On February 6, the Court of Final Appeal ruled against the government in a case where a transgender person who had not completed sexual organ surgery was refused by the Immigration Department to change the gender of his identity card, and declared that the policy involved in the case violated the rights guaranteed by Article 14 of the Hong Kong Human Rights Law.
The trans community described the verdict as "justice overdue", a light at the end of a long dark tunnel.
However, looking back at the past, the government’s attitude towards following up sexual minorities’ cases, diverse education and friendly policies still depend on the promotion of all parties. This seems to be a long and unfinished battle for equal rights. Where should the future development of gender equality in Hong Kong go?
"Hong Kong 01" invited Zephyrus, a trans man and a trans woman who is the vice-chairman of Quarks, a transgender equality organization that has been committed to connecting Hong Kong's transgender youth and promoting public education. Christine accepted an exclusive interview to talk about their views on the judgment and their expectations for society.
Zephyrus (right), vice-chairman of Quarks, a trans man (right); Christine, a trans woman (left), a member.
(Photo by Xia Jialang)
When it comes to gender issues, what I have to mention is "gender pronouns", including "He/Him/His", that is, I think I am a man in terms of gender identity; "She/Her/Hers", that is, gender identity "They/Them/Their", that is, gender neutral (gender neutral), do not particularly feel that they are men or women.
Zephyrus is a doctor, whose natural gender is female, but self-identifies as male, so his gender pronoun is "He/Him/His"; She identifies as a woman, so her gender pronoun is "She/Her/Hers".
Gender is not a change but an affirmation
The reporter initially asked questions using the words "gender reassignment surgery" in the immigration documents. Zephyrus and Christine smiled at each other when they heard the term "gender reassignment surgery".
Pressed by the reporter, Christine explained: "'Reset' emphasizes the change from X to Y, but (gender) does not change, but (should) confirm a person's gender... The whole world calls gender 'affirmation' surgery, it is The immigration department is called "reset." A term that reflects the Hong Kong government's attitude towards sexual minorities.
Christine: "Gender should not be changed, but should be affirmed." (Photo by Xia Jialong)
"I feel that they (the government) don't really recognize transgender." Zephyrus bluntly said that everyone has different needs and requirements for surgery, and gender identity has nothing to do with sexual organs. However, in the eyes of the government, surgery seems to be a bargaining chip , meet the conditions first, and then talk about equal rights.
As a doctor, Zephyrus explained the risks and contradictions of gender affirmation surgery more carefully, pointing out that gender affirmation surgery may cause physical discomfort and even complications, and according to the World Professional Association for Transgender Health It is pointed out that the types of "gender affirmation surgery" involve dozens of items, so there is no so-called "full set" surgery at all, and the Immigration Department only extracts surgery related to sexual organs as a requirement for changing the gender of the ID card. ) is it important? Did he (Immigration Department) care about your breasts?"
Winning the lawsuit means that the victory of human rights can bring enlightenment to the government?
Both of them are very happy about the final victory of this judicial review. Zephyrus described it as a victory representing human rights in Hong Kong, and they regained confidence in the rule of law in Hong Kong.
Christine said bluntly: "The judgment is not only a victory for the transgender community, but also a major milestone for the equal rights of sexual minorities in Hong Kong." She continued to point out that under Article 14 of the Hong Kong Human Rights Act, human rights include the right of individuals to gender identity. She also recognizes that gender identity is a basic human right, which she describes as "fundamental rights" and cannot be deprived by any government policy. She believes that the case provides "enlightenment" for the Immigration Department.
Immediately after the government lost the lawsuit, the Immigration Department stated on its website that the Director of the Registration of Persons is now carefully studying the court's judgment and reviewing the above-mentioned policy on changing the gender on the identity card.
(Screenshot of the website of the Immigration Department)
Immediately after the court issued its judgment, the website of the Immigration Department added "The Director of Personnel Registration is now carefully studying the court's judgment, reviewing the above policy on changing the gender on the ID card, and will seek legal advice , to take follow-up actions to comply with the judgment of the Court of Final Appeal.” The Immigration Department’s actions seem to be swift, but in fact, can it really respond to the demands of sexual minorities?
After more than ten years of road to equal rights, the government's attitude is still conservative
Except for this case, in fact, as early as 2009, Ms. W, a transgender person in her 30s, successfully changed her identity card gender (administrative gender) to female and wanted to marry her boyfriend after completing gender affirmation surgery. Based on the sex at birth (legal sex) of both parties, Ms. W did not meet the definition of "female" and refused to register her. She filed for judicial review in the same year.
After the case was appealed to the Court of Final Appeal, the chief judge, Dao-Li Ma, said: "It would be unfair to her to judge that she cannot marry because of her inborn chromosomes." In the end, after Miss W lost the case in the High Court, she "reversed win".
The case of Ms. W also reveals the contradiction between "legal gender" and "administrative gender" in Hong Kong. The court indicated that the Hong Kong government should consider making reference to the British "Gender Recognition Act" to enact legislation.
In order to follow up on the ruling, the government established the "Gender Recognition Interdepartmental Working Group" in 2014 to conduct research on enacting the "Gender Recognition Act".
However, in the past nine years, the legislation of the "Gender Recognition Act" has not seen any progress from the authorities. During this period, there have been Mr. K's "Public Toilet Regulations" case, the former convener of the Democratic Front, Cen Zijie's recognition of overseas same-sex spouses, and public housing housing for same-sex couples. Cases involving equal rights for sexual minorities followed one after another.
"Hong Kong 01" asked the Immigration Department about the final ruling on changing the gender of the identity card. The Immigration Department stated: "The government respects the judgment of the Court of Final Appeal. We are carefully studying the judgment of the court and will seek legal advice for follow-up actions. .”
The Constitutional and Mainland Affairs Bureau in charge of the "Gender Recognition Interdepartmental Working Group" responded: "As for the decision to amend the gender marker on the Hong Kong ID card, we understand that the relevant policy bureau is studying the relevant decision." When asked about "Gender Recognition Law, the bureau said only that the working group is conducting research on this multi-faceted topic.
Chief Executive Lee Ka-chao said before attending the guild meeting on February 14: "The SAR government must act according to the judgment of the Court of Final Appeal, and the Security Bureau will follow up appropriately."
Advocate the establishment of the "Gender Recognition Act" and accept the self-declaration
The government always responds to minor sexual rights cases with words like "under study" and "will follow up".
Christine said bluntly: "The law is determined by people. Everyone knows the procedure. It is not a difficult thing. It is just that I have been unwilling to do it... The ruling in the Ms. W case has clearly listed the laws that need to be amended regarding gender. , changed his ID card, but the government still does not recognize him. The most funny thing is that in 2023, Mr. K’s public toilet case, the same problem will appear again. Taking a step back, is it necessary to distinguish between legal gender and administrative gender? The government is trying to do it through Judicial review, amendments one by one, a waste of time and public money!"
(Photo by Xia Jialang)
She also said frankly that even though the "identity card gender case" won, she is still not optimistic about the progress of equal rights for transgender people and sexual minorities. The problem is that Hong Kong does not have an effective gender recognition law. We don’t know when there will be similar cases, such as the “Mr. K” bathroom case, or other judicial reviews of gender recognition will appear again, So the real problem to be solved is to (create) a gender recognition law.”
In fact, no matter how the Immigration Department reforms, it is good to continue this action. It is to force the government to enact a gender recognition bill as soon as possible.
Christine
Zephyrus urged the "Gender Recognition Interdepartmental Working Group" to enact Hong Kong's "Gender Recognition Act" and formulate related administrative measures as soon as possible. He pointed out that "Quarks" will continue to strive to replace medical certificates with "self-declaration", which allows applicants to declare You can change your gender identity if you are a gender.
He also asked the government to clarify whether there is still a need to distinguish between "legal gender" and "administrative gender". He hopes that the government can use the gender on the ID card as the standard.
He also understands that trans men or trans women with different sexual organs may enter public toilets in the future, and we need to pay attention to the public's reaction. Therefore, "Quarks" will strengthen public education in the future to increase the acceptance of Hong Kong people.
postscript:
On the 10th day (February 16) after the transgender person won the case of changing the gender of the ID card, the Spanish Congress passed the transgender bill, which includes relaxing the requirements for changing the registered gender, and people aged 16 or above can apply without medical certificate Under this condition, you can apply to change the gender registered on your ID card.
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