Two transgender men have been granted permission to appeal to the Court of Final Appeal over a government policy that a transgender person can only change the gender on their Hong Kong identity card (HKID) if they undergo full sex reassignment surgery.

Henry Edward Tse and another transgender man, identified only as Q, challenged that the requirement of full sterilisation and genital reconstruction to change the gender on their HKID was in breach of Article 3 of the Hong Kong Bill of Rights.

Henry Edward Tse
Henry Edward Tse. Photo: Holmes Chan/HKFP.

Article 3 states that “[n]o one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

The activists also questioned whether the requirement was in breach of Article 14 of the Bill of Rights, which protects people’s right to privacy.

Tse and Q also questioned whether a previous ruling that the government’s policy was constitutional under Article 14 meant that it must be compatible with Article 3.

Court of Final Appeal
Court of Final Appeal. Photo: Kelly Ho/HKFP.

“We accept that it engages an important question of law of great general or public importance on the interplay between Article 3 and Article 14, which clearly merits the consideration and determination by the Court of Final Appeal,” a three-judge panel wrote in a five-page judgement published on Friday.

The same panel, which consisted of Chief Judge of the High Court Jeremy Poon, Vice President Susan Kwan and Justice of Appeal Aarif Barma, quashed an earlier bid by Tse and Q in January.

Full sex reassignment surgery

The legal challenge was first launched against the Commissioner of Registration by Q in 2015, with Tse and R, a third transgender men, launching their challenges in 2017, when the authorities refused to change the gender on their HKID cards.

Photo: karendesuyo, via Flickr.

All three transgender men have undergone mastectomies and received hormonal treatments, but did not want to surgically alter their genitalia or reproductive organs.

The initial judge Thomas Au ruled that a transgender person can only change the gender on their identity card if they underwent full sex reassignment surgery.

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Almond Li is a Hong Kong-based journalist who previously worked for Reuters and Happs TV as a freelancer, and as a reporter at Hong Kong International Business Channel, Citizen News and Commercial Radio Hong Kong. She earned her Masters in Journalism at the University of Southern California. She has an interest in LGBT+, mental health and environmental issues.