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Hong Kong’s top court rules surgery is not needed to register gender change

Transgender activist Henry Edward Tse talks to reporters outside the Court of Final Appeal in Hong Kong on Monday. (Peter Parks/AFP/Getty Images)
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HONG KONG — Hong Kong’s highest court handed down a landmark ruling Monday that will allow transgender people to amend their gender listing on their identity cards without undergoing full reassignment surgery.

Activists said the decision sets a positive tone for future debates on transgender rights in Hong Kong, but they called for gender recognition legislation as the crucial next step to protect their rights.

The Court of Final Appeal ruled that the government had breached the rights of two transgender people when it rejected their applications to have their gender listing changed on their ID cards because they had not undergone full reassignment surgery.

The case means that transgender people will now be able to access activities as simple as bank services or gender-segregated facilities such as gyms or toilets without having to worry about being humiliated, embarrassed or outed.

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The legal challenge was brought in 2019 by Henry Edward Tse and another person — who was identified only as “Q” — against the Commissioner of Registration after an official refused to review their gender status on their Hong Kong identity cards. The two transgender men have successfully amended their gender markers on their British passports.

In 2019 and 2022, two lower courts in Hong Kong rejected Q and Tse’s appeal, siding with the government that a transgender person is required to undergo full sex reassignment surgery to amend their gender marker.

The procedure for Q and Tse would include the removal of the uterus and ovaries and the construction of male genitalia, surgery that Tse said could be risky and lead to complications. The challenge asked to scrap such a prerequisite.

In a judgment released Monday afternoon, the court reasoned that the kind of “incongruence” that most commonly causes problems for transgender people arises from discordance “between the gender marker and a transgender person’s outward appearance,” and not the appearance of the “genital area.”

“The policy’s consequence is to place persons 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 their right to bodily integrity. Clearly this does not reflect a reasonable balance,” the court wrote.

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Hong Kong’s struggle over transgender rights has been primarily advanced through battles in court. In another landmark case, in 2013, the Court of Final Appeal decided that a transgender woman who had undergone full sex reassignment surgery was entitled to marry as her acquired gender. Following the case, the city launched a public consultation in 2017 to explore the possibilities of creating gender recognition laws, but no further action was taken.

Compared with other Asian countries, Hong Kong falls somewhere in the middle in terms of transgender rights, said Kelley Loper, director of the Master of Laws in Human Rights program at the University of Hong Kong.

India affirmed the right to gender self-determination in previous court cases; Taiwan in 2021 stripped the surgery requirement for legal gender change. Last year, China scrapped the conditions of psychiatric treatment and counseling and lowered the minimum age for trans youth to access gender reassignment surgery, according to the China Project.

Elsewhere, Argentina was the first among 30 countries that adopted gender recognition laws, allowing self-declaration of one’s perceived gender identity, without the need for medical evidence. In the United States, the State Department moved to allow a third gender option in passports in 2021, but anti-trans laws in individual states are increasing.

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Loper said that although Monday’s ruling is a significant step toward better protection of transgender people in Hong Kong, there is still a long way to go. She noted that the city still does not recognize nonbinary gender categories, unlike many other countries.

“Hopefully this decision will spark or restart discussion about gender recognition in Hong Kong and what sort of legislation may be needed,” she said.

In Hong Kong, half of transgender people report facing discrimination in their everyday lives, with more than 70 percent of respondents saying they had contemplated suicide, according to a 2021 study by the Sexualities Research Program at the Chinese University of Hong Kong.

Suen Yiu-tung, associate professor of gender studies, led the research and said that Monday’s court ruling dispelled many commonly held ideas about transgender people. But Suen called it a “limited victory” because it focused narrowly on the ID card as an administrative document and “does not involve dealing with legal gender recognition more widely.”

Pressure for change has grown over the past two years, from advocacy organizations such as Tse’s Transgender Equality in Hong Kong and Quarks.

Tse believes self-determination of one’s legal gender is a fundamental human right. Outside the court Monday, he said the ruling was “delayed justice.”

“We all dreamt that we will not be outed by our ID cards anymore, that we will no longer be rejected to cross borders and come back to Hong Kong, our home, and be stripped of our rights to marry and establish a family with the opposite sex. In every aspect of everyday life, our dignity has been damaged,” Tse said. “This case should never have happened in the first place.”