Lawmakers in Ireland have just passed a bill that allows trans-gender people to choose their legal gender based on self-identification alone. Before the passage of the bill, trans-gender people in Ireland simply had no right to change their legal gender. Almost 10,000 km from Ireland, lawmakers in Hong Kong have decided that a cohabitant, including a same-sex cohabitant, can be the substitute decision maker in the medical context.
In a situation where the healthcare recipient is not able to make or communicate a medical choice himself/herself, a substitute decision maker is needed for such medical decision. In Clause 3(4)(f) of the original Electronic Health Record Sharing System Bill, a substitute decision maker includes an immediate family member who accompanies the healthcare recipient at the relevant time, which essentially excludes cohabitants (whether same-sex or not) from being a substitute decision maker.
In the amended version of the bill, a person residing with the healthcare recipient can also be a substitute decision maker if s/he accompanies the healthcare recipient at the relevant time. The amendment shows the government’s and the lawmakers’ good will to recognize relationship of cohabitation, especially same-sex cohabitation.
Down the years, legally speaking, same-sex couples can never form a family. More often than not, this has created troubles when a person is in a medical emergency but his/her same-sex partner, who is supposed to know the other half the best, is not able to make any important medical decision for his/her loved one. The amended bill addressed this problem and deserves applause in formally recognizing the rights of same-sex cohabitants in making medical decision for their partner.
But the law also shows a deep-rooted problem. The main reason why we need the words “a person residing with the healthcare recipient”, sarcastically, is exactly the root of the problem – our society has not yet recognized same sex marriage. Had same-sex marriage been allowed, it would have been sufficient to grant same-sex couples rights to make medical decisions on behalf of their partner. If we are serious about human rights and liberty, legalization of same-sex marriage should never be delayed.
Like Ireland, Hong Kong has been incrementally making improvements in LGBTQ rights. But unlike Ireland, which is the third European country after Denmark and Malta to legally recognize trans-gender people based on their self-determination alone, Hong Kong still has a long way to go on other LGBTQ issues such as same-sex marriage and the legal recognition of trans-gender people. While the legislature may clear some legal obstacles on improving LGBTQ rights, it is expected that, at the end of the day, defenders of LGBTQ rights will have to put contentious issues to the court for justice to be done.