Hong Kong considering whether gender confirmation surgery should be prerequisite for legal gender change

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Hong Kong is considering whether transgender people who have not undergone full gender confirmation surgery should be entitled to the same legal recognition as those who have.

On February 28, Hong Kong’s Security Bureau proposed a bill to deny transgender people the right to marry someone of their birth-assigned sex if they decline to undergo complete gender confirmation surgery. Under current law, post-operative transgender people may change their gender marker on some legal documents, such as their passport, but not their birth certificate.

In 2013, the Court of Final Appeal ruled in favor of a transgender woman, referred to only as “W,” who wanted the right to marry her boyfriend. According to the South China Morning Post, a spokesperson for the Security Bureau said the bill was not in defiance of the ruling, because the court had “left open the question of whether transsexual persons who have undergone less extensive treatment might also qualify in law to be entitled to be included as a person in the reassigned sex.”

Currently, government policy dictates that only those who have completed a full medical transition may change their gender marker on legal documentation. If the bill passes, that policy would become law.

W’s lawyer, Michael Vidler, told the Post, “I am surprised they are doing this, because it flies in the face of indications by the city’s highest court as to how the matter should be dealt with.

“The judgment made it clear that Hong Kong’s policies should be reviewed with an aim to comply with international human-rights standards, and to use the British Gender Recognition Act as a model.”

He added that any such law would not have applied to his client, because W went through full gender confirmation surgery in 2008, but not every transgender person elects to undergo any kind of medical transition. Speaking to the Post, transgender man Kaspar Wan said, “I have heard of many cases of botched surgeries in Hong Kong. But despite the risks, transgender people feel pressured to get the surgery anyway. It amounts to forced sterilisation.”

In its decision, the Court of Final Appeal called the United Kingdom’s policies a “compelling model” for Hong Kong, and said that medical procedures as a prerequisite for legal recognition could have an “undesirable coercive effect on persons who would not otherwise be inclined to undergo the surgery.” In Britain, surgery is not required to change gender markers on legal documents. Since 2004, a Gender Recognition Panel made up of legal and medical experts have heard applications and decided whether to grant legal recognition on each individual case, without regard to the appearance of an applicant’s genitals.

Most countries that allow gender changes on legal documentation do not require partial or complete gender confirmation procedures for the purposes of recognition.

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