By Jasmine Kwong

Hong Kong, 19 April 2024: More than a year after a significant Court of Final Appeal ruling, the government has finally amended its policy on allowing citizens to change their gender status on their Hong Kong identity card. However, some LGBTQ+ activists remain unhappy, saying the revised regulations are still discriminatory and infringe privacy rights.

In its landmark judgment on 6 February 2023, the CFA found the government had breached the rights of two transgender men by refusing to let them amend their ID cards without full reassignment surgery. It was the culmination of a legal battle which began in 2019 when the two litigants, Henry Edward Tse and another trans man identified as “Q”, filed a claim against the Commissioner of Registration – a role filled by the Director of Immigration – after he refused to let them change their ID card gender status to male.

Under the revised policy, applicants must still have completed certain surgical procedures to modify their sexual characteristics. They must also show that they have experienced gender dysphoria (psychological distress caused by a mismatch between their biological sex and gender identity), have lived as their preferred gender for at least two years and have undergone hormonal treatments. As well, applicants must agree to continue undergoing hormonal treatments and submit blood test reports for randomised checks.

The government said it had taken “relevant legal and medical advice, as well as drawing reference from the relevant practices overseas” in revising the rules. It also stressed that “the revision concerns the policy on change of sex entry of Hong Kong identity card only, and that the sex entry on a Hong Kong identity card does not represent the holder’s sex as a matter of law”.

Some activists have reacted with dismay to the government’s perceived small shift in policy. Advocacy group Quarks and the Hong Kong Trans Law Database said they were “extremely disappointed”, contending that the revised policy imposes unequal surgical requirements, lacks clear medical standards and pathologises trans people.

It remains to be seen if the new policy is further challenged in the courts, given that it still requires applicants to undergo invasive surgery that may not be considered medically necessary for an individual to consider themselves to be transgender. One of the litigants, Tse, has said he intends to continue a separate lawsuit over what he described as the government’s slow progress on changing the gender on his ID card.

In reality, it appears the revised policy does little to reduce the conflicts experienced by transgender citizens in their day-to-day lives in Hong Kong. The debate surrounding usage of public toilets, hospitals and prisons, for example, can be expected to continue while participation in sports remains a contentious topic.

Finally, it is reasonable to acknowledge that the CFA ruling and the government’s eventual response indicate a step in the right direction. However, the overall development of LGBTQ+ rights in Hong Kong continues to be snail-paced. The progress made thus far can be described as incremental, relying heavily on individuals taking legal action, often at great cost.

Jasmine Kwong is an Associate Solicitor at BC&C, developing her practice in both criminal and civil litigation. She is involved in cases across various areas of law, including fraud recovery claims, contractual disputes, employees’ compensation, personal injury claims, defamation, and matrimonial matters. She can be contacted at jasmine@boasecohencollins.com.