A Hong Kong transgender activist has launched a legal challenge over the government’s delay in issuing him an identity card matching his gender, despite securing a landmark victory at the top court.
Henry Edward Tse filed the bid at the High Court last Friday, alleging that by declining to process his application for a new identity card was discriminatory and a breach of his rights.
According to the bid, Tse said he had applied for the gender marker on his identity card to be amended to male last February. His application was made after the Court of Final Appeal ruled that a government policy barring transgender people from changing the gender on their identity cards if they had not undergone full sex reassignment surgery (SRS) was unconstitutional.
Tse’s application was rejected by the commissioner of registration – a role held by the head of the Immigration Department – who said the department could not process the application until the government had reviewed its policy based on the court’s ruling. Excerpts from a series of correspondence between Tse’s lawyers and the commissioner were included as part of Tse’s legal challenge.
According to the commissioner, the government would “strive to complete the review within reasonable time,” adding that authorities had to give the policy careful consideration as it would have wide implications across government departments.
Tse was later invited by the commissioner to attend a “without prejudice meeting” with government representatives. The term “without prejudice” means that both parties agree that the content of the meeting could not be used in court.
The next day, Tse wrote back asking the purpose of the meeting and who would attend. The commissioner repeated its invitation in a letter following but did not “satisfactorily” address the clarifications sought.
‘Inordinate delay’
Presently, only transgender people who have completed full SRS are able to change the gender on their Hong Kong identity cards. According to a written judgement handed down when Tse won his case, the procedure is considered highly invasive and “not medically required by many transgender persons.”
The Court of Final Appeal ruled that the government policy was discriminatory, requiring authorities to amend the rule.
In the bid, Tse’s lawyers said the commissioner’s failure to process the application one year on from the top court’s decision amounted to “maladministration and inordinate delay.”
The court had “established a right to have [Tse]’s acquired gender recognised,” his lawyers said, yet the authorities were delaying giving effect to his rights.
His lawyers suggested that the commissioner could justify an exception to Tse on the basis that he “was a successful litigant,” adding that authorities “cannot delay acting indefinitely” while it formulates the new policy.
Tse’s lawyers argued in the bid that their client dealt with “continuing experience[s] of humiliation” as a result of the authorities rejecting his application to change the gender marker on his identity card.
“[He] is experiencing constant anxiety and emotional distress on a daily basis due to the incongruence between his physical appearance and the gender identifier on his [identity card],” the bid read.
At immigration counters in Hong Kong, Tse has had to explain why he has not been able to change the gender on his identity card. Once, staff at a bank suspected that Tse was not the genuine account holder after he presented his identity card. The staff “underwent a lengthy investigation,” asking him to provide proof of his change of name and other evidence.
Court battles
After the top court handed down the decision to Tse last year, the activist called the ruling “delayed justice” and said the case should “never have happened” in the first place.
Activists have often criticised Hong Kong’s limited rights and protection for the LGBTQ community, seeing the judicial system as the only hope for reversing laws they say are rooted in discrimination.
Cases involving Hong Kong’s LGBTQ rights have often played out in the court of law, which has seen some landmark victories, including one in 2019 in which the top court sided with a gay civil servant applying for spousal benefits and tax assessment, and another in 2021 when the court granted equal parental rights for same-sex partners.
See also: LGBTQ rights in Hong Kong – breakthroughs and bitter court battles against discriminatory laws
Two cases relating to access to public housing and inheritance are still going through the legal system. While lower courts in 2020 and 2021 ruled in favour of same-sex couples who got married overseas, granting them equal access to the city’s public housing under two schemes and to the same inheritance rights as heterosexual couples, the government has sought to challenge those verdicts.
In February, the government was permitted to take the case to the city’s top court, giving it the chance to potentially overturn rulings earlier welcomed by activists.
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