decided against undergoing surgery to construct genitals of the opposite sex. Both of them have since been issued British passports stating their gender as male.
The Court of First Instance dismissed the pair’s bid in 2019. The Court of Appeal upheld that ruling in January this year.
Hong Kong appeal court rules against transgender pair on identity card change
In a five-page judgment released on Friday, Chief Judge of the High Court Jeremy Poon Shiu-chor said the policy potentially entailed an infringement of the appellants’ rights to privacy and against inhuman treatment as enshrined in the Hong Kong Bill of Rights.
The present proceedings also called into question how the court should assess the acceptable level of a policy’s interference with personal rights, the judge added.
Justices Susan Kwan Shuk-hing and Aarif Barma approved Poon’s findings.
Hong Kong currently has no legislation providing for the recognition of the reassigned, acquired or preferred gender of a person for all legal purposes.
The gender entry on the identity card is nothing but an identifier under a binary system of male or female, and does not confer any legal status or recognition of the person’s gender.
2 transgender men in court fight over changing sex on Hong Kong ID cards
The litigants argued the policy requirement was nonetheless discriminatory, with Tse complaining he had faced routine humiliation from bank tellers, service providers and law enforcement officers while also choosing to avoid public toilets and changing facilities for fear of being stopped and questioned.
In their earlier judgment, the three appeal judges ruled the policy was justified as a matter of law, noting full surgery was the “most objective and definite” yardstick that registration officers could apply in any given application for an amendment.
While the judges were “profoundly conscious” of the hardship faced by the appellants, they said the pair’s predicament “only arises on a need basis” whenever they presented their identity cards.
