The transgender ID card case is lost again. Henry vows to appeal to the final court: fighting for human rights is not easy!

Written by: Emily

Text Editor: Cindy

At present, if transgender people want to change the gender on their Hong Kong identity card, they must complete a full set of gender-affirming surgery. However, the risk of full surgery is very high, and not everyone is suitable and willing to undergo surgery. In 2015, two transgender individuals challenged the Immigration Department's policy with a judicial review to change the gender on their identity cards. Following the loss of the first trial, the Court of Appeal of the High Court ruled against the two in January this year, reiterating that a full operation is the clearest, absolute and objective standard, and because gender identity involves all aspects of life, the court must ensure that the applicant's gender change cannot be reversed. ", hormone therapy, local surgery, etc. are not feasible options. The applicant, Henry Xie, was unavoidably disappointed after learning of the verdict, but said that he would not give up the appeal to the final court, and encouraged fellow travelers not to be disappointed: "Fighting for human rights is never an easy task, and the case of Miss W's transgender marriage rights is also a big deal. The final court won the case!”

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The immigration department refuses to change the identity card applicant, and the daily life of the applicant repeatedly hits the wall

The two applicants, Henry and Q, are both transgender women and men who have undergone breast removal surgery and hormone therapy in the past, and have lived as men for many years. Although the genders on their British passports have long been changed to males, when they applied to the Immigration Department to change their Hong Kong Identity Cards, they were rejected by the Immigration Department on the grounds that they had not completed a full set of gender affirmation surgery. The two had to apply for judicial review, asking the court to overturn the Immigration Department's policy of violating human rights.

Henry said that if the government followed the court's recommendation to enact a Gender Recognition Act to deal with all aspects of gender recognition after winning the Miss W case in 2013, the lawsuit would not have happened at all. He wanted to change his ID card because he encountered embarrassment and humiliation many times in his daily life: a sports lover, he once disappeared from the stadium because he was worried that the use of the locker room would cause disputes. He was questioned and rejected, unable to live a normal life.

Completing the whole set of surgery does great harm to foreign countries and proves that the surgery is not necessary

The current law stipulates that if a transgender person wants to change the gender on his ID card, he must complete a full set of operations (for example, a female transgender man needs to remove the uterus and ovaries, and then build a penis), which can only be exempted if the health condition does not permit it. . The applicants claimed that although they did not complete the operation, they had already had breast removal and hormone therapy. They also believed that the operations such as penis construction and hysterectomy were extremely harmful to the body and had no medical effect or substantial function. Furthermore, the applicant believes that a full-fledged operation for a transgender woman is more expensive and more complicated than a full-fledged operation for a transgender woman. If the standard is to complete a full-fledged operation, the law is equivalent to discriminating against a transgender person who is a woman.

Further reading: Transgender Henry: Returning My Boyhood｜Sexual Minority Media Reality Library

The applicant also cites many foreign examples, confirming that the government does not necessarily use the most rigorous and invasive standard of "completed surgery" to identify transgender people. For example, the Gender Recognition Act passed in the United Kingdom in 2004 only requires transgender people to submit a doctor's certificate to prove their gender dysphoria and live in the gender of their choice for two years. You have the right to change your gender on official documents.

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Court: The most clear and objective change in gender must be irreversible

Although the applicant criticized the standard of full operation as inhumane and disproportionate, the Court of Appeal accepted the government's explanation: ID cards play an important role in identifying front-line law enforcement officers, medical staff, government departments, etc., affecting social services, use of toilets, schooling Schools, participation in sports and many other areas, so the gender on the ID card must be consistent with the user's appearance and posture to avoid problems. Completing a full set of operations is "the clearest, absolute and objective standard", and there is no room for ambiguity. As for the applicant's claim that the Immigration Department can refer to the certificate issued by the doctor, the judge refuted that different doctors have different standards for what "change of sex" means. Going through hormone therapy, topical surgery, etc. is not enough to prove it.

In addition, the judge believed that the applicant failed to provide strong evidence to prove that the full set of operations for female transgender men was more dangerous and complicated than that of male transgender women, so that the number of female transgender men who could meet the policy requirements was much lower than that of male transgender women, and ruled that the Immigration Department did not have any discriminate. Although the judge said he "deeply understands" the obstacles that applicants face in their daily lives, he determined that they would encounter difficulties only when they needed to use an ID card to indicate their gender, and that they "could continue to live in the gender they are comfortable with" on weekdays. , and even use the British passport instead of the Hong Kong ID card to solve the problem. After balancing the applicant's rights and the public interest, the Court of Appeal finally ruled that the applicant's appeal was unsuccessful and upheld the original judgment.

Henry: Judge underestimated the importance of changing ID cards

Henry said to Point G after the ruling that although he understands that the odds of winning this time are not high, he is still disappointed to lose the case. He criticized the court for underestimating the importance of changing the gender of the ID card for transgender people. For example, if he uses women's toilets and other women's spaces on weekdays, he will be charged with loitering at any time. The law also requires citizens to carry ID cards when they go out, and the police will check them at any time. his credentials. Despite losing the case again, Henry has decided to appeal to the final court, and encouraged non-binary friends not to be discouraged: "Fighting for human rights is never an easy task, and Miss W's transgender marriage rights case won't be won until the final court, so Don't feel too lost by the ruling." Although the road is long, we can still hold on to hope and fight for the rights of the gender minority bit by bit.

Gender Recognition Law Consultation Working Group for Nearly 10 Years Lacks Transgender Representatives

The case is not the first time transgender people have fought for equal rights. As early as 2013, Miss W won the case of marriage rights of transgender people , and the final court ruled that "women" in the "Marriage Ordinance" includes women who have completed gender affirmation surgery, which protects Miss W and her boyfriend's right to register and marry in Hong Kong. At that time, the court suggested that the Government should make reference to the Gender Recognition Act of the United Kingdom to formulate legislation to comprehensively deal with the issue of gender recognition in all areas.

In order to follow up on the court's recommendations, the government set up the "Advisory Group on Elimination of Discriminatory Minorities" in the same year . The advisory group reached the same conclusion in 2015 and recommended that the Government study the implementation of measures to eliminate discrimination in other jurisdictions. The Government has also established the " Inter-departmental Working Group on Gender Recognition " and launched the first stage of public consultation on the gender recognition system in June 2017. However, although the working group was set up to deal with the issue of gender recognition, there are no transgender members among the group members. On the contrary, there is Huang Jiming, SC, who represented the government in the Miss W case and the Henry case. It is doubtful whether it can really reflect the transgender community. sound. After the public consultation expired at the end of 2017, the government has not yet released the first-stage consultation report and launched the second-stage public consultation. In the past 10 years, the legislative process has only heard the sound of stairs, and the efficiency is staggering. He Yue can look forward to the "Gender Recognition Law", only by constantly fighting for equal rights.

Further reading: [Equal rights from the data] Has the transgender situation really improved since the W case?

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