By Jerome Yau, Pink Alliance
The recent High Court judgement in the Henry Tse, Q and R cases is flawed, and its rationale perplexing. Disturbingly, the court brushed aside the Yogyakarta Principles as “aspirational statements.” The principles, cited by numerous national governments and court judgements, are considered international human rights norms relating to sexual orientation and gender identity.
Legal arguments aside, it doesn’t take a rocket scientist to figure out the existing policy in Hong Kong concerning transgender people is outdated and inhumane. It requires a transgender person to undergo sex reassignment surgery (SRS) in order to obtain a new ID card that contains the new gender marker.
Effectively, this coerces the concerned individual to undergo a complex medical procedure of questionable value for the sake of administrative expediency.
Our understanding of human sexuality evolves as new information comes to light. It wasn’t long ago that transgenderism was considered a psychiatric condition that required medical intervention. But in June 2018, the World Health Organization announced that being transgender would no longer be classified as a mental illness.
Essentially, the world’s foremost authority on health was telling us that we should stop treating transgenderism as an illness. This came as no surprise as it aligned with the contemporary understanding that sex and gender are two distinct concepts, and they go into the heart of the issue of gender recognition.
Sex is an innate biological feature, whereas gender is a social construct. For most people, sex and gender are in harmony with each other, but for those who face disharmony, the best practice is to respect the person’s bodily autonomy and allow him or her to live a life that conforms to the chosen gender without unnecessary medical interventions.
For example, SRS is helpful to some but offers no therapeutic value to others. As such, SRS shouldn’t be a prerequisite for the concerned individual to obtain a new gender marker on official documents. Otherwise, SRS becomes forced sterilisation, and according to leading human rights bodies and seven UN agencies, forced sterilization requirements “run counter to respect for bodily integrity, self-determination and human dignity.”
The Hong Kong government has defended its policy by saying it obtains free and informed consent from the transgender individuals. This is a naked attempt to gloss over the fact that for those who don’t want to undergo SRS, their lives will be kept hanging in the balance because of issues arising from conflicts between their gender identity and the gender marker on their documents. In short, the policy doesn’t offer transgender individuals a genuine choice.
It goes without saying that a concerned individual is in the best position to ascertain his or her own gender identity. To ignore this and place an undue emphasis on objectivity and societal interest is anathema to the very notion of respecting and protecting one’s human rights.
The judgement should be overturned by the appellate court, and the government should say no to scaremongering and show leadership on the gender recognition issue.
Jerome Yau is policy director at Pink Alliance, a local LGBT organisation.
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