Robyn Emerton, Faculty of Law, University of Hong Kong

Copyright Robyn Emerton to whom requests for reproduction and dissemination falling under copyright laws must be made

first uploaded 6/12/2002, minor revisions 21/2/03, 29/1/07 and 27/10/10

 

Note

This report discusses some of the main legal issues affecting Hong Kong based transsexuals (TSs) who have undergone sex reassignment or are in the process of doing so. It is a preliminary note, which will be expanded as I obtain more information about the issues which concern TSs in Hong Kong, further responses from the authorities about policies affecting Transgender people (TGs), and as I myself learn more about the law in this area (which is largely unchartered territory ⁽¹⁾ ).

 

Introduction

Although transsexualism is recognised in Hong Kong and the government provides funding for sex reassignments through the Gender Reassignment Programme, the law still treats a TS who has completed sex reassignment according to his or her biological sex. This leaves TSs in a precarious position and causes them a whole host of problems in their daily lives.

TSs have won a number of legal cases around the world in recent years: for example, key cases have been won before the European Court of Human Rights and the courts in New Zealand and Australia, granting TSs legal recognition of their post-operative sex, including for the purpose of civil status, marriage, discrimination in employment and pension rights.

 

Identity

During the "real life" test, TSs in the Gender Reassignment Programme are given a letter to carry from their doctor/ psychiatrist explaining their position. After sex reassignment surgery, TSs usually wish to change their personal documentation to reflect their new identity. This is easier in some cases than in others:

Name: anyone wanting to change their name can do this by deed poll at a District Administration Office. However, the name on one’s birth certificate stays the same (and cannot be altered). 

Identity Card: TSs who have had sex reassignment may apply to the Immigration Department to have their identity card changed ⁽²⁾ . (In fact, the Immigration Department advised us that TSs have a legal duty to inform the office if they have had sex reassignment) ⁽³⁾ . Usually, a medical certificate and a sworn statement by the TS will be required to confirm the change of sex. A new identity card will be issued, showing the TS’s new first name, sex (which is represented by the symbol "M" or "F") and photograph. 

According to the Director for Immigration, 27 applications were received from TSs wishing to amend the details on their identity cards between January 1994 and June 2002. 12 of these applications were from MtF TSs, and 15 from FtM TSs. All applications were approved, and replacement identity cards issued ⁽⁴⁾ . One TS told us that the staff at the Immigration Department were very professional in handling her change of ID card, and that she felt little awkwardness during the procedure.

Birth certificate: under Hong Kong law, TSs cannot have their birth certificates amended after sex reassignment, unless it can be shown that there was a clerical error or error of fact when their sex was recorded at birth ⁽⁵⁾ (this might perhaps be possible if a TS could prove that his/her anatomical sex was determined incorrectly at birth, although we do not know of any cases where this has been shown). This has very serious consequences for TSs – despite having a sex reassignment, TSs will continue to be treated as their original biological sex for all purposes in law, as will become clear below.

Other personal documentation: on receipt of their new ID card, TSs can change other personal documentation, such as their driving licence, credit cards and bank accounts.

 

Freedom to pursue careers in cross gender role

Many Hong Kong TSs speak of discrimination and harassment in the workplace.

Hong Kong law provides special protection against discrimination and harassment in employment (as well as education, access to public premises and the provision of goods, services and facilities), where the discrimination is on the grounds of sex or disability ⁽⁶⁾ . This is under the Sex Discrimination Ordinance and Disability Discrimination Ordinance, which both apply to discrimination by private bodies as well as discrimination by the government and public authorities. Additional protection against discrimination by the government and public authorities is also afforded under the Bill of Rights Ordinance', which covers "discrimination on any ground, such as ... sex ... or other status" ⁽⁷⁾ . However, there have been no cases testing whether the courts would interpret these laws to apply to discrimination against TSs. The key issues which would be likely to arise are discussed below. 

SDO: the main test of discrimination in the Sex Discrimination Ordinance (SDO) is whether a woman is treated less favourably than a man on the ground of her sex (and vice-versa) ⁽⁸⁾ ; which is obviously not the pertinent issue when a TS is discriminated against simply for being a transsexual. It would be hard for the courts to stretch the current wording in the Ordinance to cover discrimination against TSs. 

BORO: the Bill of Rights Ordinance (which binds the government and public authorities, but not private bodies) refers to discrimination more broadly, including on the grounds of "sex … or other status". There are cases from other jurisdictions which have given a broad interpretation to discrimination on the grounds of sex, so as to include discrimination against transsexuals ⁽⁹⁾ . These cases might be persuasive if the Hong Kong courts were ever asked to determine this issue, however they would not be binding. 

DDO: it is also possible that discrimination against a TS could amount to discrimination on the grounds of disability for the purposes of the Disability Discrimination Ordinance (DDO). This defines "disability" very broadly, to include "disorders that affect a person's thought processes and emotions" ⁽¹⁰⁾ . If "gender identity disorder" was found to come within this definition, then discrimination – and harassment – against TSs in the workplace would be unlawful. This would cover discrimination in the recruitment process as well as during employment, for example in relation to training opportunities, promotions and dismissals. A recent case, which involved a TS who was excommunicated from the church which she had worshipped at for many years after she underwent sex reassignment ⁽¹¹⁾ , was due to test this issue in the courts. However, the case settled before it reached the courts, so the question of whether discrimination against TSs would fall within the DDO remains unanswered. I am not aware of any precedents from any other countries on this point and whilst the DDO could provide some important legal protection for TSs, this line of argument does raise a dilemma, since it would involve arguing that transsexualism is a "disorder" and a "disability", with all the negative connotations that that brings with it.

 

Freedom to travel in cross gender role

Once a TG has received a new identity card, he or she can apply for a replacement Hong Kong SAR passport.

 

Freedom to marry according to gender identity

Under Hong Kong law, a marriage must be between a man and a woman ⁽¹²⁾. According to the Registrar of Births, Deaths and Marriages, this is determined by reference to a person’s original biological sex, as recorded in their birth certificate ⁽¹³⁾ . This means that TSs cannot legally marry according to their post-operative sex ⁽¹⁴⁾ , although, ironically (since same sex marriages are not permitted under Hong Kong law), a lesbian FtM or a gay MtF transsexual could marry someone of the same sex as their post-operative sex. 

It would in fact be possible for a marriage ceremony to take place in Hong Kong between a Hong Kong resident post-operative TS and his/her opposite sex partner. This is because Hong Kong residents need only show their identity cards, and not their birth certificates, in order to marry (and, as mentioned above, a post-operative TS can change the sex on his/her identity card). However, the marriage would be "null and void" in law ⁽¹⁵⁾ , that is, it would be treated as invalid from the start. In addition, a TS who marries someone in the full knowledge that the marriage is invalid under Hong Kong law commits an offence, which is punishable with up to 2 years’ imprisonment ⁽¹⁶⁾ .

 

Recognition of overseas marriages

Even where a Hong Kong citizen (whether the TS or non-TS partner) has contracted a valid marriage overseas, it seems that this marriage would not be legally recognised in Hong Kong. The courts have jurisdiction to hear cases regarding divorce, judicial separation etc. only in respect of "monogamous marriages" ⁽¹⁷⁾ , which are defined (if they took place outside Hong Kong) as marriages involving the "voluntary union for life of one man and one woman to the exclusion of all others" ⁽¹⁸⁾ . Given the discussion above, it can be expected that the words "man" and "woman" would be interpreted to refer to a TS’s original biological sex, with the effect that the Hong Kong courts would not have jurisdiction to hear cases concerning overseas marriages involving TSs. 

I am awaiting a response from the Registrar of Births, Deaths and Marriages to confirm the position, as well as from the Director of Immigration as to whether an overseas marriage involving TSs would be recognised for immigration purposes, where one of the parties to the marriage is not a Hong Kong citizen.

 

Freedom to raise children (either by previous relationship or by adoption)

There is no change in the legal status of TSs towards their children following sex reassignment. However, where the TS is separated or divorced from the other parent, it cannot be ruled out that their ex-partner might use the sex change as a reason for changing a custody or access order in relation to the children. 

It seems that a TS cannot adopt children in Hong Kong, whether those children have been put up for adoption, or are the children of his/her partner, unless he/she is married ⁽¹⁹⁾ . As discussed above, it is not possible for a TS to marry in their post-operative sex in Hong Kong, so that severely limits the opportunity for TSs to adopt after sex reassigment. I hope to confirm this with the Director of Social Welfare. 

I haven’t found out yet what the policy (if any) is towards artificial insemination of a woman married to a FtM transsexual, and would be grateful if anyone has any experience on this issue.

 

Other Legal Issues

There are a whole host of other legal issues which arise, some perhaps of more concern than others to the daily lives of TSs in Hong Kong. These include the following: 

• On entering into a new insurance contract (e.g. life insurance, third party insurance) after sex reassignment, a TS must disclose his/her previous sex, otherwise the contract (which is classified as a contract of "utmost faith") will be invalid. 
• Following sex reassignment, a TS may also need to notify the other party to any existing financial agreements (such as life insurance contracts, third party insurance contracts, mortgages, loans, guarantees etc.) of their change in sex, if the contract is worded in such a way that it will become invalid through non-disclosure of a change in personal circumstances. 
• There are certain offences in the Crimes Ordinance which are defined by reference to the sex of the parties, for example, the offence of rape comprises a man having unlawful intercourse with a woman ⁽²⁰⁾ . Although this has not been tested by the courts in Hong Kong, it is likely that a TS’s original biological sex would be used for the purposes of the criminal law, regardless of a sex reassignment (as has been the case in England) ⁽²¹⁾ . This would lead to a number of anomalies, whether the TS is the perpetrator or the victim of the crime.

 

Conclusion

There is obviously a long way to go in order to obtain legal recognition of the new sexual identity of post-operative TSs in Hong Kong, and with it, respect for TSs’ dignity, freedom and privacy. With the growing international trend towards improving TSs’ legal status, the time may now be ripe to raise the issue in Hong Kong.

 

Endnotes

(1) A brief summary of legal problems facing TSs is included in Ng, Wong, Chow et al "Transsexualism: Service and Problems in Hong Kong", Hong Kong Practitioner 11:12 (1989) 591, 599-600. This is the only published work I have been able to identify which deals with legal issues facing TSs in Hong Kong. 

(2) This is under the Registration of Persons Regulations (Cap 177A Laws of Hong Kong), Regulation 14(1)(a). 

(3) Registration of Persons Regulations, Regulation 18. 

(4) Letter to the author from the Director of Immigration, 7 August 2002. 

(5) Births and Deaths Registration Ordinance (Cap 184), section 27. 

(6) As well as family status, under the Family Status Discrimination Ordinance, although this is not relevant in the current context. 

(7) Article 22. 

(8) Sections 5 and 6. 

(9) For example, in the case of P v S and Cornwall County Council Case C-13/94 [1996] IRLR 347, which came before the European Court of Justice in 1996, it was held that the EC Equal Treatment Directive, which prohibits discrimination in employment "on the grounds of sex", should be interpreted broadly to include discrimination against transsexuals who are undergoing or have undergone sex reassignment surgery. 

(10) Section 2 of the Disability Discrimination Ordinance, Cap 487 Laws of Hong Kong. 

(11) "Sex-change Mormon sues church", South China Morning Post, 16 March 2001, p.3. 

(12) Marriage Ordinance (Cap 181), section 40. 

(13) Letter to the author, dated 7 August 2002. 

(14) This follows the UK case of Corbett v Corbett [1970] 2 All ER 33, which is technically binding on the Hong Kong courts, notwithstanding the fact that it has effectively been overruled by the landmark decision of the European Court of Human Rights in Christine Goodwin and I v the United Kingdom Government, No 28957/95 (1995) ECHR, which was handed down on 11 July 2002. In that case, the European Court held that the UK government’s failure to recognise the legal status of Ms Goodwin’s post-operative sex – including for the purposes of marriage – was a violation of the European Convention on Human Rights. 

(15) Section 20(1)(d) of the Matrimonial Causes Ordinance (Cap 179) states that a marriage will be void "if at the time of marriage, the parties are not respectively male and female". The Hong Kong courts would also be bound to follow the UK case of Corbett v Corbett [1970] 2 All ER 33, which held that a marriage between a TG who had undergone surgery before going through a ceremony of marriage with a male petitioner, was invalid, since the parties were biologically not of the opposite sex. The position was confirmed in the more recent UK case of Bellinger v Bellinger [2001] EWCA Civ 1140. 

(16) Marriage Ordinance, section 33. This covers circumstances in which a person "knowingly and wilfully" celebrates a marriage, knowing that he/she is not legally competent to marry. 

(17) Matrimonial Causes Ordinance (Cap 179), section 9. 

(18) Matrimonial Causes Ordinance, section 2. 

(19) See Adoption Ordinance (Cap 290), section 4. 

(20) Crimes Ordinance (Cap 200), section 118. 

(21) R v Tan and others (1983) 1 QB 1053.