Q v. COMMISSIONER OF REGISTRATION

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

_______________

_______________

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

_______________

_______________

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

_______________

_______________

(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:

(1)  They are unconstitutional as they amount to an arbitrary and disproportionate infringement of the applicants’ right to privacy protected under Article 14 of the Hong Kong Bill of Rights (“BOR 14”) (“Ground 1”).

(2)  They are unconstitutional as they infringe the applicants’ right not to be subjected to cruel, inhuman or degrading treatment (in conjunction with the right to privacy), in breach of Article 3 of the Hong Kong Bill of Rights (“BOR 3”) (in conjunction with BOR 14) (“Ground 2”).

(3)  They constitute indirect discrimination under section 5(1)(b) of the Sex Discrimination Ordinance (Cap 480) (“the SDO”) and are therefore unlawful under section 38(1) of the SDO (“Ground 3”).

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:

“(1)  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2)  Everyone has the right to the protection of the law against such interference or attacks.”

14.  In relation to the protected privacy rights under BOR 14, it is common ground between Mr Pun and Mr Wong that:

(1)  The protected right to privacy includes (a) the protection of an individual’s right to gender identity; and (b) the protection of the individual’s right to physical integrity.  See: Democratic Party v Secretary for Justice [2007] 2 HKLRD 804 at paragraphs 57 - 60; YY v Turkey (unreported, Application No 14793/08, 10 March 2015, European Court of Human Rights) at paragraphs 56, 58 and 60; Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2^nd revised edn, 2005) at Art 17 CCPR, paragraphs 18 and 20.

(2)  The right to privacy is not an absolute one, but any restriction can only be lawful if it satisfies the proportionality test, in that:

(a)  The restriction must pursue a legitimate aim (step 1).

(b)  The restriction is rationally related to the legitimate aim (step 2).

(c)  The restriction is proportionate, in that it must also be no more than necessary to accomplish that legitimate aim.  An alternative standard that may be applied is the “manifestly without reasonable foundation” test (step 3).

(d)  Where an encroaching measure had passed the three-step test, the analysis should incorporate a fourth-step, asking 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, asking in particular whether pursuit of the societal interest resulted in an unacceptably harsh burden on the individual (step 4).  See: Democratic Party, paragraphs 61 - 65, Keen Lloyd Holdings v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 (CA) at paragraphs 57 - 61; Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at paragraphs 134 - 137 per Ribeiro PJ.

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:

(1)  The nowadays medical evidence predominantly shows and supports that transgenderism is not a form of physical illness but a psychiatric disorder, often known as gender dysphoria or gender identity disorder (“GID”).[8] It refers to the distress or discomfort that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender[9].

(2)  In other words, medically when a transgender person is regarded or treated as having properly and fully “transitioned” to the chosen gender principally depends on whether and when he or she could comfortably cope with or no longer feels any social dysphoria[10] and physical dysphoria[11].

(3)  In relation to this, different transgender persons may achieve that status at different stages and with different treatments.  Some may need the assistance of complete SRS to achieve it but some may not.  Some may only need to have hormonal treatment and/or real life experience.  Some may even not require any forms of treatment if he or she does not have any social or physical dysphoria.  Thus, it is emphasized by all the medical experts in the present cases that all the various forms and options of medical and surgical treatments (including SRS) are only there to assist and alleviate the transgender person’s distress or discomfort caused by the physical incongruence between his or her chosen gender and the assigned gender.  If the transgendered person does not require any or some of those forms of treatment as he or she does not experience any discomfort or distress because of the incongruence, he or she does not have to undergo those treatments[12].

(4)  In light of these, Mr Pun emphasizes that it is therefore wrong and illegitimate for the Commissioner to seek to impose a single uniform standard (whether it is SRS or otherwise) to all transgender applications seeking to change the gender entry stated in their ID cards.  It is also wrong and illegitimate to seek to impose a single and uniform purportedly “objective” guideline (or to draw a bright line) to do so, since, as demonstrated by the medical evidence, whether the transgender person has properly transitioned to the chosen gender is effectively a matter dependent on that person’s mental and psychological conditions.

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:

“5. To provide more details on the said broad significance of the sex entry on HKIC for the purposes of the present proceedings, information has been gathered from various Bureaux and Departments of the Government as to their use of the sex entry on HKIC. This Affirmation sets out the relevant information gathered so far. As the following paragraphs show, if a change of sex on the HKIC is allowed for a person not having undergone full sex reassignment surgery (‘SRS’), as required by the Policy, that person would then be taken in the course of everyday life, including the aspects stated below, as a member of another sex, when that person does not have the full external physical attributes of a particular sex, and/or has retained the sexual characteristics (including possibly the reproductive capacity) of the other, without being legally recognised as a member of the other sex. As the following paragraphs of this Affirmation show, practical implications and difficulties would arise across many areas in society.

Emergency Responses

(Information from the Security Bureau, ‘SB’)

6. According to SB, in handling emergency situations, the sex of a person may need to be speedily ascertained, and that is done by reference to the HKIC of the person.

7. In handling chemical, biological, radiological and nuclear attacks, the Fire Services Department (‘FSD’) (assisted by the Police and the Hospital Authority where possible) will deploy female officers to assist female victims / casualties and male officers to assist male victims / casualties as far as practicable. Where there is a large number of contaminated persons requiring mass decontamination, a Corridor Decontamination System will be set up to serve the purpose of mass decontamination by showering. In general, this is done by setting up independent corridors separating, among others, male and female ambulatory victims. High volume of water spray will be discharged at the corridors for the male and female victims respectively. Inflatable Aireshelters will be set up at both ends of the ambulatory decontamination corridors for the male and female victims respectively, which would serve the purpose of providing shelter for the victims to strip off their clothing before taking showers and to put on boiler suits after decontamination. Further, more generally in everyday situations, ambulancemen are required to take care to ensure correctness of actions and manner towards female patients, especially in gynaecological and maternity cases. In handling the above, FSD’s relevant operations rely on the sex entry on the HKIC of a member of the public to determine the sex of the person where possible. If a person is taken as of a particular sex (male or female), but anatomically / physically is of the other sex, this may bring embarrassment to the subject as well as the officers and other patients / victims, and even complaints of misconduct of a sexual nature against various persons concerned.

…

Registration Cards for People with Disabilities

(Information from Labour and Welfare Bureau; ‘LWB’)

13. According to LWB, the Central Registry for Rehabilitation (‘CRR’) issues Registration Cards for People with Disability (‘Registration Cards’) to eligible persons with disabilities. The purpose of the Registration Card is to enable the card holder to produce, where necessary, a documentary proof of his/her disability status to facilitate the provision of prompt and appropriate assistance to him / her. There is a sex entry on the Registration Card, and the CRR relies on the sex entry on HKIC as proof of the sex of the applicant in making the sex entry on the Registration Card, as the physical sex of the person is often relevant in the arrangement of such assistance. For example, in a case where a person with disability needs emergency placement service to provide him/her with urgent accommodation to prevent him/her from being exposed to risks owing to the lack of immediate care and shelter, the case worker of the Social Welfare Department (‘SWD’) or the Non-Government Organisation concerned will need to ascertain the concerned person’s physical sex in order to match him/her with suitable residential places. Another example is that in case a body search of a person with intellectual disability or hearing impairment who has difficulty in expressing himself/herself is to be conducted by a police officer, the physical sex of the person with intellectual disability or hearing impairment is required to be promptly ascertained so that the body search can be conducted by a police officer of the same sex. If the sex entry on HKIC cannot be reliably referred to in ascertaining the actual physical sex of a subject, if there is incongruence between the sex identified on the HKIC and the external physical attributes of the person concerned, this would affect the sex entry on Registration Cards (in that there would be no readily reliable means to ascertain the sex of the cardholders for entry onto the Registration Cards). If the physical sex of a cardholder cannot be reliably ascertained, this might affect the provision of prompt and sex appropriate assistance to the cardholder, thus defeating the purpose of the Registration Card, as well as causing embarrassment to officers and other users of the facilities and may even cause complaints of misconduct of a sexual nature to be made against various persons concerned.

Residential Services operated or subsidised by the Social Welfare Department

(Information from LWB)

14. According to LWB, the residential services operated or subsidised by SWD are provided for needy persons irrespective of their sex. However, insofar as these residential homes are concerned, the applicants’ sex is one of the criteria for matching them with suitable residential places. The residential services include the Residential Care Homes for the Elderly (‘RCHEs’), Residential Care Homes for Persons with Disabilities (‘RCHDs’), Refuge Centres for Women, Family Crisis Support Centre, Emergency Shelters and Single Person Hostels for Street Sleepers, Shelters for Unaccompanied Minor and Adult Non-refoulement Claimants, Residential Child Care Services (‘RCCS’), Tuen Mun Children and Juvenile Home, etc. There is a clear distribution in residential homes on the number of female or male residential places. The physical setting and the arrangement for female and male staff to provide personal care (such as bathing, changing diapers, other personal hygienic care, etc.) also hinge on the sex distribution of residents.

15. As informed by LWB, the operation of the above services relies on the sex entry on HKIC, both in respect of the person receiving the services and staff who provide the services. When applying for residential services through the central waiting lists, the sex entry on a person’s HKIC is required. The sex entry on HKIC is also relied on in providing immediate service (e.g. emergency placement). Should the sex entry on HKIC be changed while the person has not completed SRS, it is likely to cause considerable concerns. For instance, there would be great operational difficulties for a residential centre for women to admit a person who is biologically / anatomically male. Residents in residential services usually have intense interaction and it is absolutely necessary to maintain its sex-specific nature to facilitate the smooth operation and management of the daily routines. If a person, who has not completed SRS and is physically a male but is marked as female on a HKIC, is matched with female facilities, or vice versa, the arrangement would be subject to queries / complaints of other users and may cause discomfort or embarrassment to other users or even staff who may need to be closely / intimately in touch with the users in delivering care services (e.g. for RCHEs and RCHDs which provide intensive personal care to the elderly and disabled). Further, practical difficulties in staff arrangement will arise, such as a person who is physically male but is marked as female on a HKIC, and assists young girls at RCCS especially in respect of personal hygiene.

16. If the sex entry cannot be reliably referred to in ascertaining the actual physical sex of a subject, if there is incongruence between the sex identified on the HKIC and the external physical attributes of the person concerned, the service provider would have no clear workable basis to arrange the said sex specific service and may have to rely on the claim of ‘preferred gender’ of the persons concerned. This could cause significant difficulties / concerns, particularly for facilities shared by users, if a person who claims to be a female but is physically male is to share female facilities with females and be intimately cared for (e.g. personal hygiene) by female staff, and there is a likelihood of complaints of misconduct of a sexual nature against any persons who may be involved.

…

In-patient Services by the Hospital Authority

(Information from [the Food and Health Bureau; ‘FHB’])

18. According to FHB, in-patient service is sex specific in the assignment of wards in hospitals, which are categorised into women’s wards and men’s wards. The sex entry on a person’s HKIC would be referred to in allocating the person to a corresponding ward. If the sex entry cannot be reliably referred to in ascertaining the actual physical sex of a subject, if there is incongruence between the sex identified on the HKIC and the external physical attributes of the person concerned, there may be uneasy feelings and inconvenience to other patients in the wards, and thus lead to difficulty in assigning wards and the daily operation of hospitals.

…

Sports

(Information from the Home Affairs Bureau; ‘HAB’)

20. According to HAB, the Leisure and Cultural Services Department (‘LCSD’) organises different kinds of programmes including competitions for the general public. Referencing professional advice from National Sports Associations as well as the rules and regulations as laid down by respective international sports authorities, the division of competitors in programmes on competitions are sex specific. In processing applications for competitions, LCSD relies on the sex entry on a person’s HKIC, which is the only ready and reliable indicator for the identification of the sex of an applicant. As physical abilities varies by sex, if a person is taken as a particular sex but physically is of the other sex, the play may become unfair and the competition result may not be recognised officially. As far as sports competitions are concerned, the general rules of the games which are in practice internationally should be adopted.

…

Single-sex schools

(Information from the Education Bureau; ‘EDB’)

22.   According to the EDB, the prevailing administration of the Primary One Admission System and Secondary School Places Allocation System for allocation of students to Primary 1 and Secondary 1 respectively is sex-specific. Under the allocation systems, 19 primary schools and 60 secondary schools are single-sex schools. Admission of students to fill their discretionary places at the Discretionary Places Admission Stage and allocation during the Central Allocation Stage for students who have not secured a discretionary place rely on the sex entry on HKIC or other valid documents such as Birth Certificates, travel documents, etc. This is to ensure that the single-sex schools will not admit (or be allocated) a student of the other sex. If there were no sex entry on a person’s HKIC, or if the sex entry on HKIC cannot be reliably referred to in ascertaining the actual physical sex of a subject, if there is incongruence between the sex identified on the HKIC and the external physical attributes of the person concerned, it will bring confusion to the allocation systems and hence grave embarrassment to teachers and students who are young in age and particularly sensitive to gender differences, specifically the physical attributes, in their daily school life as instanced in the use of sex-specific facilities at school such as changing rooms and toilets.”

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):

“Gender reassignment

28 The distinction between male and female exists throughout the animal world. It corresponds to the different roles played in the reproductive process. A male produces sperm which fertilise the female’s eggs. In this country, as elsewhere, classification of a person as male or female has long conferred a legal status. It confers a legal status, in that legal as well as practical consequences follow from the recognition of a person as male or female. The legal consequences affect many areas of life, from marriage and family law to gender-specific crime and competitive sport. It is not surprising, therefore, that society through its laws decides what objective biological criteria should be applied when categorising a person as male or female. Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable. That would make nonsense of the underlying biological basis of the distinction.

29 This approach did not give rise to legal difficulty before the advent of gender reassignment treatment. This was noted by Lord Reed in his article ‘Splitting the difference: transsexuals and European Human Rights law’ (September 2000). Gender identity disorder seems always to have existed. But before the advent of gender reassignment treatment a claim by a transsexual person to be recognised in his or her self-perceived gender would have been hopeless. The anatomy of his or her body of itself would have refuted the claim.

30 The position has now changed. Recognition of transsexualism as a psychiatric disorder has been accompanied by the development of sophisticated techniques of medical treatment. The anatomical appearance of the body can be substantially altered, by forms of treatment which are permissible as well as possible. It is in these changed circumstances that society is now facing the question of how far it is prepared to go to alleviate the plight of the small minority of people who suffer from this medical condition. Should self-perceived gender be recognised?

31 Recognition of gender reassignment will involve some blurring of the normally accepted biological distinction between male and female. Some blurring already exists, unavoidably, in the case of inter-sexual persons. When assessing the gender of inter-sexual persons, matters taken into account include self-perception and style of upbringing and living. Recognition of gender reassignment will involve further blurring. It will mean that in law a person who, unlike an inter-sexual person, had all the biological characteristics of one sex at birth may subsequently be treated as a member of the opposite sex.

32 Thus the circumstances in which, and the purposes for which, gender reassignment is recognised are matters of much importance. These are not easy questions. The circumstances of transsexual people vary widely. The distinction between male and female is material in widely differing contexts. The criteria appropriate for recognising self-perceived gender in one context, such as marriage, may not be appropriate in another, such as competitive sport.

33 Stated very shortly, this is the setting for the legal issues arising on this appeal, to which I now turn.

Gender and marriage: part of a wider problem

…

39 First, much uncertainty surrounds the circumstances in which gender reassignment should be recognised for the purposes of marriage. The present case concerns one individual and her particular condition and circumstances. Although some of the evidence produced is of a general nature, the evidence before the House is focused on the facts of this case. So were the arguments. In particular, Miss Scriven submitted that wherever the line marking the transition from one sex to the other is to be drawn, Mrs Bellinger is on the reassigned gender side of the line.

40 I do not consider this would be a proper or, indeed, a responsible basis on which to change the law. Surgical intervention takes many forms and, for a variety of reasons, is undertaken by different people to different extents. For men it may mean castration or inversion of the penis to create a false vagina. For women it may mean a mastectomy, hysterectomy, or creation of a false penis by phalloplasty. There seems to be no ‘standard’ operation or recognised definition of the outcome of completed surgery. Today the case before the House concerns Mrs Bellinger. Tomorrow’s case in the High Court will relate to a transsexual person who has been able to undergo a less extensive course of surgery. The following week will be the case of a transsexual person who has undergone hormonal treatment but who, for medical reasons, has not been able to undergo any surgery. Then there will be a transsexual person who is medically able to undergo all or part of the surgery but who does not wish to do so. By what criteria are cases such as these to be decided?

41 But the problem is more fundamental than this. It is questionable whether the successful completion of some sort of surgical intervention should be an essential prerequisite to the recognition of gender reassignment. If it were, individuals may find themselves coerced into major surgical operations they otherwise would not have. But the aim of the surgery is to make the individual feel more comfortable with his or her body, not to ‘turn a man into a woman’ or vice versa. As one medical report has expressed it, a male to female transsexual person is no less a woman for not having had surgery, or any more a woman for having had it: see Secretary, Department of Social Security v SRA (1993) 118 ALR 467, 477.

42 These are deep waters. Plainly, there must be some objective, publicly available criteria by which gender reassignment is to be assessed. If possible the criteria should be capable of being applied readily so as to produce a reasonably clear answer. Parties proposing to enter into a marriage relationship need to know whether their marriage will be valid. Other people need to know whether a marriage was valid. Marriage has legal consequences in many directions: for instance, housing and residential security of tenure, social security benefits, citizenship and immigration, taxation, pensions, inheritance, life insurance policies, criminal law (bigamy). There must be an adequate degree of certainty. Otherwise, as the majority of the Court of Appeal observed, the applicability of the law to an individual suffering from gender identity disorder would be in a state of complete confusion: see [2002] 2 Fam 150, 177, para 104.

43 Your Lordships’ House is not in a position to decide where the demarcation line could sensibly or reasonably be drawn. Where this line should be drawn is far from self-evident. The antipodean decisions of Attorney General v Otahuhu Family Court [1995] 1 NZLR 603 and In re Kevin (Validity of Marriage of Transsexual) [2001] Fam CA 1074 and Appeal No EA 97/2001 have not identified any clear, persuasive principle in this regard. Nor has the dissenting judgment of Thorpe LJ in the present case. Nor has the decision of the European Court of Human Rights in Goodwin v United Kingdom 35 EHRR 447. Nor is there uniformity among the 13 member states of the European Union which afford legal recognition to a transsexual person’s acquired gender. The preconditions for recognition vary considerably.” (emphasis added)

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 1^st 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:

(1)  As explained above, this matter has a significant impact on other members of society, and for matter that concerns social-economic issues, policy considerations are best left to the executive, legislative and other authority: Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at paragraph 75 per Ma CJ; Hamalainen v Finland (2014) 37 BHRC 55 at paragraph 67.

(2)  There is no consensus internationally on a single uniform approach as to the process of gender recognition and the complex issues it raises.  Further, the Hong Kong Government has already established an Interdepartmental Working Group on Gender Recognition (“IWG”) to consider legislation and incidental administrative measures that may be required to protect the rights of transsexual persons and to make such recommendations for reform as may be appropriate.  Given that gender recognition process involves complex issues concerning the balance of the rights between the individuals and the public, the court does not have the expertise and sufficient oversight to assess these competing interest.  In the premises, pending the outcome of the consultation and legislation, the court should accord a wide margin of appreciation to the Commissioner to devise the administrative policy in administering the scheme.

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:

“122. In this case, the Court notes that the State parties are split on the sterility condition (paragraph 71 above). Therefore, there is no consensus on the matter. It notes then that public interests are at stake, the Government invoking in this regard the necessity to preserve the principle of the inalienability of personal status and to guarantee the reliability and the coherence of the civil registration system, and that the present cases touch on sensitive moral and ethical questions.

123. However, it also finds that an essential aspect of the personal identity of persons, if not of their existence, lies at the heart of the present applications. First of all because the physical integrity of individuals is directly in issue since it is a question of sterilization. Then because the applications have to do with the sexual identity of individuals, the Court having already had occasion to emphasize that ‘the concept of personal autonomy reflects an important principle which underpins the interpretation of the guarantees enshrined in Article 8’ (see, op. cit., Pretty, §61, Van Kück, §69, and Schlumpf, §100) and that the right to sexual identity and personal development is a fundamental aspect of the right to respect of privacy (see Van Kück, op. cit., §75). This finding leads it to find that the respondent State in the case only has a restricted margin of discretion.

124. Overwhelmingly, the Court finds that this condition has disappeared from the substantive law of eleven State parties between 2009 and 2016, one of them France, and that reforms to this end are being debated in other State parties (paragraph 71 above). This shows that a tendency towards its abandonment, based upon a development of the understanding of transsexualism, has emerged in Europe in recent years.

125.     It also notes that numerous European and international institutional bodies that promote and defend human rights have adopted a clear position favouring the abandonment of the sterility criterion, which they believe to be detrimental to fundamental rights: the Commissioner for Human Rights of the Council of Europe, the parliamentary Assembly of the Council of Europe, the United Nations Special Rapporteur on Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the World Health Organization, the United Nations Children’s Fund, the High Commissioner and the Office of the High Commissioner for Human Rights of the United Nations, UN Women, UNAIDS, the United Nations Development Programme and the United Nations Population Fund (paragraphs 73-81 above).  It observes that many of these declarations were made prior to or together with the judgments handed down by the Court of Cassation in the case of the second and third applicants.”

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:

(1)  At the heart of these applications lay essential aspects of an individual’s intimate identity, and even of his or her existence: on the one hand, physical integrity (given that sterilisation was involved); on the other, sexual identity.

(2)  In addition, the impugned condition had been removed from the positive law of eleven States Parties, including France, between 2009 and 2016, and similar reforms were being discussed in other States Parties.  This indicated that a trend had emerged in Europe in recent years with regard to abandoning this criterion, based on changes in the understanding of transgenderism.

(3)  Moreover, numerous European and international institutional actors who were active in the promotion and protection of human rights had spoken out very clearly in favour of abandoning the sterility criterion, prior to or concomitantly with the Court of Cassation’s judgments in this case.

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:

(1)  Not only was there no consensus among the Member States as to what should be the necessary requirements for recognising a transgender’s gender change stated in the identification documents, the fact was indeed that there were more Member States which would require the transgender to be subject to an irreversible sterilization treatment or surgery for such purpose than those that did not so require.

(2)  There is no basis to support, and in any event there is no proper analysis underlying, the purported increased international tendency to do way this requirement to justify a restriction of the margin of appreciation.

(3)  The reliance by the majority on the views and commentaries expressed by international organisations and bodies that “promote” rights which called for the doing away of the sterilization requirement to support a restriction of margin of appreciation is flawed and lacks proper legal basis.  The court should be concerned only with legal principles on the “protection” of human rights, not “promotion”.

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:

“76. To summarise, unless the solution or alternative in question is manifestly beyond the spectrum of reasonableness (or manifestly without reasonable foundation) the court will not interfere.

77. It is, however, important to put what has just been discussed into proper perspective. The proposition that the courts will allow more leeway when socio-economic policies are involved, does not lead to the consequence that they will not be vigilant when it is appropriate to do so or that the authorities have some sort of carte blanche. After all, the courts have the ultimate responsibility of determining whether acts are constitutional or lawful. It would be appropriate for the courts to intervene (indeed they would be duty-bound to do so) where, even in the area of socio-economic or other government policies, there has been any disregard for core-values. This requires a little elaboration. Where, for example, the reason for unequal treatment strikes at the heart of core-values relating to personal or human characteristics (such as race, colour, gender, sexual orientation, religion, politics, or social origin), the courts would extremely rarely (if at all) find this acceptable. These characteristics involve the respect and dignity that society accords to a human being. They are fundamental societal values. On the other hand, where other characteristics or status which do not relate to such notions or values are involved, and here I would include residence status, the courts will hesitate much more before interfering; in other words, more leeway is given to the executive, legislature or other authorities. I have found useful in this context the analysis contained in the speech of Lord Hoffmann in Carson, 182E-183B [15]-[16]. As Lord Hoffmann observed, there can of course be borderline cases but generally there ought to be little difficulty in differentiating between a core value and a mere question of general, social or economic policy: at 183C [17]. In the present case, using residence status as the dividing line in relation to health benefits clearly falls within the latter. This status has less to do with personal characteristics (in the sense used above) than with social and economic considerations.

78. Where core values relating to personal characteristics are involved, the court will naturally subject the relevant legislation or decision to a particularly severe scrutiny. Lord Pannick QC (for the respondents) used the term ‘inherently invidious’ to describe any decision which offended these core values. While I would, for myself, not have used this expression, it nevertheless conveys the necessary sentiment.

79. It is convenient here also to remind ourselves that where the subject matter of the challenge has to do with fundamental concepts, in contradistinction to rights associated with purely social and economic policies, the courts will be particularly vigilant to protect the rights associated with such concepts, and consequently much less leeway or margin of appreciation will be accorded to the authority concerned. These fundamental concepts are those which go to the heart of any society. They include, for example, the right to life, the right not to be tortured, the right not to be held in slavery, the freedom of expression and opinion, freedom of religion (among others). Fundamental concepts also include the right to a fair trial and the presumption of innocence. Here, the courts have been vigilant to ensure that the proportionality or justification test is satisfied. Thus, in relation to the presumption of innocence, the courts have read down provisions in criminal statutes (which placed a legal or persuasive burden of proof on an accused person) to an evidential burden: see HKSAR v Lam Kwong Wai ([63] above), HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614.” (emphasis added)

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:

(1)  The majority decision focuses much on what it regarded as the growing consensus among the Member States to do away the sterilization requirement.  As I have explained at paragraph 44 above, I do not think this is a correct and pertinent factor that this court can rely on to determine the constitutionality of the Policy with the Challenged Requirements.

(2)  In AP, the justification the French Government provided to justify the infringement was that the requirement was imposed to pursue the legitimate aim of maintaining the reliability and coherence of the French civil registration system and to uphold the sexual identity’s necessary and defining role in social and legal organisation.  This is different from the Aim that the Commissioner now puts forward to justify the Challenged Requirements.  This therefore warrants a different consideration by the court from that considered by the ECHR in AP.

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:

“[234] I consider it is a matter of regret that a number of Australian jurisdictions require surgery as a pre-requisite to the alteration of a transsexual person’s birth certificate in order for the record to align a person’s sex with his/her chosen gender identity. This is of little help to someone who is unable to undertake such surgery. The reasons may differ but for example in present case, a young person such as Alex, on the evidence, would not be eligible for surgical intervention until at least the age of 18 years. Thus, for the many purposes for which a birth certificate is required (such as an application for a passport), a person such as Alex in those jurisdictions is required to produce a birth certificate that describes him as a female in circumstances where in all other respects he is living his life as a male.

[235] The discussion paper to which I have referred contains illustrations of the hardships that are experienced when the sex recorded on the birth certificate is incongruent with their chosen gender identity. It rightly appreciates that people in these circumstances (at 3):

... have to endure the embarrassment of explaining their personal history. Naturally, this will be the source of a great deal of distress and embarrassment for the person as well as increasing the risk of being unfairly discriminated against.

[236] Reflecting upon the particular circumstances of this case leaves me anxious about the detrimental consequences that a young person such as Alex would suffer from having to present a birth certificate that is antithetical to his self-image.

[237] A requirement of surgery seems to me to be a cruel and unnecessary restriction upon a person’s right to be legally recognised in a sex which reflects the chosen gender identity and would appear to have little justification on grounds of principle.

[238] The requirement of prior surgery in order to establish the fact that a person is a man for the purposes of a valid marriage was questioned in the Re Kevin cases, above see particularly In Re Kevin (Validity of marriage of transsexual) (No 2), above, at [382]-[388]. The Full Court there also noted (at [386]) the submission of the commission that the efficacy of surgical intervention is more problematic where the transition is from female to male. Senior counsel for the commission in that case said:

... in the circumstances of this case, it is worth accepting that surgical intervention in relation to the removal of gonads maybe relatively straight forward, surgical intervention for a male to female transsexual person in relation to the construction of a vagina may be common place, surgical intervention which requires the construction of a penis is much more problematic and even where it takes place may or may not give rise to something which would be readily accepted as a penis of a sexual kind which has a particular sexual function.

[239] If one accepts such a submission, a requirement of surgery is not only generally inconsistent with human rights. The requirement is more disadvantageous and burdensome for people seeking legal recognition of their transition from female to male than male to female. Expressed in this way, there is an additional objection to surgery as a pre-requisite: the requirement of surgery is a form of indirect discrimination.

[240] I would urge the various state and territory legislatures that make surgery a pre-requisite for a change in birth certificates to reconsider their position.”

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:

“it is a matter of regret that a number of Australian jurisdictions require surgery as a pre-requisite to the alteration of a transsexual person’s birth certificate in order for the record to align a person’s sex with his/her chosen gender identity.”

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):

“I would urge the various state and territory legislature that make surgery a pre-requisite for a change in birth certificates to reconsider their position.”

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:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

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:

(1)  If the applicants had agreed to SRS, knowing full well what it involves, there can be no “forced” medical treatment or lack of informed consent, whether in the context of BOR 3 or otherwise.  The very fact that the applicants have chosen not to undergo full SRS even though (in the case of Q) he is psychiatrically fit to do so, or (in the case of R and T) he has submitted no medical reasons as to why the same cannot be undergone by him shows that no medical treatment is, or will, ever be “forced” on them by the Decisions, or on them or any other transsexuals by the Policy.  As stated by Dr Chiu[28] and by Dr Ho[29], SRS will only be conducted on a person with his or her full informed consent.  No one is ever operated on under a SRS in Hong Kong without his or her full informed consent.[30]  It cannot be said that the requirement “forces” any medical intervention or treatment on any transsexuals, or that somehow BOR 3 is engaged (in the sense that no treatment falling within that Article is in fact, or threatened to be, practised on any person without his or her full informed consent) or infringed.

(2)  Moreover, there is also the possibility, if the applicants are able to come under the Exception to the Policy that there are medical reasons why SRS cannot be completed, that their applications for change of the sex entries on their ID cards would be granted on an exceptional basis. In such a case, there would be no question of any forced bodily intervention. It is Q’s own case that he is now sterilised[31], clearly out of his own voluntary choice of receiving hormonal treatment so as to make himself look more masculine (and not forced upon him by the Policy or otherwise he would have gone further in the sex reassignment procedure), thus there is simply no factual foundation for his case based on forced sterilisation.  In the case of R and T, there is nothing to suggest that either of them has been sterilised.

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]:

“54 …

It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3.

55  So the exercise of judgment is required in order to determine whether in any given case the treatment or punishment has attained the necessary degree of severity. …”

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:

“Outside the narrow scope of torture, the infliction of severe pain or suffering may be justified if such use of force serves a legitimate purpose and is not excessive. The principle of proportionality must, therefore, be applied in order to assess whether the infliction of severe pain or suffering amounts to cruel or inhuman treatment or punishment.”

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:

“‘1.4  ... Further, it has been suggested that transgender people, especially those who are unable to get gender-affirming identity cards, are vulnerable to prejudice and discrimination whenever their transgender status is revealed. This can in turn make it difficult to obtain and keep jobs and educational opportunities, access rented housing, banking and other basic services, maintain social relationship with their schoolmates, employers and colleagues, as well as put them at risk of prosecution when they use what to them are gender-appropriate toilet facilities, and at risk of being placed in gender-inappropriate accommodation when hospitalised or detained.

…

1.6  It has been observed that many people who are living in their acquired gender want to keep their birth gender private, and want to be recognised legally in their new gender for all purposes. Many object to having to produce a birth certificate in their former name and gender as this may lead to embarrassment or discrimination. They consider that full recognition of their new gender for all legal purposes would ease many of the difficulties faced by them, as a person’s gender identity is important for many activities in daily life. They would wish their official documentation (such as birth certificates, passports, and national identity cards) to reflect their new gender identity. This may also extend to other certification or documentation related to identity or qualifications, such as diplomas, driver’s licences, national health insurance cards, etc. As noted by the Institute of Development Studies in the United Kingdom,

‘Since identification is required for most activities in daily life (enrolling in school, finding a job, opening a bank account, renting an apartment, or travelling across a border), the issue is one that is significant to the individuals concerned. An individual’s right to change the sex on his or her identity documents protects privacy and prevents discrimination and stigma on the basis of gender identity or gender reassignment.’”

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]:

“126. The Court finds that, to obtain recognition of their identity, persons who find themselves in the applicants’ situation would have no choice other than to undergo in advance onerous medical treatment or a surgical operation which would result, in accordance with the substantive French law at the time of the facts of the present cases, in an irreversible transformation of their appearance. As the Court had indicated previously, that would lead, with a high level of probability, to their sterility. Not all transgender persons want – or can – however undergo treatment or an operation with such consequences, as is incidentally illustrated in the case of the second and third applicants in the present cases. The Court notes in this regard that, in his advice of 27 June 2013 cited above, the NACHR emphasized that persons who do not wish to have recourse to these treatments and to these operations have nonetheless accepted the coercion in the hope of seeing an end to the judicial proceedings relating to the amendment of their civil status (paragraph 65 above).

127. Such medical treatments and operations, however, touch upon the physical integrity of the person, which is protected by Article 3 of the Convention (which, however, the second and third applicants did not invoke) as well as by Article 8 of the Convention.

128.     In different contexts, the Court has thus concluded that there has been a breach of these provisions in the context of sterilizations carried out on adults of sound mind who have not given informed consent. In particular, it inferred from the fact that sterilization concerns one of the essential bodily functions of human beings, that it has implications for multiple aspects of the integrity of the person, including on the physical and mental and emotional well-being and emotional, spiritual and family life. It specified that, although it can be carried out legitimately at the request of the person concerned, for example as a means of contraception, or for therapeutic purposes when the existence of a medical necessity has been established convincingly, the situation is different if it is imposed on an adult patient of sound mind without his consent. According to the Court, proceeding in such a manner is incompatible with respect for freedom and human dignity, which constitutes one of the fundamental principles at the heart of the Convention (see Soares de Melo v. Portugal, No 72850/14, §§ 109-111, 16 February 2016; see also G.B and R.B. v. Republic of Moldova, No 16761/09, §§ 29-30 and 32, 18 December 2012).”

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:

“(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Ordinance if—

…

(b) he applies to her a requirement or condition which he applies or would apply equally to a man but—

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it;

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and

(iii)    which is to her detriment because she cannot comply with it.”

106.  Section 6(1) of the SDO provides:

“(1) Section 5, and the provisions of Parts 3 and 4 relating to sex discrimination against women, shall be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are necessary.”

107.  The applicants’ case that the Policy constitutes indirect discrimination under section 5(1)(b) of the SDO can be summarized as follows:

(1)  The Policy applies a requirement (“the Relevant Requirement”) to all transgender persons that they have to have completed full SRS (ie, the removal of one’s original sex organs and the construction of the same form of the sex organs of his or her chosen gender) for amending the sex entry on an ID card.

(2)  However, the Relevant Requirement is more disadvantageous and burdensome for FtM than MtF transsexuals seeking to amend the gender entry on their ID cards to reflect their chosen gender.

(3)  As a result, the Policy constitutes indirect discrimination under section 5(2)(b) because it applies the Relevant Requirement to each of the applicants (a biological female) which the Commissioner applies equally to a biological male but:

(a)  which is such that the proportion of biological females who can comply with it is considerably smaller than the proportion of biological males who can comply with it;

(b)  which the Commissioner cannot show to be justifiable irrespective of the sex of the person to whom it is applied; and

(c)  which is to the applicants’ (or other FtM transsexuals) detriment because they cannot comply with it.

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:

(1)  There is no evidence at all (whether qualitatively or quantitatively with figures or statistics) to show that the success rate of phalloplasty is “considerably” less than “vaginoplasty”.  In the premises, the court cannot simply base on the fact that phalloplasty is a more complicated and complex procedure than vaginoplasty to conclude that the proportion of the FtM who could successfully complete full SRS is “considerably less” than that of the MtF who could comply with it.

(2)  In any event, as pointed out by Mr Wong, the evidence of the Commissioner’s medical experts shows that the surgical procedure of “metoidioplasty” (the procedure to create a simpler form of penis which is not functional) is a very common form of penis construction in Hong Kong and has been accepted for the purpose of ID card gender entry amendment[44].  It is also the expert’s unquestioned evidence that metoidioplasty is not any more complex, risky or surgically difficult than vaginoplasty.

(3)  For this reason also, there is nothing in the evidence that could support the proposition that the proportion of the FtM who could successfully complete the full SRS is “considerably less” than that of the MtF who could 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:

“Considerable care must be taken, therefore, before applying what has been said about either the aims or the effect of other forms of disability discrimination legislation from other jurisdictions to the construction of the Act. Even more care must be taken before adopting the necessarily general forms of aspirational, as distinct from normative, statements found in international instruments as an aid to resolving the particular questions of construction which now arise. Aspirational statements are commonly concerned to state goals, not to identify the particular methods by which the stated goals will be achieved.”

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.