Transgender Rights: Hong Kong's New ID Policy in Violation of the Right to Bodily Integrity and Privacy.

The Hong Kong Court of Final Appeal deemed mandatory gender-affirming surgery unconstitutional, but updated regulations still require prerequisites, causing transgender rights concerns and ongoing legal challenges.

Transgender Rights: Hong Kong's New ID Policy in Violation of the Right to Bodily Integrity and Privacy.
A person holding a pink and blue flag next to a building by Ev, via Unsplash, April 14th 2023

23-04-2024

Marina Sáenz

East Asia Researcher,

Global Human Rights Defence.

 

In a significant victory for the LGBTQIA+ community, the Hong Kong Court of Final Appeal declared in February 2023 that mandating complete gender-affirming surgery (SRS) prior to altering the “gender entry” on an individual’s identity card was unconstitutional. However, the unveiling of the Government’s updated regulations on April 4th, 2024, indicates that many of the previous surgical prerequisites remain intact, raising concerns about the protection of transgender rights.

In accordance with recent governmental regulations, individuals who have not undergone comprehensive SRS may qualify to petition for a modification of the gender marker on their identity card, provided they adhere to requisite surgical interventions targeting the alteration of sexual characteristics. Specifically, for individuals transitioning from female to male, adherence to breast removal surgery is obligatory, whereas those transitioning from male to female must undergo penis and testes removal procedures to satisfy the prerequisites for the application procedure. Additionally, the Government stipulates that applicants must affirm their diagnosis of gender dysphoria, attest to living as the gender opposite to their assigned sex for a minimum duration of two years, and commit to maintaining this identity indefinitely. Furthermore, they must provide evidence of undergoing hormonal therapy for at least two years, with a commitment to ongoing treatment. Additionally, applicants may be subject to requests for blood test reports by the commissioner for immigration to verify their hormonal status through random checks.

The policy revision was announced two weeks subsequent to transgender activist Henry Tse's legal challenge against the Government’s delay in implementing the Court of Final Appeal decision in February 2023. Tse, alongside another appellant identified as “Q,” originally brought this case to the Court of Final Appeal. Both had undergone extensive medical and surgical treatments, including hormonal treatments and breast removal. Despite this, the registrar still required them to undergo full sex reassignment surgery, including the removal of ovaries, a requirement they argued was unnecessary and highly invasive. The judicial panel unanimously supported their stance, emphasising that “the policy’s consequence is to place individuals 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 upon their right to bodily integrity”.

 

While the abolition of the SRS policy marks progress for the transgender community in Hong Kong, it is crucial to recognise that the Government's continued insistence on requiring invasive surgeries constitutes a severe violation of their fundamental human rights, particularly the right to bodily integrity. This right asserts that individuals have the autonomy to make decisions about their bodies without undue interference. This is enshrined in articles 3, 5, and 12 of the Universal Declaration of Human Rights (UDHR), and articles 7 and 17 of the International Covenant on Civil and Political Rights (ICCPR). Requiring transgender individuals to undergo highly invasive procedures, such as penis, testes, and breast removal, infringes upon this autonomy by coercing them into altering their bodies in ways that may not align with their own desires or medical needs. Moreover, the requirement to provide random blood tests represents an encroachment upon the right to privacy, explicitly safeguarded under article 14 of the Hong Kong Bill of Rights Ordinance, and article 12 of the UDHR, to which Hong Kong has ratified through China. By subjecting transgender individuals to arbitrary and unwarranted intrusion into their bodily integrity without concrete justification, the government undermines the core principles of privacy protection. These tests not only violate individuals' autonomy over their personal health information but also perpetuate a climate of unwarranted surveillance and discrimination. 

 

Instances of these violations within the transgender community have been acknowledged by numerous regional Human Rights Courts. The European Court of Human Rights (ECtHR) ruled for the first time in 1992 in B. v France that there had been a violation of article 8 (right to respect for private and family life) of the European Convention of Human Rights in a case concerning the recognition of transsexuals. Since then, the ECtHR has recognised in more than 10 different cases the struggles faced by the transgender community in relation to their right to respect for private and family life. Furthermore, in a historic ruling in 2018, the Inter-American Court of Human Rights affirmed the right to update official documents to conform to a person’s gender identity, asserting its protection under the American Convention on Human Rights. This landmark decision mandated states to establish domestic legal gender recognition procedures, marking a significant step forward in the protection of transgender rights.

 

In light of these developments, it is evident that while strides have been made in recognising the rights of the transgender community in Hong Kong, significant challenges remain. The persistence of policies that impose unequal and invasive requirements, coupled with the imposition of random blood tests, underscores the ongoing struggle for genuine equality and respect for transgender individuals. As advocates continue to push for meaningful reform, it is essential for policymakers to prioritise the protection of fundamental human rights, including the right to bodily integrity and privacy. Only through concerted efforts to address these concerns can Hong Kong truly advance towards a society that embraces diversity, equality, and dignity for all its citizens.

 

Sources and further reading:

AFP. April 4 2024. Hong Kong’s new ID card policy on gender markers slammed for ‘violating right to bodily integrity’ of trans people. Hong Kong Free Press. Accessed on April 30th, 2024. https://hongkongfp.com/2024/04/04/hong-kongs-new-id-card-policy-on-gender-markers-slammed-for-violating-right-to-bodily-integrity-of-trans-people/

Jessie Pang. February 6 2023. Hong Kong court makes landmark ruling protecting transgender rights. Reuters. Accessed on April 30th, 2024. https://www.reuters.com/world/asia-pacific/hong-kong-court-makes-landmark-ruling-protecting-transgender-rights-2023-02-06/

Hong Kong Bill of Rights Ordinance. Accessed on April 30th, 2024.  https://www.elegislation.gov.hk/hk/cap383

Q v. Commissioner of Registration (FACV8/2022). Accessed on April 30th, 2024. https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=150361&currpage=T

Tse Henry Edward v. Commissioner of Registration (FACV9/2022). Accessed on April 30th, 2024.  https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=150362&currpage=T

European Court of Human Rights, 2023. Gender Identity Issues. Accessed on April 30th, 2024. https://www.echr.coe.int/documents/d/echr/fs_gender_identity_eng