Transgender activists win gender recognition appeal over ID cards

On 6 February 2023, the CFA gave judgment in favour of transgender activist Henry Tse and his co-appellant, “Q”. The court held that it is unconstitutional to require a person to undergo full sex reassignment surgery (“SRS”) before they can amend the gender marker on their Hong Kong identity card.

The court noted that medical procedures to assist gender transition exist on a spectrum with the irreversible SRS situated on the most invasive and extreme end. It carries post-operative risks and possible urologic complications. Overruling the lower courts, Hong Kong’s top court ruled that SRS is unnecessary for amending the marker.

The court held that the gender marker itself functions only as an “identifier” and does not carry legal recognition of the person’s sex or gender. Yet, to a person whose appearance does not match the marker on their ID card, each incident may feel like being forced to “come out” again and again. This engages the right to privacy.

This legal victory is encouraging, but it is also a very specific and limited one. The gender marker in itself does not confer any legal status. The judgment does not address questions such as whether a transgender person legally qualifies as a member of their identified gender.

In this case (and other recent cases involving LGBT rights), the Hong Kong judiciary engaged with international human rights precedents and overseas legal norms adopted in other jurisdictions in this case to safeguard individual rights. However, in other cases which concern political rights and where Beijing is set on imposing its will (such as in sedition and NSL cases), the courts have unfortunately failed to adhere to international standards. 

(This article originally appeared as an item in the Jan-Feb 2023 edition of our newsletter.)

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