Hong Kong ruling allows gender change on IDs

HONG KONG — Hong Kong’s highest court handed down a landmark ruling Monday that will allow transgender people to amend their gender listing on their identity cards without undergoing full reassignment surgery.

Activists said the decision sets a positive tone for future debates on transgender rights in Hong Kong, but they called for gender recognition legislation as the crucial next step to protect their rights.

The Court of Final Appeal ruled that the government had breached the rights of two transgender people when it rejected their applications to have their gender listing changed on their ID cards because they had not undergone full reassignment surgery.

The case means that transgender people will now be able to access activities as simple as bank services or gender-segregated facilities such as gyms or toilets without having to worry about being humiliated, embarrassed or outed.

The legal challenge was brought in 2019 by Henry Edward Tse and another person — who was identified only as “Q” — against the Commissioner of Registration after an official refused to review their gender status on their Hong Kong identity cards. The two transgender men have successfully amended their gender markers on their British passports.

In 2019 and 2022, two lower courts in Hong Kong rejected Q and Tse’s appeal, siding with the government that a transgender person is required to undergo full sex reassignment surgery to amend their gender marker.

The procedure for Q and Tse would include the removal of the uterus and ovaries and the construction of male genitalia, surgery that Tse said could be risky and lead to complications. The challenge asked to scrap such a prerequisite.

In a judgment released Monday afternoon, the court reasoned that the kind of “incongruence” that most commonly causes problems for transgender people arises from discordance “between the gender marker and a transgender person’s outward appearance,” and not the appearance of the “genital area.”

“The policy’s consequence is to place persons like the appellants in the dilemma of having to choose whether to suffer regular violations of their privacy rights or to undergo highly invasive and medically unnecessary surgery, infringing their right to bodily integrity. Clearly this does not reflect a reasonable balance,” the court wrote.

Hong Kong’s struggle over transgender rights has been primarily advanced through battles in court. In another landmark case, in 2013, the Court of Final Appeal decided that a transgender woman who had undergone full sex reassignment surgery was entitled to marry as her acquired gender. Following the case, the city launched a public consultation in 2017 to explore the possibilities of creating gender recognition laws, but no further action was taken.

Compared with other Asian countries, Hong Kong falls somewhere in the middle in terms of transgender rights, said Kelley Loper, director of the Master of Laws in Human Rights program at the University of Hong Kong.

India affirmed the right to gender self-determination in previous court cases; Taiwan in 2021 stripped the surgery requirement for legal gender change. Last year, China scrapped the conditions of psychiatric treatment and counseling and lowered the minimum age for trans youths to access gender reassignment surgery, according to the China Project.

Loper said that although Monday’s ruling is a significant step toward better protection of transgender people in Hong Kong, there is still a long way to go. She noted that the city still does not recognize nonbinary gender categories, unlike many other countries.