Q v. Commissioner of Registration
Read the full judgment text of HCAL 229/2015 on BabelCite. This High Court CFI judgment was delivered on 1 February 2019.
1. This is the rolled-up hearing of these three judicial review applications. By them, the applicants seek to challenge the policy adopted by the Commissioner of Registration (“the Commissioner”) relating an application made by a female-to-male transgender person to change the gender entry stated in the identity card (“ID card”) from female to male.
Cited by 1 case · Cites 6 cases
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HCAL 229/2015, 154 & 189/2017 [2019] HKCFI 295 HCAL 229/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 229 OF 2015 _______________ BETWEEN
_______________ and HCAL 154/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 154 OF 2017 _______________ BETWEEN
_______________ and HCAL 189/2017 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 189 OF 2017 _______________ BETWEEN
_______________ (heard together)
_______________ J U D G M E N T _______________ A. INTRODUCTION 1.This is the rolled-up hearing of these three judicial review applications. By them, the applicants seek to challenge the policy adopted by the Commissioner of Registration (“the Commissioner”) relating an application made by a female-to-male transgender person to change the gender entry stated in the identity card (“ID card”) from female to male. 2.All three applicants in these respective judicial review applications are female-to-male (“FtM”) transgender persons. Each of them is born as biological female with female biological features, attributes, sex and reproductive organs. 3.However, from certain stage of their respective lives, each of them has since psychologically and mentally regarded and associated himself[1] as a male. As a result, each has since (a) undergone mastectomy (ie, having the breasts removed); (b) been receiving hormonal treatments (as a result of which each has predominantly male outward attributes and features, such as having a more masculine feature, more angled face, more face and body hair growth, a deeper voice, and the disappearance of the Adam’s apple); and (c) lived a life as a male. 4.They have respectively applied to the Commissioner asking to change the sex (or gender) entry stated in their respective Hong Kong ID cards from female to male (as their chosen gender).[2] 5.The Commissioner has adopted a policy (“the Policy”)[3] in regard of an application by transgender person to change the gender entry on the ID card. Relevantly, under the Policy, the applicant has to provide proof that the applicant (a) has gone through different forms of treatments by professional psychiatrists and clinical psychologist (including psychotherapy, hormonal treatment and real-life experience of the chosen gender role for a period of time); and (b) has completed the relevant sex reassignment surgery (“SRS”). A complete SRS generally includes the removal of original genital organs (which once completed, the person becomes permanently sterile) and construction of genital organs of the opposite sex, which may be staged[4]. 6.In particular, it is stated in the Policy that in relation to a FtM transgender application, to show that the relevant SRS is completed, the applicant has to meet the requirements (“the Challenged Requirements”) of having (a) the removal of the uterus and ovaries; and (b) the construction of a penis or some form of a penis. 7.There is however an exception (“the Exception”) to the Challenged Requirements under the Policy: an applicant is not required to complete the relevant SRS if he or she can prove that he or she cannot undergo the surgical procedures because of medical reasons. 8.In the present cases, the three applicants have not undergone the relevant SRS, in that they have not had their uteri and ovaries removed and the construction of a penis or some form of a penis. They therefore do not satisfy the Challenged Requirements. They also do not fall within the Exception since they do not undergo the relevant SRS only because they do not wish to do so. It is not that they could not undergo it because medically they cannot do it. 9.As a result, all their applications have been refused by the Commissioner as they failed to meet the Challenged Requirements under the Policy.[5] 10.The applicants now challenge the Commissioner’s respective refusal decisions (“the Decisions”) and the Policy (specifically the Challenged Requirements) to be unlawful on the grounds that:
11.The applicants are represented by Mr Hectar Pun SC (leading Mr Earl Deng). The Commissioner, opposing the applications, are represented by Mr Stewart Wong SC (leading Ms Grace Chow and Ms Bonnie Cheng). 12.I will now turn to consider the grounds of judicial review. B. GROUNDS OF JUDICIAL REVIEW B1. Ground 1 13.Under this ground, Mr Pun submits that the Challenged Requirements violate BOR 14 (incorporating Article 17 of the ICCPR[6]), which provides as follows:
14.In relation to the protected privacy rights under BOR 14, it is common ground between Mr Pun and Mr Wong that:
15.In light of the above common grounds, Mr Wong also fairly accepts that the applicants’ BOR 14 right is engaged in the present cases, in that the applicants’ right to privacy is restricted by reason of the Challenged Requirements. In the premises, it is for the Commissioner to justify the restrictions. 16.Mr Wong submits that the Challenged Requirements clearly satisfy the proportionality test. I will now turn to look at the contentions advanced by the parties under the proportionality test. B1.1 Step 1 – Legitimate aim 17.First, Mr Wong says the Challenged Requirements are for the legitimate aim (“the Aim”) of establishing a fair, clear, consistent, certain, and objective administrative guideline which can be practically applied by registration officers to decide whose applications for change of gender entry on ID cards are to be accepted and whose are not[7]. This, submitted by Mr Wong, is clearly for a legitimate purpose. 18.Mr Pun fairly accepts that there should be a workable, efficient, and clear administrative guideline to enable the Commissioner to determine such applications. However, he submits that the Aim is not a legitimate one because it is wrong for the Commissioner seeking to adopt a one-size-fits-all standard or criteria (or draw a bright line) to determine these applications. This is so because:
19.With respect to Mr Pun, I am unable to accept his submissions. 20.As pointed out by Mr Wong, Mr Pun’s submissions are premised on what is the guideline in medicine as to whether and when a transgender person has fully transitioned to the chosen gender. This is effectively a subjective or self-determined test based principally on the person’s own psychological experience and appreciation[13]. 21.However, the change of the gender entry on the ID card is not solely a medical issue, but also a legal issue. 22.In this respect, as rightly emphasized by Mr Wong, the change of gender entry stated in the ID card does not only concern the private right of the transgender person but also the wider public interest. The gender entry stated on the ID card bears significance on day to day life in different areas. These include areas such as emergency responses, law enforcement, social and residential services operated or subsidized by the Social Welfare Department, social hygiene services provided by the Department of Health, in-patient services provided by the Hospital Authority, access to sex-specific public toilets, sports, and enrolment in single-sex schools. 23.This is so as operators and frontline staff providing or operating the above mentioned services or facilities will invariably rely on the ID cards to ascertain the gender of the card holder for the purpose of assigning or providing services which are gender-specific. Hence, significant impact and practical problems affecting the other users from members of the public would arise if the transgender person’s gender entry on the ID card does not correspond with the physical appearances, in particular the sex organs. 24.In this respect, Ms Wong Him Yu for the Commissioner has provided an account of the practical difficulties that may arise in the above areas in her affirmation. To illustrate the nature and extent of these practical problems, suffice for this court to quote a few notable examples set out in the affirmation as below:
25.The approval for the change of gender entry of an ID card therefore does not only concern with the card holder’s private right, but also public interests. As a result, in deciding whether to approve a transgender person’s application for a change of the gender entry on the ID card, the Commissioner has to engage in a balancing exercise against the said private and public interest. As said by Hartmann J (as he then was) in Democratic Party, at paragraph 59, “respect for an individual’s privacy will be narrower when it is brought in context with public life or is in conflict with other protected interests.” 26.In the premises, I accept that it must be legitimate for (and indeed incumbent on) the Commissioner to adopt a standard which is objective (to maintain consistency and certainty) and fair to the general public (in addressing their concern). 27.As rightly submitted by Mr Wong, this is also consistent with and echoed by the observation of Lord Nicholls in Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 AC 467 at paragraphs 28 - 33 and 39 - 43 (in the context of discussing the legal recognition of a person as a male or female):
28.I therefore accept that the Aim is a legitimate one. B1.2 Step 2 – Are the Challenged Requirements rationally connected to the Aim 29.It must be obvious that the Challenged Requirements are rationally connected to achieving the Aim. I do not think Mr Pun seriously challenges this step. 30.I will therefore turn to look at step 3. B1.3 Step 3 – Whether the restrictions are proportionate 31.This step forms the principal battlefield between the parties under the 1st Ground. 32.First, Mr Wong argues that the court in assessing the proportionality test under this step should accord a wide margin of appreciation to the Commissioner’s drawing of the bright line. It should only find the Challenged Requirements not staying step 3 if it is “manifestly without foundation” (instead of the test of “no more than necessary”). Mr Wong says the court should adopt the wide margin of appreciation because:
33.On the other hand, Mr Pun relies on the recent judgment of the European Court of Human Rights (“the ECHR”) in AP v France (Application Nos 79885/12, 52471/13 and 52596/13, 6 April 2017)[14] to say that only a narrow margin of appreciation should be given to the Commissioner in a matter like the present. 34.In AP, the applicants are pre-operative male-to-female transgender persons in France who sought to change the gender entry stated in their respective birth certificates from their assigned biological gender to their respective chosen gender. For that purpose, they respectively asked the courts to declare that their gender should be female (their chosen gender) instead of male. The French courts decided that under French substantive law, an applicant needed to demonstrate the “irreversible nature of the transformation of [the] appearance” which effectively would require the applicant to be subjected to the realization of a sterilizing operation or treatment. Given that the applicants’ had not undergone any such operation (such as SRS) or treatment which would result in the irreversible nature of the transformation, the courts dismissed their applications. 35.The applicants took the matters to the ECHR challenging the said requirement. They contended that it violated, among others, their right to privacy protected under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), and the right not to be subjected to torture, inhuman or degrading treatment protected under Article 3 of the Convention.[15] 36.The ECHR (by a majority of 6 to 1[16]) allowed the applicants’ challenge. It concluded that the French substantive law subjected recognition of the sexual identity of transgender persons to the realization of a sterilizing operation or a treatment, which by its nature and its intensity could lead to a very strong probability of sterility, violated the applicants’ right to privacy (in particular the right to physical integrity) under Article 8 of the Convention and also the right not to subjected to torture, inhuman or degrading treatment under Article 3 of the Convention. 37.When argued before the court, the French government, like the Commissioner in the present cases, contended that the ECHR should give a wide margin of appreciation to its Member States in a question like this, as there was no consensus among the Member States as to what should be the relevant requirements for recognising a transgender’s right to change his or her gender entry stated in the identification paper or document. This was particularly so when in fact at the material time, there were less Member States which did not require any surgical or hormonal treatment for recognising such a change than those that required it[17]. 38.In relation to this issue, the ECHR recognised that in general, it should give a broad margin of appreciation when no consensus existed among the Member States on the relative significance of the interest at stake or on the best means of protecting them. It was also equally broad in general if the Member State had to strike a balance between competing private interests and public interests or between different rights protected by the Convention, which were in conflict[18]. 39.However, the ECHR went on to conclude that the Member State should only enjoy a narrow margin of appreciation in this matter. It explained this at paragraphs 122 - 125 of the judgment as follows:
40.Hence, as summarized in the “Information Note” on AP published by the ECHR[19], the court decided to give a narrow margin to the member state on this matter because:
41.Mr Wong however urges this court not to follow the ECHR’s ruling in adopting a wide margin of appreciation. Leading counsel submits the majority reasons are unconvincing and wrong because:
42.These contentions are in substantive in line with the dissenting judgment of Judge Ranzoni at paragraphs 11 - 25. The learned judge decided to accord a wider margin of appreciation to the member state on an issue like this. Having accorded the French Government such margin of appreciation, the learned dissenting Judge ruled in the French Government’s favour and dismissed the applicants’ application. 43.Notwithstanding Mr Wong’s forceful submissions, I am of the view that a narrow margin of appreciation should be given to the Commissioner in the present matter. I will explain why. 44.First, the lack of a consensus (internationally or otherwise) as to whether the completion of the relevant SRS should be required for recognising the change of the gender entry on the identification documents is irrelevant to the question of whether the applicants’ protected human rights is violated and thus the question of the constitutionality of the Challenged Requirements in Hong Kong. Cf: the Court of Final Appeal’s observations in W v Registrar of Marriages (2013) 16 HKCRAR 112 at paragraphs 114 - 116. As emphasized by the Court of Final Appeal, the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights. 45.Second, one therefore starts with first principles on the extent of margin of appreciation that should be accorded to the relevant decision-making authority when faced with a constitutionality challenge. This has been canvassed in Fok Chun Wa at paragraphs 76 - 79 as follows:
46.The right to gender identification and, even more fundamentally, physical integrity are essential fundamental human right and core values.[20] Given this core fundamental right, applying the approach laid down in Fok Chun Wa, even though the present issue also concerns public and social interests as emphasized by Mr Wong, the court should still be vigilant in scrutinizing whether the Challenged Requirements disproportionately infringe the applicants’ right to privacy. 47.The court therefore should accord a narrow margin of appreciation to the Commissioner. In other words, the court would assess whether the Challenged Requirements are restrictions that are no more than necessary to achieve the Aim. This is what I would next turn to. 48.As mentioned above, the right to physical integrity is a fundamental and essential human right[21]. 49.Hence, any restriction and infringement of this right must be scrutinized vigilantly by the court. 50.The removal of the uterus and ovaries by way of surgery by itself is a serious and significant infringement of the person’s physical integrity. This is a fortiori so when the procedure is not required to be carried out if medical reasons are to be considered alone, and the person does not wish to do it. 51.Hence, there must be very strong and cogent reasons or grounds to justify the infringement for that to be regarded as lawful and complaint with BOR 14. 52.Mr Wong says that the restriction of the privacy right is a proportionate one since it is the only workable model to achieve the Aim to have a fair, clear, consistent, certain, and objective administrative guideline. 53.I agree and will explain why. 54.First, as pointed out by Mr Wong, precisely given the medical views that a transgender person could effectively be regarded as having “transitioned” to the chosen gender based on that person’s subjective feeling and self-perception, the completion of the SRS procedure is the only objectively ascertainable criterion that can be adopted administratively to arrive at certainty and consistency. In this respect, Mr Wong reminds the court that it can legitimately take into account the clarity of the line and the administrative convenience of implementing the policy or scheme thereunder in determining whether proportionality is satisfied in step 3[22]. 55.Moreover, it is only with this objective criterion that will result in striking a “fair” balance between the private right of the transgender person and the wider public interest given the many significant practical difficulties that may arise if a pre-operative transgender is given an ID card stating his chosen gender instead of the assigned gender. As reiterated by Mr Wong, it is only by having completed the SRS that most if not all of these practical difficulties impacted on the public interest can be addressed, while at the same time the transgender person’s chosen gender characteristics and features (and hence identification) will not be in any way reduced or restricted. 56.To further illustrate this point, Mr Wong submits that the evidence shows importantly that a pre-operative FtM transgender person is still biologically fertile and thus capable of becoming pregnant and bearing a child, if and when he wants to do so and stops the hormonal treatment[23]. Significant social and practicable problems will arise when the person does become pregnant while the ID card states that the person is a male. 57.As highlighted by Mr Wong by way of example, if a FtM pre-operative transsexual is allowed to change the gender on the ID card to male, but then he stops the hormonal treatment and recovers fertility and gets pregnant, what are the implications of the holder of a male ID card giving birth? How does that person go about taking care of the baby, especially when he needs to show his ID card (for example to apply for schools): is he the mother (which she really is) or the father (which the ID card appears to suggest that he is)? 58.As submitted by Mr Wong, the reversibility of what has been done is a factor referred to by Ma CJ and Ribeiro PJ in W at paragraph 131 suggesting in favour of a line drawn at surgery in the context of transsexual marriage. 59.In the premises, unless and until the society as a whole is readily equipped with the mentality and facilities that could be catered for transgender persons who, while still having intact the biological sex and reproductive organs of the assigned gender, have their chosen gender stated in the identification documents and papers, I agree that the only practical and workable administrative guidelines that would also fairly take into account the public interests as affected is to require the completion of SRS for a change of gender stated on the ID card. 60.Seeking to rebut that the completion of SRS is the only workable and objective guideline, Mr Pun has suggested by way of examples a number of what he says to be equally workable models as adopted by some countries which do not require the completion of SRS as the requirement for changing the gender entry in the identification documents[24]. These models principally require the transgender person to make a self-declaration (statutory or otherwise) that he or she has settled and solemn intention of living in the preferred gender for the rest of his or her life, understands the consequences of the application and makes the application out of his or her free will. This self-declaration may or may not require the backing of a further declaration that the applicant has undergone “real life test” for a required period, say six months, and a medical certificate confirming that the applicant has received appropriate clinical therapy for gender incongruence and has transitioned to his or her preferred gender. 61.However, in my view, these suggested models are in nature and in substance self-definition models. They are all premised on the person’s subjective perception as to whether he or she has fully transitioned to the chosen gender. 62.As submitted by Mr Wong, which I accept, while it is understandable that, from a medical or clinical point of view, one is to give the best therapy to each individual to the extent as requested or required by that individual with his or her full informed consent, this in fact illustrates the problem. Each individual has different needs and requirements and goes to different extents in his or her therapy of the GID[25]. 63.Hence, to say that the gender transformation is completed when the individual has done all that he or she desires is to say that there is no objective criterion at all. This is tantamount to self-definition which Lord Nicholls has demonstrated in Bellinger to be unacceptable from a legal point of view. Leaving it up to the individual cannot be a workable rule as it leads to uncertainty and arbitrariness, and in effect there would be no rule as a change of gender entry can be made simply by the person declaring so. Take the example of the present cases. Even though the applicants have each undergone some medical treatment (such as mastectomy and hormonal treatment), their arguments, and the opinion of their experts, amount to a submission that an individual should be recognised as being of the gender opposite to the anatomical sex, at least for the purpose of changing the sex entry on the ID card, whenever the individual feels that he or she has done enough, or even when nothing is in fact done. No objective, publicly available criteria are needed or suggested. If this is adopted, then for those with GID, to the extent that nothing less than full SRS will do, the line is drawn at full SRS. For those like the applicants, the line is drawn differently as are those who in fact stop at an even earlier stage. This cannot be right. 64.Mr Pun further contends that addressing these purported practical difficulties should not be matters relevant to the Commissioner’s consideration, as they have nothing to do with whether or not the ID card gender entry should be amended. 65.I am also unable to agree. As explained above, other members and institutions of the public will have to rely on the ID card to ascertain the gender of the card holder to manage or organise related activities which are gender specific. In the premises, the Commissioner as the issuing authority has to be concerned with the interests of others who are to rely on the information provided in the ID card. 66.In support of Ground 1, Mr Pun has also relied on a number of authorities to aid his contentions that international jurisprudence supports the proposition that there should not be a strict requirement to have SRS before a transgender could change the gender information in his or her identification documents. I agree with Mr Wong that they are distinguishable and therefore do not have material impact on my above reasons. I will deal with them briefly as follows. 67.The applicants understandably rely principally on AP in support of the contentions that the Challenged Requirements disproportionately violate the right to privacy, in particular the right to physical integrity. The majority’s reasons in that conclusion are however distinguishable:
68.The applicants also rely on Michael v Registrar-General of Births, Deaths and Marriages (2008) 27 FRNZ 58. In that case, Michael, a pre-operative FtM transsexual asked the court for a declaration under section 28 of the New Zealand Births, Deaths and Marriages Registration Act 1995 that it was appropriate for his birth certificate to contain the information that he was a person of his nominated sex[26]. 69.The court accepted the medical expert evidence in that case which supported that “the amount of surgery must be assessed on a case by case basis”, and that “hormone therapy and a mastectomy is sufficient medical treatment to enable Michael to acquire the physical confirmation of a male” and that surgical procedures were not necessary[27]. After further looking at the legislative history of the Act, Judge Fitzgerald concluded at paragraph 72 that the Parliament did not intend “there be a standardised test to apply to all applicants and to do so would be to misunderstand transsexualism and the treatment for it. The short answer to the question is that it is not necessary in all cases for an applicant to have undergone full gender reassignment surgery in order to obtain a declaration under the section. Just how much surgery he/she needs to have had is determined on a case by case basis by reference to the evidence in the particular case, including that of the medical experts”. 70.As submitted by Mr Wong, this case is about the statutory construction of the specific Act in question with regard to its particular legislative background. It therefore cannot be treated as laying down any principle in general. 71.Mr Pun further refers the court to Re Alex (2004) 31 Fam LR 503 to support his contentions under this ground by relying on paragraphs 234 - 240 of the judgment of Nicholson CJ as follows:
72.In Re Alex, the issue before Nicholson CJ in the Family Court of Australia was whether he should authorise medical treatment involving the administration of hormonal therapies on a 13-year-old person, “Alex”, who was biologically a girl. The Family Court was tasked with assessing whether the treatment was in Alex’s best interests. In the course of his judgment (at paragraphs 228 - 234), his Honour referred to a discussion paper setting out the statutory requirements for transsexual persons to amend their birth certificates in different Australian states and territories and opined obiter (at paragraph 234) that:
73.His Honour did, however, note that, in Western Australia and South Australia, where surgery was not required, the question of whether a change of sex should be recognised was to be decided by respectively an authorised magistrate and the Gender Reassignment Board (paragraph 229). Calling on the other states and territories to revisit their position, Nicholson CJ said (at paragraph 240):
74.In the premises, again, Re Alex rather supports the Commissioner’s contentions that, short of full SRS, any other criteria to be adopted for recognising a change of sex should be decided by the government and the legislature, rather than the court. 75.All these authorities therefore do not assist the applicants. 76.For all the above reasons, and giving a narrow margin of appreciation to the Commissioner, although not with some difficulty, I have come to the view that the Policy with the Challenged Requirements amounts to a no more than necessary restriction of the applicants’ BOR 14 rights to achieve the Aim. The restriction is therefore a proportionate one. B1.4 Step 4 – Whether a reasonable balance had been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual 77.Given the significant and wide impact on public interests as explained above, I am satisfied that a reasonable balance had been struck by the Policy between the benefits of the Challenged Requirements and the inroads made to the applicants’ right. B1.5 Conclusion under Ground 1 78.For all these reasons, the Challenged Requirements satisfy the proportionality test and therefore are compliant with BOR 14. The applicants therefore fail on Ground 1. B2. Ground 2 79.BOR 3 (which incorporates Article 7 of the ICCPR) provides as follows:
80.The right not to be subjected to cruel, inhuman or degrading treatment under BOR 3 has been held to be an absolute right, and there is no room for justification or proportionality analysis: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743. 81.As advanced at the hearing, the applicants’ challenge under this ground is premised on the contention that the Policy violates the BOR 3 right as it amounts to requiring the applicants (and other MtF transgender persons) to undergo unwanted and involuntary invasive medical surgical procedures (which effectively have the effect of sterilisation). The applicants contend that the requirement that they have to undergo invasive surgical procedure to remove their uteri and ovaries before they could have their gender entry on the ID cards changed to their chosen gender is cruel, inhuman or degrading treatment since they are effectively “forced” by the Policy to undergo involuntary and unwanted medical treatment. There is no valid consent given to having the procedures carried out. 82.On the other hand, Mr Wong submits there is no violation of the BOR 3 right. 83.First, Mr Wong submits that there is no issue of any forced medical procedure on the applicants or any transsexual without their informed consent. This is so because:
84.Second, Mr Wong also argues that the Challenged Requirements do not involve any cruel, inhuman or degrading treatment falling within BOR 3 for the following reasons. 85.Not every kind of treatment that causes pain or suffering, or violates the integrity of the body breaches BOR 3. The suffering must be “severe” so as to reach the minimum level required for it to be inhuman[32]. 86.The assessment of the minimum level is relative, and is not just a question of intensity of the pain and suffering involved. Instead, it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effect, and in some cases, the sex, age and state of health of the person given the treatment[33]. 87.Hence, Lord Hope in R (Limbuela) v Home Secretary [2006] 1 AC 396 observes at paragraphs 54 and 55 as follows[34]:
88.Further, for the treatment to be inhuman or degrading, the severe suffering or humiliation involved must go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment[35]. The legitimacy of the treatment renders it not inhuman or degrading at all, rather than as a justification of an inhuman or degrading treatment. This is echoed by Nowak and McArthur, who said at 558:
89.Treatment has been held to be “inhuman” by the ECHR because, among others, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering: Jalloh v Germany (2007) 44 EHRR 32 at paragraph 68. 90.Further, treatment should only be regarded as degrading if it denotes any contempt or lack of respect for the personality of the person concerned, and it humiliates or debases that person[36]. 91.In this respect, Mr Wong emphasizes it cannot be disputed that SRS is an accepted, legitimate and internationally recognised procedure available to those with gender dysphoria as a medical treatment, offering many beneficial effects not available to those opting not to go for it[37]. 92.Once considered and assessed in the circumstances and context that (a) transgender persons and the applicants are only required under the Policy to undergo an accepted and legitimate medical procedures (which do offer medical benefits on them), and (b) no such procedures will ever be carried on them unless and until they have consented to it, after fully informed of all the risks and consequences associated with the procedure and been given as long a time as they wish to have to consider whether to undergo it or not, it is clear (says Mr Wong) that they are not subjected to any cruel, inhuman or degrading treatment because they have to undergo full SRS under the Policy if they want to change the gender entry on the ID card. 93.As I can understand, in light of the above contentions advanced by the parties, the critical issue between them under this ground is whether the applicants and other transgender persons can be regarded as having given a valid and informed consent when they decide to undergo full SRS because they have to do it in order to change the gender entry on their ID cards. 94.In my judgment, they can be so regarded. 95.First, an informed consent means that in giving the consent, the person is informed of his state of health, the reason for the procedure and the possible alternatives, and that he had been given a reasonable length of time to consider before making the decision[38]. 96.A transgender person, even if he decides to have SRS only because he wishes to have the gender entry on the ID card changed, has been fully informed of the health and medical risks associated with the procedure. He also has all the time he needs to make a final decision. He understands that he can decide against undergoing the procedure. Hence, when he decides to give his consent to do so, it must be regarded as proper fully informed consent[39]. 97.Second, there cannot be any dispute that a consent can only be regarded as valid if it is given by the person freely and voluntarily, but not under duress or undue compulsion. 98.In relation to this, Mr Pun submits that for those who do not need to have full SRS medically for their transgenderism, and who also do not wish to do it as, say, they do not wish to take the risks of the surgery, they are in substance “forced” to undergo the surgical and invasive procedure when they wish to exercise their right under BOR 14 to have their gender identity recognised. 99.Leading counsel emphasizes that a transgender person faces significant discrimination and prejudice in daily life, if the identification document does not reflect his or her chosen gender while he or she in fact has the outward appearance of, and has lived the life of the chosen gender[40]. As stated in the IWG Consultation Paper at paragraphs 1.4 and 1.6:
100.In light of the day to day prejudice and discrimination that a transgender person may be subjected to, Mr Pun submits it is unrealistic to suggest that they are not under some form of compulsion or force to undergo SRS for the only purpose of having their gender entry on the ID card changed[41]. Such a “coerced” consent, Mr Pun submits, cannot be genuinely regarded as a true voluntary consent to permit the invasive procedure carried upon them. In further support, Mr Pun relies on the observations made by the ECHR in AP at paragraphs 126 - 128[42]:
101.These are persuasive submissions. 102.However, on closer analysis, I do not think it can be said that the transgender person who gives his consent in these circumstances is not a voluntary consent. 103.In my view, nothing and accepting the submissions relating to the circumstances set out at paragraph 83 above, this is not materially different in nature from a situation where a person is asked to consider giving a consent to undergo an optional but legitimate surgical procedure to eradicate a condition which is not life threatening or does not have medical consequences, but if not removed would cause prejudice or discrimination to that person. If the person decides then to consent to the surgery because he does not wish to continue to be subjected to that prejudice or discrimination, the consent so given must clearly still be regarded as voluntary and not coerced. It is a free and considered choice of the person. 104.For these reasons, I do not accept that the Challenged Requirements violate the applicants’ right against cruel, inhuman or degrading protected under BOR 3. Ground 2 therefore similarly fails. B3. Ground 3 105.Section 5(1)(b) of the SDO provides:
106.Section 6(1) of the SDO provides:
107.The applicants’ case that the Policy constitutes indirect discrimination under section 5(1)(b) of the SDO can be summarized as follows:
108.I can deal with this ground quickly. 109.First, in order to succeed, it is critical and crucial for the applicants to prove by evidence that the proportion of biological women (as FtM) who can comply with the Relevant Requirement is “considerably” smaller than the proportion of the biological men (as MtF) who can comply with it. 110.In this respect, the only evidence that the applicants have adduced to support this is only their medical experts’ evidence that the surgical procedure of “phalloplasty” (the construction of a full size and functional penis) is a much more complex (and hence difficult) procedure than “vaginoplasty” (the surgical procedure to create a vagina for MtF)[43]. 111.However, this is not evidence to show, on a balance of probabilities, that the proportion of biological women (as FtM) who can comply with the Relevant Requirement is “considerably” less than the proportion of the biological men (as MtF) who can comply with it:
112.Second, in order to succeed, the applicants must also prove that the application of the Relevant Requirement is to their detriment as they cannot comply with it. In other words, putting their case to the highest, they have to prove that they could not successfully undergo the surgical procedure of phalloplasty even if they had wanted to do it. 113.However, the applicants have simply adduced no (let alone any credible) evidence whatsoever to that effect. 114.In the premises, the applicants have failed to satisfy the essential elements under section 5(1)(b) of the SDO to establish indirect discrimination. 115.I will therefore also dismiss this ground. C. OTHER MATERIALS 116.After having dealt with all the grounds of challenge above, it remains for me to mention one more matter. 117.In these applications, Mr Pun has referred me both in his skeleton and at the hearing to various principles set out in the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and General Identity (“the Yogyakarta Principles”). The Yogyakarta Principles represent a principled consensus of a distinguished group of human rights experts from diverse background, including judges, academics, UN High Commissioner for Human Rights and Special Rapporteurs. However, these principles are not statements of law and are not legally binding. They represent and are aspirational statements formed by these distinguished people. 118.Similarly, Mr Pun in the skeleton also refers to various international studies, reports and commentaries on the rights of transgender people to seek amendments of their gender entry stated in the identification documents. Again these are not statements of law nor are they legally binding. 119.In relation to the relevance of materials of such nature in aiding the court’s task of resolving question of construction, it is pertinent to bear in mind the observations made by Gummow, Hayne and Heydon JJ in Purvis v State of New South Wales (2003) 217 CLR 92 at paragraph 206:
120.I agree with these observations. 121.I have therefore regarded the various observations, commentaries and statements in these materials as aspirational benchmarks references. But I hope I could be forgiven for not referring to these materials in an already long judgment. To the extent that they are referred to in Mr Pun’s skeleton, I have considered them. But as demonstrated in the judgment above, I have sought to determine the issues raised in this application by resorting to what I regard as principles and authorities that are either legally binding on me, or legally relevant. D. CONCLUSION 122.The applicants therefore fail under all the grounds raised in these judicial review on merits. I would dismiss the applications substantively. 123.However, formally, I would still grant leave to all the applicants to apply for the respective judicial reviews, as I do find those grounds to be reasonably arguable if they are treated at the leave stage. 124.There are no reasons why costs should not follow the events. I therefore further make an order nisi that costs of the applications be to the Commissioner, with certificate for three counsel, to be taxed if not agree. The applicants’ own costs be taxed in accordance with legal aid regulations. 125.Before I leave the matters, I would like to say two things. 126.First, I would like to echo Judge Ranzoni’s sentiment expressed at paragraph 20 of his dissenting judgment in AP that I find it not easy in making a decision in these very difficult and sensitive cases. The issues raised impact significantly upon both the private rights and interests of transgendered persons, as well as the public interests as whole, which are in conflict. There are strong arguments on either side of parties. 127.Although at the end I have decided in favour of the Commissioner, the court is conscious of the situations faced by transgender persons who have not completed SRS and have their assigned (but not chosen) gender stated in the ID cards as presented in the evidence. The court is however pleased to see that the Government has been consulting all the stakeholders and members of the public seeking to effect legislative changes to address in an overall manner, amongst, the difficult issues raised in these applications. 128.Second, I wish to thank counsel for their very able and helpful assistance in this difficult and sensitive matter.
Mr Hectar Pun SC and Mr Earl Deng, instructed by Vidler & Co, assigned by Director of Legal Aid, for the applicants in all actions Mr Stewart Wong SC, Ms Grace Chow and Ms Bonnie YK Cheng, instructed by Department of Justice, for the putative respondent in all actions [1] According to Dr Winter at paragraphs 13 - 14 of his affidavit, it is common practice in research literature and clinical practice in the field of transgender healthcare to refer to a FtM transgender as a man and to use male pronoun to refer to that person. The respondents have not suggested otherwise. I would therefore adopt this practice as a matter of convenience to so refer the applicants in this judgment. [2] Under Regulation 14(1) and (2) of the Registration of Persons Regulations (Cap 177A), a holder of an ID card may apply to a registration officer for alteration of that card, and the registration officer in considering the application could ask for the production of evidence in support of the application as he may require, and carry out such investigation he may consider necessary. [3] The Policy is published to the public. See BE7, p 2047. [4] See Dr Chiu Tor Wo’s Affirmation, paragraph 9. [5] Regarding Q, the refusal decision was made on 31 July 2015; for R, the decision was made on 8 December 2016; and for Tse, the decision was made on 11 January 2017. [6] International Covenant on Civil and Political Rights. [7] See Tsui Yat’s Affirmation, paragraphs 28 - 30. [8] Even on this, it is the applicants’ medical evidence that the World Health Organization has proposed to rename the diagnosis as Gender Incongruence so as to de-categorize the condition as a mental and behavior disorder. See: Dr Winter’s Affidavit, paragraph 32. [9] For examples see: Dr Winter’s Affidavit (applicants’ expert), paragraphs 23 - 31; Dr Ho Pui Tat’s Affirmation (the Commissioner’s expert), paragraphs 5 - 12. [10] Social dysphoria refers to a sense of discomfort or distress associated with identifying as a gender other than the one that society recognizes one to be. [11] Physical dysphoria refers to the discomfort or distress experienced by the transgender person about one’s biological physical sexual characteristics, primary and/or secondary of the assigned gender. [12] See for examples: Dr Chiu’s Affirmation, paragraphs 9 and 25 - 27; Dr Winter’s Affidavit, paragraphs 51 - 62. [13] See for example Dr Winter’s Affidavit at paragraph 60 where he disposes: “…consensus among contemporary transgender healthcare providers that a transgender person’s change of sex is complete when their gender dysphoria is reduced to such an extent that enables them to live and be accepted as a member of their experienced gender. This therefore likely leads to what they consider as full and happy life. They are the best judges thereof.” (emphasis added) See similar view expressed at paragraph 62 that “Once again, the client/patient is the best judge of whether their transition [to the chosen gender] is complete.” [14] The court would like to express its gratitude to the Department of Justice in providing the English translation of this Judgment. The applicants have not taken any issue on the translation. The court and the parties therefore have worked on this translation for the present purposes. [15] For the present purposes, there is no dispute that the right to privacy under Article 8 of the Convention and the right under Article 3 are the same as that respectively of BOR 14 and BOR 3. [16] Judge Ranzoni dissenting. [17] See paragraph 106, and paragraphs 7 and 8 of the judgment of Judge Ranzoni. [18] See paragraphs 121 and 122. [19] At pp 1 - 2. [20] See paragraphs 77 and 79 of Fok Chun Wa. This is also recognised in AP by both the majority and minority judgment. [21] See: AP, at paragraph 123. [22] See Fok Chun Wa at paragraph 73 per Ma CJ. [23] In fact, in the present case, Tse has indeed stated in his affirmation at paragraph 34 that he wanted to harvest and preserve some of his eggs for possible future use by his future (female) spouse to bear a child. See for examples also: Dr Ng Wan Sze Vanessa’s Affirmation, paragraph 9; Dr Joshua David Safer’s Affirmation, paragraph 53; Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People (7th edn, 2011) (“WPATH Standards of Care”) published by the World Professional Association for Transgender Health (“WPATH”) at pp 50 - 51. [24] See: The various models summarized at Annex B to the “Response of the Equal Opportunity Commission to the Consultation Paper on Gender Recognition by the Inter-departmental Working Group on Gender Recognition” submitted on about 2 January 2018; models proposed in the article “Taking Transgender Rights Seriously: A Rights-Based Model of Gender Recognition in Hong Kong” (2015) 45 HKLJ 109 at pp 113 - 117, 124. [25] See the description of how different transsexuals take different steps and go to different extents and undergo different treatments by Lord Nicholls at paragraph 40 of Bellinger. [26] The section provides inter alia that “Subject to subsection (3) of this section, a Family Court may, on the application of a person who has attained the age of 18 years, declare that it is appropriate that birth certificates issued in respect of the applicant should contain the information that the applicant is a person of a sex specified in the application (in sub section (3) of this section referred to as the nominated sex)”. [27] See paragraphs 15 and 71. [28] Paragraph 9 of his Affirmation. [29] Paragraph 16 of his Affirmation. [30] This is to be distinguished from cases such as VC v Slovakia (2014) 59 EHRR 29, where the medical treatment (sterilization) was in fact carried out on the applicant in circumstances where she did not give free, full and informed consent, and when there was no imminent danger to the patient's life and was not medically necessary, and thus served no legitimate purpose. This was held to be degrading treatment (paragraphs 118 - 120). This is also the type of situation primarily targeted at by the various statements of human rights or medical bodies, ie, that medical treatments are in fact carried out on individuals (such as homosexuals and inter-sex persons) without consent at all. [31] See: paragraphs 9 and 11(6) of the Form 86. [32] See: Nowak and McArthur, The United Nations Convention Against Torture: A Commentary (2008) at 558 (text and fn 76). [33] VC v Slovakia, at paragraph 101; Ubamaka, at paragraph 173. [34] Cited with approval by Ribeiro PJ in Ubamaka at paragraph 173. [35] See: VC v Slovakia at paragraph 104. [36] Albert and Le Compte v Belgium (1983) 5 EHRR 533 at paragraph 22, Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 at paragraph 91; Nowak and McArthur, p 588; Tyrer v United Kingdom (1978) 2 EHRR 1 at paragraph 30. [37] See: WPATH Standards of Care at paragraphs 54 - 55. Also statement issued by all members of WPATH board of directors and executive officers (including the applicants’ expert, Dr Monstrey) as at 17 June 2008, which stated: “The medical procedures attendant to sex reassignment are not ‘cosmetic’ or ‘elective’ or for the mere convenience of the patient. These reconstructive procedures are not optional for any meaningful sense, but are understood to be medically necessary for the treatment of the diagnosed condition.” [38] See: YY v Turkey, page 27, paragraph 14 of the joint concurring opinion of Judges Keller and Spanon. [39] See for example Tse’s Affirmation, paragraphs 31 and 32. [40] See also for example Tse’s Affirmation at paragraphs 8 - 22 and 39 - 46 various incidents of cultural practical inconvenience, discrimination and prejudice encountered by him at school, socially and at work. [41] See also similarly observations made in “Report of the Special Rappoteur on torture and other cruel, inhuman or degrading treatment or punishment” (1 February 2013, UN Doc A/HRC/22/53) at paragraphs 78 and 88; Commissioner for Human Rights of the Council of Europe, “Human Rights and Gender Identity”, CommDH/Issue Paper (2009) 2, 29 July 2009 at p 8; the observations of the UN Committee against Torture at paragraphs 28 and 29(a) of “Concluding observations on the fifth periodic report of China with respect to Hong Kong, China” (3 December 2015, UN Doc CAT/C/CHN-HKG/C)/5). [42] Mr Pun also refers this court to Lord Nicholls’ observation in Bellinger at paragraph 41. [43] In support of this proposition, Mr Pun has also referred me to the court’s various observations made in Re Alex at paragraphs 238 - 239 and Michael at paragraphs 15 and 29. These however are not evidence. I will not take them into consideration for this purpose. [44] See Dr Chui’s 2nd Affirmation at paragraph 8. |
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