Introduction

On 6 February 2023, the Court of Final Appeal (“CFA”), the highest court in Hong Kong, handed down its landmark judgment in Q, Tse Henry Edward v Commissioner of Registration [2023] HKCFA 4. The CFA ruled in favour of Q and Mr Henry Edward Tse, who are female to male transgender persons, and found the Hong Kong Government has breached their constitutional rights by refusing them from using their acquired gender (i.e. male) on their identity cards without undergoing full sex reassignment surgery.

The gender marker

Every resident over the aged of 11 is required to register for a Hong Kong Identity Card (“HKID card”), production and inspection of which is engaged routinely in a wide variety of everyday activities as a means of verifying a person’s identity. The HKID card will indicate whether the holder is male or female (“gender marker”).

The appellants

In Q, Tse Henry Edward, the two female to male transgender appellants were diagnosed with gender dysphoria. They have undergone lengthy course of medical and surgical treatments designed to affirm their male gender identity. Their gender dysphoria has been medically certified to have been sufficiently attenuated without any further need for additional surgical procedures. For medical purposes, the appellants can be regarded as having transitioned from their assigned female gender to the acquired male gender.

The appellants applied to the Commissioner of Registration (“Commissioner”) to have the gender markers on their HKID cards amended to reflect their acquired gender on the basis that the unamended gender markers (i.e. female) will cause them to suffer discrimination, humiliation, violation of their dignity and invasion of their privacy as resulted from having to reveal to third parties their transgender status when producing their HKID cards. The Commissioner refused their applications on the basis that under the policy as contained in guidelines issued on 5 April 2012, the appellants are required to have undergone full sex reassignment surgery (which may involve removal of the uterus, removal of the ovaries, removal of the vagina and phallus construction) to qualify them for a change of the gender markers (“Policy”).

The judicial review and appeal

The appellants brought judicial review proceedings to challenge the Commissioner’s refusal on the basis of violation of their constitutional right to privacy under Article 14 (Protection of privacy, family, home, correspondence, honour and reputation) of the Bills 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.”

Their applications before the Court of First Instance and the Court of Appeal were both dismissed. The appellants further appealed to the CFA.

The final appeal

The CFA was of the view that in the case of a constitutional challenge alleging a violation of a constitutional right or freedom, it is first necessary to identify whether a constitutional right is engaged. The next question is to ask whether the impugned provision or conduct amounts to an encroachment on such right, being an interference with, or restriction of, that right. If so, unless the constitutional right is absolute, a proportionality assessment must then be undertaken to determine whether such interference with the right can be justified.

Constitutional right to privacy

The CFA was of the view that BOR 14 is clearly engaged in the present case. The Policy concerns the appellants’ eligibility for an altered HKID card gender marker which reflects their acquired gender to enable them to conduct their lives and affairs consistently with their experienced gender. The gender marker does not signify recognition of the holder’s sex as a matter of law but it merely operates as an element of an identification document.

The CFA found that the refusal to allow an amendment to the gender marker involve humiliation, distress and loss of dignity in routine activities that require inspection of HKID cards. Furthermore, the Policy’s condition that the applicants undergo full sex reassignment surgery 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. The constitutional right under BOR 14 is clearly engaged and the Policy does constitute an encroachment upon such right. The Commissioner has the burden to prove the Policy can be justified as satisfying the test of proportionality.

 

Proportionality test

The CFA agreed that it is generally desirable and legitimate that clear guidelines, like the Policy in this case, should be drawn up to give direction to those administering a policy and to inform those affected by it. The requirement for certification of completion of full sex reassignment surgery does suggest a rational connection.

In relation to the proportionality test, the CFA ruled that since the Policy concerns the expression of an individual’s gender identity on a HKID card and a requirement to undergo extensive surgical intervention as a condition of a change of gender marker, it calls for a narrower standard of scrutiny, namely the “no more than reasonably necessary” standard.

CFA rejected the three main reasons for refusal put forward by the Commissioner and concluded that:

1.       full sex reassignment surgery is not the only workable, objective and verifiable criterion to enable a registration officer to determine the application for amendment;

2.       the requirement of full sex reassignment surgery is not justified by a need to avoid practical problems that were alleged by the Commissioner; and

3.       the exceedingly small risk of post-transition reversibility leading to pregnancy cannot justify adherence to the Policy.

 

The CFA ruled that the Policy fails the test of reasonable necessity and is disproportionate, where CFA said, among other things, that “the societal benefits of the Policy are in many aspects illusory and are at best relatively slim”. The full sex reassignment surgery is highly invasive and is not medically required by many transgender persons whose gender dysphoria has been effectively treated like the appellants. The Policy clearly does not reflect a reasonable balance.

The CFA allowed the appeals and quashed the Commissioner’s refusal. The CFA granted a declaration that the Commissioner’s refusal and the Policy requiring female to male transgender persons to undergo full sex reassignment surgery as a necessary condition for altering the gender markers on HKID cards as unconstitutional and violating the appellants’ BOR 14 rights.

Takeaways

As a result of this CFA’s landmark judgment, female to male transgender persons will no longer have to undergo full sex reassignment surgery prior to amending their gender markers on their HKID cards. However, this case only focuses on female to male transgender persons. The CFA has expressly left the male to female situation untouched. Therefore, whether male to female transgender persons can change of their gender marker (i.e. female) without undergoing full sex reassignment surgery is uncertain.

 

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2023