Administrative & Public Law — Court of Final Appeal delivers landmark ruling in favour of female-to-male transsexuals seeking to amend gender markers on HKID cards without undergoing full sex reassignment surgery
Each of the Appellants had already undergone a lengthy course of medical and surgical treatments, including psychiatric treatment, hormonal treatment, mastectomy (i.e. removal of breasts) and real experience of living life as males with professional support and guidance.
Q v. Commissioner of Registration; Tse Henry Edward v. Commissioner of Registration
| Reference: | • (FACV8/2022) [2023] HKCFA 4
• (FACV9/2022) [2023] HKCFA 4 |
| Court: | Court of Final Appeal |
| Before: | Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Sumption NPJ |
| Appearance: | Lord Pannick KC and Hectar Pun SC, leading Earl Deng, acted for the two Appellants. |
| Date of Decision: | 6 February 2023 |
Overview
The Appellants in both cases are female-to-male transgender persons diagnosed with gender dysphoria. After undergoing a lengthy series of medical and surgical treatments, the Appellants acquired masculine bodily features and were medically certified as no longer requiring further surgical procedures for social integration and psychological well-being.
On this basis, the Appellants applied to the Commissioner of Registration (“the Commissioner”) for the amendment of the gender markers on their Hong Kong identity cards to reflect their acquired gender. The Commissioner refused their applications on the basis that they had not undergone full sex reassignment surgery – a highly invasive procedure to remove the uterus and ovaries and construct an artificial penis – as required by the Commissioner’s policy (“the Policy”).
The Appellants’ judicial review challenges against the Policy were dismissed by the Court of First Instance and the Court of Appeal. Hearing their appeals together, the Court of Final Appeal unanimously ruled in their favour and held that the Commissioner’s refusals and Policy violate the Appellants’ right to privacy under Article 14 of the Hong Kong Bill of Rights and are unconstitutional.
Background Summary
The Appellants, Q and Henry Edward Tse, are female-to-male (“FtM”) transgender persons. They were biological females at birth but have identified themselves as males since their youth. They have been diagnosed as suffering from gender dysphoria, a medical condition involving much distress and discomfort arising out of the discordance they experienced between the (female) sex assigned to them at birth and the (male) gender.
Each of the Appellants underwent a lengthy course of medical and surgical treatments, including psychiatric treatment, hormonal treatment, mastectomy (i.e. removal of breasts) and real experience of living life as males with professional support and guidance.
As a result of the treatments, the Appellants acquired masculine bodily features, and their gender dysphoria was later medically certified to be sufficiently attenuated to enable social integration and psychological well-being, without the need for additional surgical procedures.
Subsequently, they applied to the Commissioner of Registration (“the Commissioner”) to have the gender markers on their Hong Kong identity cards (“HKID cards”) amended to reflect their acquired (male) gender. The original (female) gender markers had caused the Appellants to suffer discrimination, humiliation, violation of their dignity and invasion of their privacy resulting from having to reveal to third parties their transgender status when producing their HKID cards.
At the time, it was the Commissioner’s policy that a transgender individual must as a condition undergo full sex reassignment surgery (“SRS”) before the amendment of the HKID card’s gender marker (“the Policy”) can be granted. On this basis, the Commissioner refused the Appellants’ applications since they had not completed full SRS (“the Refusals”).
In the case of FtM transsexualism, a full SRS involves removing the uterus and ovaries and constructing an artificial penis – surgical procedures which are at the most invasive end of the treatment spectrum for gender dysphoria, and which carry certain post-operative risks and possible complications. Medical evidence shows that a full SRS is not required by many transgender persons (including the Appellants) whose gender dysphoria has been effectively treated, and who are successfully living in their acquired gender.
Judicial Review Proceedings before the Court of First Instance and the Court of Appeal
The Appellants commenced judicial review proceedings against the Commissioner, arguing among others that the Refusals amount to an unlawful interference with their constitutional rights under Article 14 of the Hong Kong Bill of Rights (“BOR 14”), which provides:
“(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of the law against such interference or attacks.”
After the Court of First Instance and the Court of Appeal dismissed their applications, the Appellants were granted leave to appeal to the Court of Final Appeal (“the CFA”).
The Court of Final Appeal’s Ruling
The parties do not dispute that the rights protected under BOR 14 include the rights to gender identity and physical integrity. The focus on the appeals before the CFA was whether the condition of full SRS underlying the Policy could be justified as proportionate, and as having struck a reasonable balance between the Policy’s societal benefits and the Appellants’ BOR 14 rights.
The CFA found that BOR 14 is clearly engaged in the present cases and the Policy constitutes an encroachment upon the relevant rights:
“…Privacy is a concept inherently linked to a person’s dignity. The Policy concerns the appellants’ eligibility for an altered ID card gender marker which reflects their acquired gender to enable them to conduct their lives and affairs consistently with their experienced gender. The refusal to allow an amendment to the gender marker involves, as the evidence discloses, humiliation, distress and loss of dignity in routine activities involving the inspection of their HKID cards. Furthermore, the Policy’s condition that they undergo full SRS requires them to make a choice between accepting frequent infringements of their BOR14 rights to privacy when using unamended ID cards and undergoing major invasive and medically unnecessary surgery.” (Judgment, §46)
The Commissioner advanced three justifications for the Policy’s proportionality, which were all rejected by the CFA:
• The Commissioner argued that a full SRS was the only workable, objective and verifiable criterion to enable a registration officer to determine the application for amending the HKID card gender marker.
The Court disagreed, since the available medical exemption under the existing Policy and examples of different polices in other jurisdictions indicate that other criteria would be plainly workable without causing administrative difficulty. The Commissioner could also stipulate the acceptable medical certification for satisfying criteria that do not involve full SRS.
• The Commissioner contended that if another criterion were adopted, there would be practical administrative problems due to incongruence between the external physical appearance of the cardholder and the gender marker.
The Court took the view that, in most cases, leaving the gender marker unamended simply because the transgender person had not undergone full SRS produced greater confusion or embarrassment, and rendered the gender marker’s identification function deficient. The kind of incongruence which most commonly caused problems arose out of the discordance between the gender marker and a transgender person’s outward appearance, not the appearance of the genital area.
• According to the Commissioner, since hormonal and psychiatric treatments that precede full SRS are not absolutely irreversible, this creates a risk that an FtM pre-operative transsexual with an amended HKID card sex entry would stop hormonal treatment and become a mother.
The Court did not accept that this risk, which is exceedingly small, justifies full SRS.
Accordingly, the Court unanimously allowed the appeals and quashed the Refusals. Furthermore, the Court granted a declaration that the Refusals and the Policy violate the Appellants’ rights under BOR 14 and are unconstitutional.
The CFA ruling received widespread local and international media coverage, including:
• (in English) South China Morning Post, Hong Kong Free Press, The Standard (HK), RTHK, Reuters, and Washington Post
• (in Chinese) 明報, hk01, 香港電台, 有線新聞, BBC News 中文.
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Hectar Pun SC
“Hectar is very senior and offers very professional delivery and impeccable performance as a court advocate. He’s a judicial review human rights specialist, and obviously a judicial review specialist in general.” — Chambers and Partners Greater China Region 2023, Administrative and Public Law: Spotlight Table: Silks Hectar’s practice spans many areas including constitutional and administrative law, human rights law, immigration law, criminal law, land law, company law and commercial law. He appears regularly on behalf of applicants in major judicial review proceedings. He is ranked in Chambers and Partners as well as The Legal 500 Asia-Pacific 2023 as a “Leading Silk” in Administrative and Constitutional Law. Hectar has acted for the Catholic Diocese of Hong Kong, legislative councillors, district councillors, demonstrators, police officers, prisoners, refugees and asylum seekers, tenants of public housing estates, homosexuals, transsexuals, the disabled and the underprivileged, etc. Visit Hectar’s profile for more details. |
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Earl Deng
“He is a proactive and quick-thinking advocate. He adapts himself well to understanding and answering concerns from the bench.” — The Legal 500 Asia-Pacific 2023 Earl Deng read Law at the University of Cambridge, Fitzwilliam College on a Prince Philip Scholarship Bursary and was called to the Hong Kong Bar in 2008, joining Chambers in the same year. Earl has an active civil law practice involving advisory and advocacy work in complex commercial, contractual, chancery, and intellectual property disputes and is known as a specialist advocate for public and administrative law matters and sexual minority rights. He has been recognised as a “Leading Junior” in The Legal 500 Asia-Pacific 2023 for the areas of Administrative and Constitutional Law, Commercial Disputes, and Labour and Employment. Find out more from Earl’s profile. |
This article was first published on 20 February 2023.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.