‘Legitimate’ to make transgender people get full sex reassignment to amend Hong Kong ID, court hears

Government lawyer refutes claim the requirement is inhuman or degrading

PUBLISHED : Wednesday, 10 January, 2018, 9:16pm
UPDATED : Wednesday, 25 April, 2018, 11:46am

Complete sex reassignment surgery is a “legitimate and sometimes necessary medical treatment”, the Hong Kong government argued in court on Wednesday, rejecting claims that requiring transgender people to undergo it before amending their local identity cards was cruel, inhuman or degrading.

“It’s a legitimate medical treatment practised by doctors around the world, including in the public health system in Hong Kong,” said Stewart K M Wong SC, for the government.

“It cannot be described as inhuman or degrading. That would require a level of severity.”

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Three transgender men are challenging the government’s requirement that they undergo a full sex change before their local identity cards are amended to state they are male. They are seeking a judicial review over the Commissioner of Registration’s prerequisite on the grounds that it infringes their rights not to be subjected to inhuman or degrading treatment, as well as their rights to privacy. The three also said it constituted indirect discrimination under the Sex Discrimination Ordinance.

Wong, for the government, argued that a “fair number of European countries” still imposed a similar requirement.

It’s a legitimate medical treatment practised by doctors around the world
Stewart Wong SC, for the government

The senior counsel tried to refute the argument that transgender people were being coerced into surgery they did not want.

“It has always been with their full informed consent,” he said, adding they had a range of options.

However, Mr Justice Thomas Au Hing-cheung recalled instances of discrimination and harassment that transgender people said they faced in their daily lives for not having an identity card stating their new sex.

“Is there a real choice for them to say they don’t want to change their ID?” the judge asked.

While conceding that not everyone would wish to undergo a full sex reassignment surgery, Wong insisted “that does not mean the whole requirement is against human rights”.

The senior counsel also raised potential difficulties if the full surgery were not requested, saying hormonal treatments might not limit an individual’s fertility. He gave the example of a woman who transitions to a man but retains ovaries and a vagina.

“What happens if a person with a male identity card gives birth?” Wong asked. “What is the implication?”

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He argued that it was necessary to strike a balance between protecting the rights of individuals and the public interest.

The hearing began with Hectar Pun SC, for the applicants, proposing a “workable model” based on a self-declaration in which a person would say they wanted to live permanently in their affirmed gender. Pun suggested that only minimal medical evidence would be required.

He noted that any person providing false information would be liable for prosecution.

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Last week, the city’s equality watchdog also suggested a statutory declaration in a proposal it submitted to the government.

Wong said a workable model was indeed needed but that a self-declaration was not sufficiently objective.

The High Court began hearing the case on Tuesday. It continues on Thursday.