On 6 February 2023, the Court of Final Appeal (CFA) – Hong Kong’s highest court – ruled in favor of two transgender applicants seeking to change the gender marker on their identification cards.
Repost of: https://verfassungsblog.de/incremental-but-significant/
The CFA held that the Hong Kong government’s policy, which required applicants to undergo full sexual reassignment surgery (SRS) to change their gender markers, unconstitutionally infringed upon their right to privacy.
While obviously consequential – especially for the Region’s transgender community – the judgment is not a surprise or a departure from previous judicial decisions in this area. Rather, it is doctrinally and strategically consistent with the CFA’s LGBTQ jurisprudence, which proceeds incrementally and is highly attuned to the (ever-shrinking) political space in which Hong Kong courts operate.
Background and Ruling
A decade ago, the CFA issued a landmark judgment in W v Registrar of Marriages. It held that laws preventing a post-SRS transgender person from marrying her opposite gender partner violated her constitutional right to marry. Eschewing the normal proportionality analysis, the CFA held that this restriction violated “the very essence of the right”. In other words, it was such a serious rights violation that the government was not permitted to provide a justification. But the Court dampened the impact of this judgment through a creative remedy. It delayed the declaration of invalidity by 12 months to give the government a chance to amend the relevant laws to comply with the ruling. When the government failed to do so by the one-year deadline, the applicant (and those similarly situated) was permitted to marry opposite sex spouses.
The CFA further recommended a review of the existing legal framework on gender recognition. The government in response created The Inter-departmental Working Group (IWG) on Gender Recognition “to consider legislation and incidental administrative measures that may be required to protect the rights of transsexual persons in Hong Kong in all legal contexts and to make such recommendations for reform as may be appropriate.” Despite setting out a consultation paper in 2017, the IWG has still not published a final report and the government has not legislated to protect the rights of transgender persons.
It is within this context that the CFA issued its recent ruling in Q v Commissioner of Registration. The applicants, Henry Tse and Q, are female to male transgender persons. Both suffered from gender dysphoria for which they received physical and psychological medical treatment. Their medical treatment included, among other things, long-term hormone therapy and irreversible mastectomies. Neither was willing to undergo a complete SRS, which would have required more invasive surgery.
The applicants officially changed their gender markers and names in the United Kingdom (UK). As UK citizens, they received new British passports reflecting their male identities and chosen male forenames. Both applicants then formally changed their names on their Hong Kong Identity Cards (HKIDs). But when they sought to change the gender markers on their HKIDs, the Commissioner of Registration rejected their applications. The Commissioner’s decisions were based on the government’s policy guidelines, which required a full SRS – removal of the uterus and ovaries and construction of a penis – to effectuate a “sex change from female to male.”
Tse and Q challenged this policy on the grounds that it violated their right to privacy under Article 14 of Hong Kong’s Bill of Rights Ordinance. Specifically, they argued it was disproportionate for the government to require such invasive surgical procedures to change their gender markers. They provided medical evidence showing that these procedures were not necessary for many transgender persons (including the applicants), whose gender dysphoria had been effectively treated and who were already living in their chosen gender.
The CFA accepted the applicants’ claim that the policy encroached upon their right to privacy. But unlike the W judgment, where the CFA categorically ruled in favor of the applicant, the Court here followed its usual practice. It went through the proportionality analysis, which requires the government to justify its encroachment on fundamental rights in four steps. The first two steps require the government to establish legitimate aims and show a rational connection between those aims and the impugned policy. The applicants did not challenge the lower court’s ruling that the government in this case had a legitimate aim (“to establish a fair, clear, certain, and objective administrative guideline”) and that the policy was rationally connected thereto.
The judgment turned on the third step of the proportionality analysis: whether the restriction on applicants’ right to privacy was “no more than necessary” to achieve the legitimate aim. Here, the Commissioner of Registration advanced three justifications: first, a full SRS was the only workable, bright-line rule; second, administrative problems would arise due to the “incongruence between the external physical appearance” of the applicant and gender marker if a different rule was adopted; and third, hormonal and psychiatric treatments were not “absolutely irreversible” such that if applicants were to stop the treatment, they might become pregnant and give birth.
The CFA rejected all three justifications, relying heavily on comparative analysis. On the question of line-drawing, the Court cited the European Court of Human Rights judgment in AP, Garçon and Nicot v France to conclude that medical treatment “should not be prescribed merely to promote administrative convenience or clarity.” Rather, it should only be administered in the best interests of the patient. The CFA noted that many transgender persons in Hong Kong feel pressured to undergo intensive surgery to have their gender officially changed on the HKID. Such pressure, said the Court, is “objectionable in principle” and the adoption of the Commissioner’s bright-line rule therefore “weighs significantly against the Policy”.
The CFA proceeded to reject the Commissioner’s argument that it would be unfeasible to adopt a different rule. The Court referred to the IWG on Gender Recognition consultation paper, which listed more than twenty jurisdictions around the world that permit individuals to change the gender marker on identification documents upon the submission of medical evidence and documentation, but do not require complete SRS. The Court highlighted the UK’s Gender Recognition Act 2004 that requires applicants to prove that they had gender dysphoria, lived with the acquired gender for at least two years, intend to continue living in the acquired gender until death, and to meet certain evidentiary requirements. It further stressed that the applicants were not asking for a minimal regime of self-certification to change gender markers. Rather, their claim, with which the Court agreed, was that less intrusive lines could be drawn and administered effectively.
On “external incongruence”, the CFA determined that the government’s policy exacerbated this problem. As the Court noted, transgender persons regularly experience the “violation of their dignity and invasion of their privacy” when they are asked to produce identity cards on which the stated gender does not match their outward appearance. Thus, the Commissioner’s claim has it backwards: adopting a less stringent rule for changing gender markers would lessen, not worsen, the intrusion on the applicants’ right to privacy.
Finally, as to the claim that the applicants had not irreversibly changed their gender, the CFA relied on medical experts to find that post-transition pregnancy is exceptionally rare. Hence, it would be “wholly disproportionate” to require the applicants to undergo a full SRS simply to avoid this contingency.
For these reasons, the CFA ruled against the government on step 3 of the proportionality test. It was not, therefore, necessary to rule on step 4, which asks whether a fair balance has been struck between the policy’s societal benefits and the intrusion on individual rights. Nonetheless, the Court noted in obiter dicta that it would have ruled for the applicants here. It said, “[T]he societal benefits of the Policy are […] at best relatively slim”, while imposing an “unacceptably harsh burden on the individuals concerned.”
The CFA, therefore, ruled in favor of the applicants, holding that the current policy violates their right to privacy under Article 14 of the Bill of Rights Ordinance. The Court added that while it is “not for the Court to re-write the Commissioner’s policy”, there are “various models and approaches” that the government might consider in reformulating the policy to bring into compliance with Article 14. Given its failure to respond to similar prodding in the W judgment, the government is unlikely to make any far-reaching changes to the existing framework on gender recognition.
The CFA’s Progressive Recognition of LGBTQ Rights
The judgment in Q v Commissioner of Registration is a significant victory for Hong Kong’s transgender community and an important step towards greater legal recognition of LGBTQ rights in the Region. As in W, the CFA’s judgment was limited to the issues raised in the case. It did not, for instance, infer a broad right to gender recognition from constitutional rights to privacy and equality.
Such an incremental approach is in-keeping with the CFA’s past judgments in this area. Consider two judgments related to the recognition of same-sex marriage. In QT v Director of Immigration (2018), the CFA ruled that a same-sex spouse of a Hong Kong resident was eligible for a dependent visa as the couple were married in the UK. It was irrational, the Court held, to treat lawfully married same-sex couples differently from heterosexual married couples. A year later, in Leung Chun Kwong v Secretary of the Civil Service (2019), the Court extended medical and tax benefits to the same-sex partner of a civil servant. Again, the couple had been married abroad (in New Zealand) and the Court ruled that the government must treat married couples equally. However, it stopped short of declaring that same-sex couples have the right to marry in Hong Kong. Lower courts have, in fact, rejected judicial review applications seeking recognition of same-sex marriage under Hong Kong’s constitutional framework.
Still, the Q judgment may have broader implications. While W ruled that post-SRS transgender persons have the right to marry their opposite gender partners, it was silent as to the rights of individuals like Q and Tse, who received treatment for gender dysphoria but not a complete SRS. The Q judgment may broaden the right to marry to encompass them too. Meanwhile, a lower court case from 2018 involved a male-to-female transgender prisoner, who similarly had not undergone a full SRS. She alleged that male guards violated her right to equality by subjecting her to strip searches and other demeaning treatment. The lower court ruled against her, but the CFA in Q cited the facts of this case sympathetically to illustrate the challenges faced by transgender persons regardless of the gender listed on their identity cards. It is possible that, post-Q, courts may be more favorably disposed to such judicial review applications.
A Strategic Judgment in Turbulent Times
The CFA over the past decade or so has consistently, if narrowly, ruled to expand the constitutional rights of LGBTQ persons. This latest judgment fits within that trend and follows the W case in urging (but not requiring) the government to adopt comprehensive new laws or policies to remedy the remaining gaps. This suggests the Court has adopted a strategic approach. Hong Kong has a hybrid political system, which has become more authoritarian in recent years, especially since the passage of the National Security Law (NSL) in 2020. In this constrained environment, the CFA must tread carefully, especially when it rules on national security or other politically sensitive matters.
LGBTQ rights had proved to be safe terrain for the CFA to develop a progressive constitutional jurisprudence. But was this still true after the passage of the NSL? The Court’s judgment in Q v Commissioner of Registration – and the lack of political backlash so far – suggests that there is still room for it to proceed cautiously towards the fuller realization of these rights.
International and Comparative SOGIESC Law - Professor Andreas R Ziegler 