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CACV 183/2019 & CACV 184/2019
[2022] HKCA 172
CACV 183/2019
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 183 OF 2019
(ON APPEAL FROM HCAL NO. 229 OF 2015)
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Q |
Applicant |
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COMMISSIONER OF REGISTRATION |
Respondent |
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AND
CACV 184/2019
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 184 OF 2019
(ON APPEAL FROM HCAL NO. 189 OF 2017)
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TSE HENRY EDWARD |
Applicant |
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And |
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COMMISSIONER OF REGISTRATION |
Respondent |
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(Heard together)
Before: Hon Poon CJHC, Kwan VP and Barma JA in Court
Dates of Hearing: 13 and 14 September 2021
Date of Judgment: 26 January 2022
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JUDGMENT
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Hon Poon CJHC (giving the judgment of the Court):
1. In these appeals, it falls upon this Court to determine the constitutionality of the policy adopted by the Commissioner of Registration for transgender persons to change the sex entry stated in their Hong Kong identity cards (“the Policy”). The Policy is couched in these terms:[1]
“Generally speaking, persons who have received different forms of treatments by professional psychiatrists and clinical psychologists, including psychotherapy, hormonal treatment and real-life experience of the chosen gender role for a period of time may be recommended for sex re-assignment surgery (SRS).
Persons who have undergone the above treatments and have completed SRS should follow the below procedures and submit application together with the relevant supporting documents to reflect their change of sex on their identity cards:
(a) produce a medical proof which should indicate that the following criteria for the completion of SRS are met:
(i) for sex change from female to male
- removal of the uterus and ovaries; and
- construction of a penis or some form of a penis;
(ii) for sex change from male to female
- removal of the penis and testes; and
- construction of a vagina.
(b) in general, the medical proof should be produced by the doctor who performed the SRS in accordance with the criteria as set out above;
…”
As an exception, an applicant is not required to complete the SRS if he/she can prove that he/she cannot undergo the surgical procedures because of medical reasons (“Exception”).[2]
A. Introduction
2. The applicants, Q and Henry Edward Tse, are Hong Kong permanent residents. They are female-to-male transgender (“FtM”[3]) persons. They were registered as female at birth, which was biologically correct. Their identity cards also stated them to be female. However, they had since their youth identified themselves as male and were subsequently diagnosed with gender dysphoria. Thanks to the treatments they received over the years, including mastectomy, hormonal treatments and living a real life as male, they and their specialist doctors have confirmed that they have each completed their transition to the male gender and that they are no longer experiencing dysphoria. They therefore decided not to go through a full SRS which would involve the removal of their uterus and ovaries and the construction of a penis or some form of a penis because, from their perspective, it is unnecessary and they cannot see any therapeutic or medical reason to do so. It is however not their case that they cannot undergo a full SRS for medical reasons.
3. The applicants applied to change the sex entry on their identity card from female to male. The Commissioner refused their applications because they did not fall within the Policy. Judicial reviews ensued.
4. Before Au J (as he then was), the applicants contended that the Policy is unconstitutional on two grounds:
(1) It amounts to an arbitrary and disproportionate infringement of their right to privacy under article 14 of the Hong Kong Bill of Rights Ordinance[4] (“BOR 14”).
(2) It infringes their right not to be subjected to cruel, inhuman or degrading treatment in breach of article 3 of the Hong Kong Bill of Rights Ordinance (“BOR 3”).
They also contended that the Policy constitutes indirect discrimination under section 5(1)(b) of the Sex Discrimination Ordinance (“SDO”)[5] and is therefore unlawful under section 38(1) of the same Ordinance.
5. After a rolled-up hearing, the Judge gave the applicants leave to apply for judicial review but dismissed the reviews substantively on all the three grounds.[6]
6. In respect of BOR 14, the Judge held that the Policy satisfied the four-step proportionality test as propounded in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372:
(1) The Judge held that the aim of the Policy, namely, to establish a fair, clear, consistent, certain and objective administrative guideline to decide when a change of the sex entry on the identity card is to be accepted, is legitimate.[7]
(2) He next held that the requirements of removal of uterus and ovaries and the construction of a penis or some form of it are rationally connected to the aim of the Policy.[8]
(3) Applying the “no more than necessary” level of scrutiny, the Judge found that the restriction on the applicants’ BOR 14 rights is proportionate as it is the only workable model to achieve the aim of the Policy to have a fair, clear, consistent, certain and objective administrative guideline.[9] In particular, he found that the applicants’ case is in substance self-definition, which must be rejected as unacceptable from a legal perspective.[10]
(4) Finally, the Judge held that given the significant and wide impact on public interests, a reasonable balance had been struck by the Policy between the benefits of the requirement for full SRS and the inroads to the applicants’ right.
7. Turning to BOR 3, the Judge first pointed out that the right not to be subjected to cruel, inhuman or degrading treatment is absolute, admitting no room for justification or proportionality analysis.[11] From the parties’ contentions, he distilled the critical issue as being whether the applicants could be regarded as having given a valid and informed consent when they decided to undergo a full SRS because they had to do it in order to change the sex entry on their identity cards.[12] After answering the issue in the affirmative, he held that the Policy did not violate the applicants’ rights under BOR 3.[13]
8. In rejecting the discrimination challenge, the Judge held that in order to succeed under section 5(1)(b) of the SDO, the applicants must first prove by evidence, on a balance of probabilities, that the proportion of biological women (as FtM) who can comply with the requirement of a full SRS under the Policy is considerably smaller than the proportion of the biological men (as MtF) who can comply with it but they had failed to do so.[14] Secondly, the applicants must prove that the application of such requirement is to their detriment as they could not comply with it but, as found by the Judge, had also failed to do so.[15]
9. We will presently consider the constitutionality questions and the discrimination challenge. But to give our discussion its proper factual context, we should first describe in fuller terms the condition of gender dysphoria and its treatments, and the applicants’ circumstances.
B. Gender dysphoria and its treatments
10. Although the two terms are very often used interchangeably, for the purpose of identity, “gender” is to be distinguished from “sex”. “Sex” refers to the biological indicators of male and female (understood in the context of reproductive capacity), such as sex chromosomes, gonads, sex hormones, and non-ambiguous internal and external genitalia: see American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th edition (“DSM-5”), at p.451. “Gender” refers to the culturally and socially specific expectations of behaviour and attitude, mapped onto men and women by society, including self-definition, that is to say, what a person recognizes himself or herself to be: see Bellinger v Bellinger [2002] Fam 150 (CA), at [23]. While a person’s sex is determined at birth, it is not necessarily the case for his or her gender.
11. In the vast majority of people, their biological sex characteristics and their natal or assigned gender are congruent. They are born as either male or female according to the biological sex characteristics and assigned to that gender. They naturally and comfortably identify and experience themselves according to the assigned gender.
12. However, there are a few whose experienced or expressed gender is incongruent with their assigned gender. If a person experiences distress arising from such incongruence, that person is gender dysphoric. As stated in Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, 7th version (2012) (“SOC”) issued by the World Professional Association for Transgender Health at p.5:[16]
“Gender dysphoria refers to discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics).”
In DSM-5, ibid, a similar reference adopting assigned gender in place of sex assigned at birth is used. It goes on to note that:
“Although not all individuals will experience distress as a result of such incongruence, many are distressed if the desired physical interventions by means of hormones and/or surgery are not available.”
13. The aetiology of gender dysphoria is uncertain but it can be alleviated by suitable treatments. SOC, ibid, states:
“Treatment is available to assist people with [gender dysphoria] to explore their gender identity and find a gender role that is comfortable for them. Treatment is individualized: What helps one person alleviate gender dysphoria might be very different from what helps another person. This process may or may not involve a change in gender expression or body modifications. Medical treatment options include, for example, feminization or masculinization of the body through hormone therapy and/or surgery, which are effective in alleviating gender dysphoria and are medically necessary for many people. Gender identities and expressions are diverse, and hormones and surgery are just two of many options available to assist people with achieving comfort with self and identity.”
14. Since treatments are individualized, some may benefit from psychological or psychiatric treatment without more. Some may have to have further treatments to make their body as congruent as possible with their self-perception. The process of gender reassignment follows a series of established stages:
(1) Real life experience. Socially, the person assumes a new name and gender, informs family and friends, lives and works in the desired gender. This provides a period for transitioning into the new gender role with support and guidance from mental health professionals.
(2) Hormonal and other treatments. Following psychiatric assessment, the person may be provided with cross-gender hormone prescriptions for changing body shape and some sex characteristics, and for enhancing psychological well-being, with close monitoring of side effects. The person may also be provided with cosmetic means to aid appearance in the acquired gender.
(3) SRS. Primary surgery may be performed to remove the sexual and reproductive characteristics of the original gender, and/or to create characteristics appropriate to the new gender. Such surgery is not usually performed, however, until the person has spent a significant period living successfully in the real life experience.
15. SRS is medically recognized as an effective way to alleviate gender dysphoria. As the SOC remarks at pp.54-55:
“Surgery – particularly genital surgery – is often the last and the most considered step in the treatment process for gender dysphoria. While many transsexual, transgender, and gender-nonconforming individuals find comfort with their gender identity, role, and expression without surgery, for many others surgery is essential and medically necessary to alleviate their gender dysphoria. For the latter group, relief from gender dysphoria cannot be achieved without modification of their primary and/or secondary sex characteristics to establish greater congruence with their gender identity. Moreover, surgery can help patients feel more at ease in the presence of sex partners or in venues such as physicians’ offices, swimming pools or, or health clubs. In some settings, surgery might reduce risk of harm in the event of arrest or search by police or other authorities.
Follow-up studies have shown an undeniable beneficial effect of [SRS] on postoperative outcomes such as subjective well-being, cosmesis, and sexual function.”
16. In sum, SRS achieves the ultimate objective of treatments provided to transsexuals to alleviate their gender dysphoria by ridding the body of its intensely disliked features and making it accord, as far as possible, with the anatomy craved. 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. It is an attempt to allow the person’s body to approximate to how they feel within themselves: see Bellinger v Bellinger [2003] 2 AC 467 (HL), per Lord Nicholls, at [8] and [41]; and per Lord Hope at [59].[17] To those who require it, a full SRS is the last step to complete the transition to the acquired gender.
17. SOC at pp.57-58 further gives an overview of surgical procedures for the treatment of patients with gender dysphoria. For FtM patients, surgical procedures may include:
“1. Breast/chest surgery: subcutaneous mastectomy, creation of a male chest;
2. Genital surgery: hysterectomy/salpingo-oophorectomy, reconstruction of the fixed part of the urethra, which can be combined with a metoidioplasty or with a phalloplasty (employing a pedicled or free vascularized flap), vaginectomy, scrotoplasty, and implantation of erection and/or testicular prostheses;
3. Non-genital, non-breast surgical interventions: voice surgery (rare), liposuction, lipofilling, pectoral implants, and various aesthetic procedures.”
SOC at pp.62-64 also discusses the techniques and complications involved in breast and genital surgery including those for FtM patients.
18. SRS involves very extensive changes to a person’s physical state. Although the change of the body can never be completed because gonads cannot be constructed and chromosomal patterns remain the same, the change is irreversible. For a myriad of reasons, not all persons with gender dysphoria opt for SRS. Relevantly, some are dissuaded by the painful process of surgery with what may be an uncertain outcome, and the complications and risks involved, especially in the case of FtMs where the surgery is more complex and difficult: see W v Registrar of Marriages (2013) 16 HKCFAR 112, per Ma CJ and Ribeiro PJ, at [12]. However, that does not detract from the medical necessity of SRS or its benefits. As is emphasized by SOC at p.58, SRS as reconstructive procedures are considered medically necessary with unquestionable therapeutic results. Similarly, in its report entitled “Sexual Health, Human Rights and the Law” published in 2015, the World Health Organization, echoing SOC’s remarks at pp.54-55, observes at p.25:
“Evidence shows that in many cases, acquiring physical sex characteristics congruent with experienced gender identity (such as by undergoing gender-affirming surgery) improves health, well-being and quality of life, including better self-esteem and improved physical, mental, emotional and social functioning, and some have shown improvement in sexual function and satisfaction.”
19. Moreover, it has been observed that as individuals with gender dysphoria are becoming increasingly more accepted in society, the number of patients who feel confident enough to seek SRS is increasing in some countries: see An Update on the Surgical Treatment for Transgender Patients, by Colebunders et al in the Press of Sexual Medicine Reviews, 2016.
20. In Hong Kong, the need to provide treatments to transsexuals has long been recognized by the Government. Publicly funded medical facilities were first established in 1980 when the Sex Clinic was set up in Queen Mary Hospital. The first recorded SRS was performed in 1981. In 1986, the Gender Identity Team was set up in Queen Mary Hospital with the aim of providing assessment and counselling services to transsexuals in Hong Kong. Generally speaking, the treatments provided by public medical services to transgender persons follow the well-established procedures as outlined above. In particular, the person concerned must have at least 12 months of successful real life experience with recommendations from two mental health professionals before he or she is considered medically eligible for SRS.[18]
C. The applicants’ circumstances
C1. Q
21. Q was born in Hong Kong in 1992. He is a Hong Kong permanent resident and also a citizen of the United Kingdom. He was born as a biological female. At 11, he was issued with an identity card stating his sex as female. As he was growing up, he expressed and identified himself as a male all along despite rejection from his school, classmates and even his family. He found the experience very difficult and stressful. In around September 2011, he went to England for his secondary education. There he found a more accepting and supportive environment and was able to live in what he regarded as his real and chosen gender. His friends know and identify with his chosen male gender. In fact, his British passport states his gender as male. After finishing secondary school in England, Q moved to Canada for his tertiary education. His relationships there are all established on the basis that he is of the male gender.
22. Q first received assessment of his gender dysphoria in Hong Kong at the Prince of Wales Hospital in August 2012. He continued his psychiatric treatment and lived as a male under their supervision after he returned to the UK in 2013. In August 2014, he was certified psychiatrically fit to proceed to SRS by his attending doctor in Hong Kong. He has continuously received testosterone treatment for years and has developed a male appearance and physique. He underwent irreversible mastectomy to remove all breast tissue in August 2015.
23. Despite his gender identity as male, Q is in great fear of the invasive surgery of hysterectomy to remove his uterus and oophorectomy to remove his ovaries. He is concerned about the risks and complications which may be irreversible. He knows of persons whose surgeries had not been entirely successful and who experienced pain due to complications that arose. At the time of the proceedings below, he was concerned about the disruptions to his studies and chances of getting summer internships. He spoke of his dilemma thus:
“The irony about internships, especially if I wish to pursue those opportunities in Hong Kong, is that unless I agree to medical sterilization and major invasive surgeries, I would either have to miss out on school or miss out on summer internship programmes, in order to be able to apply to and receive an amended ID Card with the particulars that reflect my true gender identity. Otherwise, I would have to produce my current ID Card which would immediately disclose my biological gender to my colleagues and employers.”
24. Q therefore made an informed decision not to undergo SRS currently:
“… not only because there are significant health risks, for female to male, the technology is far less advanced than that of male to female surgical techniques, especially in Hong Kong as there are fewer of us.”
25. Lastly, Q confirms that he is actually comfortable with the way his post-mastectomy body is. He does not see any medical necessity to undergo medical sterilization or reconstructive organ surgery. He does not, psychiatrically speaking, need a full SRS to feel comfortable with his male identity. He does not feel less of a man because he has no external penis, or because his body still contains a womb and ovaries.
C2. Tse
26. Tse was born in Hong Kong in 1991. He is a Hong Kong permanent resident and a UK citizen. He was born a biological female. He had a very difficult childhood because of his transgenderism. His family disapproved of his gender choice. His school life in Hong Kong was not easy either because of, among other things, the pressure from his family and teachers to conform to gender norms which made it difficult for him to express himself fully as a male while growing up. After he went to the UK to further his studies, he sought medical assistance in January 2011 for his gender dysphoria. He was advised of the effects of hormone treatment and SRS. He then received hormone treatment and physical changes took place rapidly. Within weeks, he no longer looked like a female and started growing an Adam’s apple, facial hair and developed a more muscular body. In November 2012, upon his application, he was issued a UK passport stating his current name and his gender as male. After a successful bilateral mastectomy performed in the UK in December 2013, he felt more manly. In July 2016, after living as a male for 4 years, he was issued a Gender Recognition Certificate in the UK pursuant to section 9 of the Gender Recognition Act 2004.
27. Based on all the advice he had received, which he did not detail, Tse made an informed choice not to proceed with any SRS other than mastectomy. As confirmed by his attending doctor in the UK, he does not require further medical surgery to treat his gender dysphoria.
28. Tse detailed the distress, embarrassment and discrimination he has experienced while in Hong Kong, especially since returning in February 2017, because of the incongruence between his acquired gender and the female sex entry on his Hong Kong identity card. Such incidents include production of his identity card to immigration officers when entering Hong Kong; an occasion when he was stopped for a routine identity card check by a police officer where he had to tell the officer that he is a transgender person; routine humiliation by bank tellers and service providers who questioned his gender in full view and earshot of other customers of the female gender identifier in his identity card. He has also avoided using public toilets at all costs as he fears that he may be stopped by police and questioned after using the “wrong” toilet. He has even stopped all sporting activities such as basketball, track and field, swimming and working out at gym, which he enjoys, because of the changing facilities.
29. Unfortunately, since he returned to Hong Kong, Tse has experienced social dysphoria all over again. He complained that because of the Policy, he cannot change the sex entry on his identity card, which has caused him great distress.
D. BOR 14
30. We now come to the first constitutional question. BOR 14 protects an individual’s right to privacy in these terms:
“(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.”
It is a broad concept not susceptible to exhaustive definition. In the present context, it covers the right to gender identity and the right to physical integrity.
D1. Right to gender identity
31. Gender identity is one of the most crucial identities of a person. It concerns who people are and what sort of people they identify with; directs their personal development and behaviours, governs their relationship and interaction with others and the outside world; underpins most of their societal arrangements; and in many contexts, confers legal status and affects their rights and interests. As such, gender identity falls within the scope of protection of privacy under BOR 14: see YY v Turkey, Application No. 14793/08, 10 March 2015, at [56]-[60].[19]
32. However, gender identity involves more than the private interests of an individual. Society is divided and on many aspects operates on the basis of gender. Gender identity thus involves the interests of society as a whole so far as they are engaged and of others so far as they are affected. Among others, there are sociological, legal and practical considerations:
(1) From a sociological perspective, gender identity concerns behaviours, attitudes, and personal traits which, within a given society and historical period, are typically attributed to, expected from, or preferred by individuals of one gender: see Beek, TF, et al, “Gender incongruence/gender dysphoria and its classification history”, International Review of Psychiatry, at p.7.
(2) From a legal perspective, as noted, gender identity in many legal contexts confers legal status together with a bundle of rights, which may well affect others’ rights and interests.
(3) From a practical perspective, people interact with others according to their gender identity on a wide range of affairs almost on a daily basis.
33. There are occasions where the private interests of an individual’s gender identity do not align with the public interests involved. When it comes to balancing the competing interests, the court has to ensure that a fair balance is struck: see YY, ibid.
34. The Commissioner accepts that the applicants’ right of gender identity is engaged by the Policy. It is however necessary to look more closely what such right really means in the present context.
35. In some overseas jurisdictions, legislation has been enacted to confer legal recognition of gender, whereby a person’s gender identity is recognized in law and reflected in public registries and key identification documents. In the eyes of the law, a person is seen to be of his/her acquired gender, as opposed to his/her natal gender. Significant legal consequences then follow. For example, in the UK, under the Gender Recognition Act 2004, upon issuing of a gender recognition certificate, that person’s gender becomes for all purposes the acquired gender.
36. In Hong Kong, there is currently no legislation providing for the recognition of the reassigned, acquired or preferred gender of a person for all legal purposes. We note that in response to the remarks made by the Court of Final Appeal in W, ibid, the Government in January 2014 set up the Inter-Departmental Working Group on Gender Recognition (“IWG”) to consider legislation and incidental administrative measures that may be required to protect the rights of transsexual persons in all legal contexts. In June 2017, the IWG issued a consultation paper on their study and sought public views on the issues raised (“the Consultation Paper”). The IWG has yet to finalize their recommendations.
37. The sex entry on a Hong Kong identity card is not to be equated with legal recognition of the holder’s gender generally. For it is the Commissioner’s undisputed case that sex entry on an identity card, whether original or new, does not confer any legal status or recognition of the holder’s gender generally. Ever since the regime for registration of population was first introduced in 1949, the sex entry on an identity card has always been intended as an identifier of the card holder under a binary system of male/female and no more.
38. In the circumstances, the applicants realistically do not push for a legal recognition of their acquired gender in these proceedings. What they seek is to identify themselves by their acquired gender on their identity card. In her oral submissions, Ms Dinah Rose QC, appearing for the applicants,[20] referred to it as their social gender or lived gender, the way how they present themselves. Putting the applicants’ case in more precise terms, what is engaged under BOR 14 in the present context is their right to state their acquired gender in the sex entry on their identity card, thereby enabling them, when using or presenting their identity card, to express their acquired gender and conduct their life and affairs accordingly.
D2. Right to physical integrity
39. BOR 14 also covers an individual’s right to physical integrity: YY, ibid. As a full SRS involves extensive and irreversible change to an individual’s body, the applicants’ right to physical integrity is evidently engaged by the Policy.
D3. Subject to lawful restrictions
40. As is well established, the right to privacy under BOR 14 is not absolute and may be subject to lawful restrictions that satisfy the four-step proportionality test laid down in Hysan: see Kwok Wing Hang & Others v Chief Executive in Council [2020] HKCFA 42, at [100]-[101]. To recap, the test asks:
(1) if the restriction pursues a legitimate aim (Step 1);
(2) if the restriction is rationally connected to that aim (Step 2);
(3) if the restriction is proportionate to that aim by applying the appropriate scrutiny (Step 3); and
(4) even when the restriction passes Step 3, whether a reasonable balance has been struck between the societal benefits and the inroads into the individual’s privacy, focusing in particular on whether pursuit of the societal benefits has resulted in an unacceptably harsh burden on that individual (Step 4).
We next consider if the Policy satisfies each of the 4 steps of the test.
D4. Step 1 – legitimate aim
41. Before the Judge, the applicants argued that the Policy did not pursue a legitimate aim because it was wrong for the Commissioner to draw a bright line adopting a one-size-fits-all standard of criteria.[21] They now accept that the Policy serves the legitimate aim as found by the Judge.
42. In our view, it is beyond dispute that the Policy pursues a legitimate aim when it is considered in the context of the statutory regime governing registration of persons by means of identity cards.
43. The statutory regime for registration of the population is established under the Registration of Persons Ordinance (“RPO”) and the Registration of Persons Regulations (“RPR”).[22] Briefly, every person in Hong Kong, unless exempted or excluded, is required to be registered and apply for an identity card: section 3 and regulation 3(1). An applicant has to furnish his particulars, including full name, residential and business addresses in Hong Kong, the nationality which he claims, place and date of birth, sex, marital status, profession, occupation, trade or employment: regulation 4(b). After due compliance with regulation 4 and payment of fees, an identity card will be issued to the applicant: regulation 5. Every identity card shall include particulars of the holder including full name in English and Chinese, the date of birth, the number for identification purposes, date of issue of the card, a photograph of the applicant (unless he is under 11), such data, symbols, letters or numbers representing prescribed information, particulars or data within the meaning of section 7(2A)(b) of the RPO: Schedule 1 of the RPR. The data, etc covered by section 7(2A)(b) include the holder’s sex, which is represented in the identity card by way of symbols M (for male) and F (for female).[23]
44. Like any effective registration of population system, the regime under the RPO and RPR is underpinned by the correctness of the particulars of persons. Thus there is an inbuilt mechanism to ensure that the particulars of any person registered and contained in the identity cards are at all times correct:
(1) An applicant for an identity card must furnish the particulars required and shall acknowledge the correctness of the particulars furnished: regulation 4(1)(b).
(2) Any person who has submitted particulars which at any time are or have become incorrect shall report the fact to a registration officer: regulation 18(1).
(3) If by so reporting, the registration officer considers it necessary to alter the identity card, he shall order the holder to surrender his/her identity card: regulation 18(2).
(4) Such surrender shall be deemed to be an application for a replacement identity card under regulation 14: regulation 18(3). As provided for under regulation 14(2), the registration officer shall only issue a replacement identity card (a) after the identity card has been surrendered to him; (b) after the production of such evidence as he may require; and (c) after such investigation as he may consider necessary.
The registration officer must be satisfied that the new particular furnished is correct before he can issue a replacement identity card.
45. Since 1977, an identity card holder may apply to change the sex entry on the ground that the particulars submitted are or have since become incorrect under regulation 18. After the first documented instance of a locally performed SRS in 1981, an applicant for a change of the sex entry on an identity card had to produce a medical certificate certifying that his/her sexual characteristics had been altered by surgical operation. On 5 April 2012, the Commissioner issued the Policy.
46. Read in the statutory context of the registration scheme with paramount importance attached to the correctness of personal particulars, the Policy plainly aims at providing a fair, clear, consistent, certain and objective administrative guideline to: (a) inform all applicants how to make good their application for a change of the sex entry on the identity card; and (b) enable a registration officer to determine the correctness of the applicant’s changed sex, as a new particular furnished, so that a replacement identity card may be issued. That is undoubtedly a legitimate aim.
D5. Step 2 – rational connection
47. On rationality, again contrary to their position below, the applicants no longer take any issue that the Policy is rationally connected to achieving its legitimate aim.
48. The battle lines between the parties are drawn at Steps 3 and 4.
D6. Step 3 – proportionality
D6.1 Standard of scrutiny
49. By way of a respondent’s notice, Ms Monica Carss-Frisk, QC, appearing for the Commissioner,[24] complained that the Judge erred in adopting the standard of “no more than necessary” in scrutinizing the Policy. She argued that the court should afford the Commissioner a wide margin of appreciation by reference to the standard of “manifestly without reasonable foundation” by basically repeating the submissions advanced below.
50. We need not dwell on Ms Carss-Frisk’s submissions. In our view, for the reasons that he gave,[25] the Judge was entirely correct in this regard. For it is axiomatic that when the core values relating to personal or human characteristics in terms of gender identity and physical integrity are engaged, a social policy, even assuming the Policy is one which Ms Carss-Frisk has seemed to have argued, must be subject to the court’s vigilant scrutiny by the more stringent standard of “no more than necessary”: see Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, per Ma CJ at [77]. This is how we are going to examine if the Policy is proportionate to its legitimate aim and the extent of interference with the applicants’ privacy rights as described above.
D6.2 Justifications proffered by the Commissioner
51. On the Commissioner’s case, there are three main reasons why the bright line of the Policy is drawn at full SRS.
52. First, because of the considerable differences in medical opinions as to when a person may be regarded and hence certified as fully transitioned to the acquired gender, after consulting the relevant medical professionals, it was decided that a full SRS is the only workable, objective and verifiable criterion to enable a registration officer to determine the application. Anything less than that may amount to self-declaration which cannot be accepted. Or it will be left to the judgment of individual medical practitioners involved in different applications to certify if the change of sex had been completed. If the registration officers were to accept such certificates based on varying standards, it would result in arbitrariness, inconsistency in treatment and unfairness. Moreover, the registration officers are simply not in a position to determine if the standard adopted by the certifying medical practitioner should be accepted, or whether such certificate should be accepted as proof that the previously registered sex of the applicant had become incorrect.[26]
53. Second, identity cards have the obvious function of identifying the holders with the particulars contained therein. The sex entry on identity cards are used by law enforcement agencies, operators and frontline staff of various organizations and service providers, including government departments, as an indicator of the gender of the holder in many aspects of everyday life. Such aspects range from law enforcement, emergency responses, publicly funded social and residential services, social hygiene services, in-patient services in hospitals, access to sex-specific public toilets, sports, and enrolment in single-sex schools.[27] The requirement of full SRS is necessary to avoid the practical difficulties which would be caused if the external physical appearance of the holder is incongruent with the sex entry thereon.
54. Third, hormonal and psychiatric treatments that precede full SRS are not absolutely irreversible.[28] Difficult implications could arise from recognizing a change of sex as claimed in circumstances when the change is reversible, such as when a FtM pre-operative transgender person, whose sex entry on the identity card has been changed to male, stops hormonal treatment, recovers fertility, becomes pregnant, and gives birth.
D6.3 Whether the Policy is proportionate
55. Males and females bear distinctively different biological appearance and characteristics. An application to change the sex entry must necessarily be accompanied by a sufficient change in the biological appearance and characteristics. Absent legislation specifying the extent of the change required, in order to achieve the legitimate aim of the Policy, the criterion to be adopted must provide a clear, definite, consistent and objective yardstick to determine if the applicant has achieved clear resemblance to the new sex in terms of biological appearance and characteristics. It cannot admit any room for ambiguity in this regard; otherwise it would be extremely difficult, if not impossible, for a registration officer to ascertain if an applicant’s new sex is correct for the purpose of the statutory regime of registration of persons.
56. After going through a full SRS, a transgender person acquires a clear and irreversible resemblance closest to the preferred sex in terms of biological appearance and characteristics. That is the most objective and definite case of change in sex that can be readily applied by a registration officer in any given application. A full SRS thus provides a clear, definite, consistent and objective administrative criterion for the purpose of the Policy. It plainly serves its legitimate aim. Critically, is it a “no more than necessary” measure?
57. In Hysan, Ribeiro PJ at [136] explained the test in these terms:
“This must be understood to be a test of reasonable necessity. If the Court is satisfied that a significantly less intrusive and equally effective measure is available, the impugned measure may be disallowed.”
Applying the test here, the court is searching for a criterion which is significantly less intrusive than a full SRS but equally effective as a clear, definite, consistent and objective yardstick to determine if the applicant has achieved clear resemblance to the new sex in terms of biological appearance and characteristics.
58. The least intrusive measure is self-declaration without any form of treatments including surgery whereby an applicant can simply choose for himself/herself to be known or treated as male or female with no change whatsoever to the biological appearance and characteristics of their body. However, it is unacceptable precisely because it will make nonsense of the underlying biological basis of the distinction between male and female: Bellinger,per Lord Nicholls at [28]. As we understand Ms Rose’s submissions, she is not advocating such a model.
59. Stripped to its core, Ms Rose’s contention is that if any of the treatments prior to a full SRS can fully alleviate the applicants’ gender dysphoria resulting in a complete transition to the acquired gender as certified by medical professionals, they are entitled to a change of the sex entry on the identity card. Any such prior treatment can then be readily adopted by the Government as a criterion in determining the application to change the sex entry, thus achieving the legitimate aim of the Policy. Ms Rose made it abundantly clear that she was only seeking such modifications to the Policy so as to accommodate the applicants’ circumstances. She did not ask the court to draw the line as she was content to leave it to the Government.
60. It is self-evident that any step or treatment in the therapy that a transgender person receives prior to a full SRS is significantly less intrusive. If any of those prior steps or treatments can successfully alleviate that person’s gender dysphoria, it is equally effective as a full SRS in that regard. But it does not necessarily follow that it is equally effective as a full SRS in achieving the legitimate aim of the Policy.
61. To make good her core contention, Ms Rose submitted that the Policy requires production of medical proof that: (a) the applicant has received different forms of treatment by professional psychiatrists and clinical psychologists including psychotherapy, hormonal treatment and real-life experience of the chosen gender (“Condition (a)”) and (b) medical proof that the applicant has undergone full SRS, meaning that their uterus and ovaries have been removed and that a penis or some form of penis has been constructed (“Condition (b)”).
62. Based on that characterization of the Policy, Ms Rose took five points:
(1) The Judge wrongly equated Condition (a) with a process of self-certification. This finding is contrary to the evidence and unexplained. According to the evidence, the therapy for gender dysphoria consists of various clearly delineated stages, culminating in two mental health professionals certifying that an individual may opt for SRS at the penultimate stage before full SRS is carried out. The Judge gave no good reason why the only place where a line could be drawn was full SRS, or why certification by two doctors at the penultimate stage was insufficient for administrative certainty. It is self-evident that certification by a doctor or two doctors is not self-certification.
(2) According to the evidence on the practice of other jurisdictions, there are administratively workable models for recognizing gender transitions in official identification documents, which are currently adopted by various countries. In this regard, she referred to the summary table of gender recognition schemes in other countries and territories at Annex B of the Consultation Paper.[29] They show a widely available model, which has been adopted in jurisdictions all over the world, based on the certification of completion of a gender transition by one or more medical professionals, but not requiring surgery. In essence, many countries have adopted a practice based on some form of Condition (a), but do not require Condition (b). Such a model could be easily applied in the medical practice of the Hospital Authority, as well as under the legal and statutory framework of Hong Kong.
(3) Not only could such a model be applied in Hong Kong, but the evidence shows that in fact it is already being applied by virtue of the Exception, without any evidence of consequential adverse effects. The Judge’s conclusion that Condition (b) is the only workable solution is inconsistent with the existence and operation of the Exception. The Commissioner has not attempted to explain why, in circumstances in which the Exception is accommodated without any evidence that it gives rise to adverse consequences, they maintain that it would be unworkable to apply a policy making the same provision for those who do not undergo SRS because they have no therapeutic reason to do so.
(4) The Judge erred in accepting the evidence adduced by the Commissioner on the practical difficulties arising from the incongruence between the sex entry on a person’s identity card and his/her physical appearance and attributes as summarized at [53] above.
(5) The Judge failed to take into account the severity of the Policy’s interference with the applicants’ fundamental rights under BOR 3. The Judge further failed to balance this interference against the public interest. In support, Ms Rose cited a number of cases of the European Court of Human Rights (ECtHR).
63. We are unable to accept Ms Rose’s submissions.
64. First, the Policy does not, on a proper construction, divide the requirement into Condition (a) and Condition (b).
65. The Policy has been set out at [1] above. The reference to treatments prior to a full SRS in the first paragraph is only a factual statement and not a condition as such. The only requirement is stated in the second paragraph, which is a full SRS. That is repeated in the medical certificate in support of the application to change the sex entry, which only asks the medical practitioner to certify that the applicant has undergone a full SRS.[30] The rest of Ms Rose’s submissions, insofar as they are based on her mis-description of the Policy, cannot derive support from it.
66. Second, Ms Rose’s reliance on various overseas models based on a medical certification of completion of a gender transition without a full SRS does not, on a closer analysis, assist the applicants.
67. In the Consultation Paper, the IWG conducted a thorough survey of the gender recognition schemes adopted in over 110 jurisdictions. For present purpose, it is not necessary to go into their details except to note the following points:
(1) Most of the schemes are provided for by legislation. For those which are administrative schemes, most of them have statutory backing.
(2) The schemes concern gender recognition generally.
(3) As noted in the Consultation Paper at [4.2], the schemes include (a) a self-declaration model, which allows change of gender identity by means of the applicant submitting a specific declaration self-identifying in a particular gender without any medical intervention requirements, personal status restrictions or any procedural complexity;[31] (b) a surgery-free but otherwise detailed model demanding medical evidence, such as proof of diagnosis of gender dysphoria or transsexualism and proof of real life test;[32] (c) a surgery-requiring model, but with few other medical evidence requirements though including certain other restrictions such as marital status exclusion;[33] (d) a model which includes a wide range of requirements like surgery, medical diagnosis of gender dysphoria, marital status exclusion, etc.[34] In respect of the last model, some jurisdictions require in substance a full SRS.[35]
68. Those schemes of general gender recognition are relevantly different from the Policy. They are introduced to meet the specific circumstances and needs of the jurisdictions concerned, presumably after taking into account the biological, psychological, social and legal aspects of gender identity and the public interests as understood according to their own legal and societal landscapes. In short, they are all jurisdiction-specific, reflecting their own constitutional traditions and collective values in addressing the intricate subject of gender recognition. In contrast, the Policy is not a legal gender recognition scheme as such.[36] As an administrative measure, it serves the very limited purpose of enabling an applicant to apply to change the sex entry on the identity card. It only concerns the correctness of the changed sex as a newly furnished personal particular. That being its function, as Ms Rose readily accepted, the Policy does not engage the much broader and deeply controversial considerations pertaining to gender recognition generally. In the circumstances, the schemes of gender recognition in other jurisdictions do not assist to inform the proportionality of the Policy.
69. In respect of those models based on the certification of completion of a gender transition by one or more medical professionals, but not requiring a full SRS, although they are considered as satisfactory models for gender recognition after a careful consideration and balance of all the private and public interests engaged in the jurisdictions concerned, it does not necessarily mean that they are equally effective as a criterion for achieving the legitimate aim of the Policy in Hong Kong. In fact, in light of the considerable differences in the medical field as to when, short of a full SRS, a change to the other sex should be regarded as complete, different medical professionals may well adopt different standards in making the certification. Although, contrary to the Judge’s view, medical certifications do not amount to self-certification as such, the problems identified by the Commissioner at [52] above still arise. A criterion based on those models will give rise to ambiguity as to when an applicant has achieved sufficiently clear resemblance to the new sex in terms of biological appearance and characteristics. It will not be a clear, definite, consistent and objective yardstick to achieve the legitimate aim of the Policy as effectively as a full SRS.
70. Moreover, irreversibility must be a key consideration: see W, at [131]. Short of a full SRS, the risk of reversibility identified by the Commissioner at [54] above cannot be ignored. The difficult implications that could arise from recognizing a change of the sex as claimed in circumstances when the change is reversible are plainly not conducive to achieving the legitimate aim of the Policy.
71. Third, Ms Rose’s reliance on the Exception is misplaced. Insofar as it is based on her mis-characterization of the Policy, it cannot stand. Further, as submitted by Ms Carss-Frisk, it is not the case that where the Exception applies, the problems which the Policy seeks to address do not arise. The correct analysis is that, as a proper exercise of his margin of appreciation, the Commissioner is entitled to decide, on an exceptional basis, to alleviate the effect of the Policy on those falling within the Exception notwithstanding the problems.
72. Fourth, contrary to Ms Rose’s submissions, bearing in mind how identity cards are used in Hong Kong, the Commissioner is entitled to take into account the practical difficulties summarized at [53] above in formulating the Policy. As submitted by Ms Carss-Frisk, the Judge was rightly conscious of the significant problems that could (a) confront frontline staff who provide or operate various gender-specific public services and rely on identity cards to ascertain the sex of the card holder; and (b) affect other members of the public, if the transgender person’s sex entry on the identity card does not correspond with his/her physical appearance, in particular of the sex organs. Ms Rose’s criticism of the evidence and the Judge’s acceptance thereof is unwarranted.
73. Finally, we turn to the ECtHR cases relied on by Ms Rose.
74. In interpreting fundamental rights in the Basic Law and the BOR, it is entirely appropriate for the courts in Hong Kong to consult the established principles of international jurisprudence, including that of the ECtHR. After all, these fundamental rights are of universal significance. The Court of Final Appeal has consistently regarded the decisions of the ECtHR on provisions in the same or substantially the same terms of the BOR, as highly persuasive, though not binding, authority. However, there are three general caveats that must be firmly borne in mind when the courts consider the persuasiveness of the ECtHR decisions. The first two arise from the very nature and make-up of the ECtHR:
(1) The ECtHR plays a supra-national role under an international treaty, that is, the European Convention on Human Rights, in relation to member states of the Council of Europe. It therefore functions quite differently to a domestic forum, such as the Court of Final Appeal or this Court, applying human rights provisions in the context of local circumstances and landscapes. Such differences may sometimes make it inappropriate to take the path followed by the ECtHR: ZN v Secretary for Justice (2020) 23 HKCFAR 15, per Fok PJ at [60].
(2) Judges sitting in the ECtHR are elected from all the contracting states. They purport to interpret and apply the various rights of the European Convention in accordance with what they perceive to be the developments in prevailing attitudes of the contracting states. The result is a body of law which reflects the values of the contracting states, but which most certainly does not reflect those in many other parts of the world: R (Al Skeini) v Defence Secretary [2008] 1 AC 153, per Lord Rodger at [78]; cited in W, at [114]. As Lord Hughes observed in Lendore v AG of Trinidad and Tobago (PC) [2017] 1 WLR 3369, at [60], it is inherent in the concept of fundamental rights that different jurisdictions may develop the law in ways that reflect their own constitutional principles and traditions, legal procedures and collective values. After noting the significant features of ECtHR’s jurisprudence which are different from domestic courts, Lord Hughes cautioned:
“It is not the duty of the courts of independent non-party states to follow every turn in its case law as it occurs.”
So the primary consideration must remain how best the courts in Hong Kong should interpret and develop the fundamental rights in the Basic Law and the BOR according to our constitutional setting, legal landscape and societal values to meet our own circumstances and needs.
The third general caveat is that when a ECtHR decision is fact sensitive, it is hazardous to apply it to a case where the facts are materially different: ZN, ibid.
75. On a proper reading, the ECtHR cases relied on by Ms Rose do not support the applicants’ case. We will deal with the cases relating to BOR 3 in Part E. In respect of the cases on BOR 14, they can be disposed of briefly.
76. In B v France, Application No. 13343/87, 25 March 1992, the ECtHR observed at [63] that the refusal of the French authority to issue a gender congruent birth certificate to a post-operative MtF transsexual put the applicant “daily in a situation which, taken as a whole, is not compatible with respect due to her private life … even having regard to the State’s margin of appreciation.” However, as recorded at [11], the applicant had undergone a full SRS. It is not a case about recognition of a change in sex of a pre-full SRS transsexual.
77. In SV v Italy, Application No. 55216/08, 11 October 2018, the ECtHR held at [70]-[72] that the refusal by the Italian authority to grant a change of forename of a MtF transgender person prior to the completion of a full SRS failed to “take into consideration the fact that she had been undergoing a gender transition process for a number of years and that her physical appearance and social identity had long been female” and “placed the applicant … in a position in which she was apt to experience feelings of vulnerability, humiliation and anxiety”, such that the inability to obtain a change of forename amounted to a failure on the part of the State to comply with its positive obligation to secure the applicant’s right to respect for her private life under article 8 of the European Convention.
78. However, as properly analyzed by Ms Carss-Frisk, the applicant did not claim that she had been required to undergo surgery against her will or solely in order to obtain legal recognition of her gender identity. On the contrary, she sought permission to have surgery in order for her physical appearance to match her gender identity, which she was authorized to do by the local court. The gravamen of her complaint was the rigid nature of the local judicial procedure for recognizing the gender identity of transgender persons, which placed her for an unreasonable length of time (over 2.5 years) in a position where she could not amend her forename on her official documents: see [71], [72] and [75]. The issues are wholly different from those before us.
79. In X & Y v Romania, Application No. 2145/16 and 20607/16, 19 April 2021, the ECtHR held that the refusal by the Romanian authority to issue gender congruent documents to pre-operative FtM transgender persons on the grounds that persons making such requests had to furnish proof that they had undergone gender reassignment surgery even though they did not wish to do so, constituted an unjustified interference with the applicants’ right to respect for private life because it presented to them an impossible dilemma of either undergoing surgery against their better judgment or having to forego their right to respect for their physical integrity. However, it is important to note that the State had made no attempt to justify the measure based on public interest: see [128] and [164].
80. In sum, the above cases concern different legal contexts and are distinguishable on their facts. More importantly, they do not really address the proportionality issues which we have canvassed above. As such, they do not provide any useful assistance on how to resolve those issues in the local context.
81. Ms Rose also relied on Nowak’s CCPR Commentary, 3rd revised edition, at [42] on the fundamental right to found a family. She submitted that the Judge had failed to take into account that the sterilization requirement (as a result of a full SRS) in effect forces the individual to elect between the fundamental right of privacy and the right to found a family which includes procreation through artificial means. As pointed out by Ms Carss-Frisk, the difficulty of applying that general statement in Nowak’s CCPR Commentary to the applicants’ circumstances is this. Even after the hormonal treatment is completed, the individual is most likely to be sterile in any event and the retention of fertility poses significant legal, social and practical problems if the FtM transgender person becomes pregnant and bears a child, which the Judge discussed and rightly accepted.[37]
82. For the above reasons, we are not satisfied that any treatment prior to a full SRS, though significantly less intrusive, is equally effective as a criterion in achieving the legitimate aim of the Policy. Like the Judge, we hold that a full SRS satisfies the “no more than necessary” scrutiny and is proportionate to its legitimate aim.
D6.4 Step 4 – reasonable balance
83. Step 4 requires the court to examine the overall impact of the Policy and to determine whether a fair balance has been struck between the general interest and the applicants’ privacy rights being intruded upon, the requirement of such a fair balance being inherent in the protection of fundamental rights: Hysan, per Ribeiro PJ at [76]. In great majority of cases, the result arrived at after undertaking the first three inquiries is unlikely to be changed by an inquiry at Step 4. Nevertheless, the court still needs to make a value judgment as to whether the impugned measure, despite having satisfied the first three Steps, operates on the individual concerned with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving its legitimate aim: Hysan, per Ribeiro PJ at [78].
84. On public interests, as demonstrated above, what are involved in the Policy are immense and must weigh heavily on the balance. Most significantly, it furthers the fundamental purpose of the statutory regime for registration of persons by ensuring that the new sex entry approved is correct.
85. On the inroads into the applicants’ privacy rights, Ms Rose focused on the predicaments that they may face in using their identity card because of the incongruence between the sex entry and their physical appearance. We are profoundly conscious of the hardship that the applicants have to endure in this regard. The applicants may perhaps be able to find themselves relieved from their predicaments to some limited extent. Their predicaments arise only if they use or present their identity card. Those occasions would only arise on a need basis. For most of the time when they need not do so, they can continue to live in their acquired gender comfortably. Even on occasions where they need to do so, if it is permissible to use their British passport with their gender stated as male in lieu of their identity card, that may help reduce their embarrassments and distress.
86. From the applicants’ perspective, drawing the line at a full SRS may have an undesirable coercive effect on them as they would not otherwise be inclined to undergo the surgery: Bellinger, per Lord Nicholls at [41]. However, as observed by the Court of Final Appeal in W, at [136], a bright line test applied universally is inevitably likely to produce hard cases in certain circumstances unless specific provision is made.
87. Having carefully evaluated the competing interests, we are satisfied that a reasonable balance has been struck by the Policy between the general public interests and the inroads into the applicants’ privacy interests.
D7. Criticisms of the Judge’s reasoning
88. For completeness, we will shortly dispose of Ms Rose’s submissions why the Judge erred in Step 4. She took four points.
89. First, she argued that the Judge should have accorded greater significance to the applicants’ privacy rights being infringed, instead of giving heavy weight to the Policy as an administrative convenience, which is only a factor of some relevance: see Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, per Ma CJ at [93]. For the reasons we have given above, it is wrong to describe the Policy as merely a matter of administrative convenience. In any event, irrespective of the label, the Judge was correct to take into account the significant and wide impact on public interests engaged by the Policy.[38]
90. Second, Ms Rose submitted that the Judge overstated the practical difficulties that could arise if the Policy was changed. She harked back to her criticism that the Judge had erred in accepting the Commissioner’s evidence in this regard, which we have already rejected at [72] above.
91. Third, Ms Rose contended that the Judge had failed to consider the practical difficulties that arise under the Policy because of the incongruence between the sex entry on the identity card and the applicants’ external appearance. On a fair reading of his judgment, the Judge had sufficiently grappled with the evidence of those matters.[39]
92. Finally, Ms Rose criticized the Judge for adopting a majoritarian approach when he stated at [59]:
“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 … the only practical and workable administrative guidelines that would also fairly take into account the public interests … is to require the completion of SRS.”
That approach has been expressly rejected by the Court of Final Appeal in W, at [114]-[116].
93. The Judge’s remarks must be read in context. At the beginning of this part of his discussion, the Judge cited W, [114]-[116] to highlight the point that the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights.[40] He then dealt with counsel’s submissions why a full SRS would result in 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 person is given an identity card stating the chosen gender instead of the assigned gender.[41] So properly read, while [59] could have been better phrased, the Judge was clearly addressing the delicate balance between the rights of those transgender persons against the public interests engaged, which he was perfectly entitled to do.
D8. Conclusion
94. In consequence, we hold that the Policy has satisfied the proportionality test and the applicants’ challenge on BOR 14 must fail. The Judge was correct in rejecting it.
E. BOR 3
95. We now come to the second constitutional question.
E1. Applicable general principles
96. BOR 3 provides:
“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.”
The applicable general principles are well settled and may be summarized as follows.
97. First, it is well-established that the right protected by BOR 3 is absolute allowing no room for justification or proportionality analysis: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743. It covers not only actual treatment but also measures which creates a significant or serious risk of such treatment: R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, per Lord Bingham at [29]; Lubiano Nancy Almorin v Director of Immigration [2018] 1 HKLRD 1141, per Chow J (as he then was) at [57(3)].
98. Second, equally well-established is that to qualify for protection under BOR 3, the treatment in question must reach a minimum level of severity, which actually means a high level of severity: Re Northern Ireland Human Rights Commission’s Application for Judicial Review (reference by the Court of Appeal (Northern Ireland)) [2018] NI 228, per Baroness Hale at [32]; Re T (A Child) [2021] UKSC 35, per Lord Stephens at [176]. In Ubamaka, per Ribeiro PJ at [173] elaborated the threshold by referring to R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, at [53]-[55]:
“173. In R (Limbuela) v Secretary of State for the Home Department, Lord Hope of Craighead, citing decisions of the Strasbourg Court, described what was required to meet the ‘minimum level of severity’, pointing out that it generally involves actual bodily injury or intense physical or mental suffering and that its assessment is ultimately a matter of judgment:
‘... the European court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression ‘inhuman or degrading treatment or punishment’: Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121, 175, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:
‘As regards the types of “treatment” which fall within the scope of article 3 of the Convention, the court's case law refers to “ill-treatment” that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’
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. ... 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. It is here that it is open to the court to consider whether, taking all the facts into account, this test has been satisfied.”
99. Third, it follows that where a treatment does not denote any contempt or lack of respect for the personality of the person concerned, and does not debase the person, it cannot be regarded as degrading: Albert and Le Compte v Belgium (1983) 5 EHHR 533, at [22]; Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, at [91].
100. Fourth and most relevantly, in Reyes v R [2002] 2 AC 235, Lord Bingham observed that inhuman and degrading treatment has to be so excessive as to outrage standards of decency, that is, grossly disproportionate to what would have been appropriate. The concept of proportionality is also referred to in Nowak, Birk and Monina, The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd ed, 2019), at p.443:
“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. If the use of force is not necessary and in the specific circumstances of the case not proportional with the purpose achieved, it amounts to cruel or inhuman treatment.”
In a similar vein, the ECtHR in VC v Slovakia (2014) 59 EHRR 29 at [104] said:
“In order for treatment to be ‘inhuman’ or ‘degrading’, the suffering or humiliation involved must in any event go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment.”
The legitimacy of treatment does not operate as a justification of the absolute right, which is impermissible. Rather, it renders the treatment not inhuman or degrading in the first place, which means that BOR 3 is simply not engaged.
101. Where the treatment in question is a medical one, a valid consent means that the persons concerned must be informed of their state of health, the reason for the treatment and possible alternatives. They must also be given a reasonable length of time in which to take the final decision: see YY, the joint concurring opinion of Judges Keller and Spano, at [14]. The consent must also be voluntary: Jackson on Medical Law: Text, Cases & Materials, 5th edition, at pp.195 and 236.
E2. The applicants’ complaints
102. The applicants’ complaints are two-fold:
(1) A full SRS as required by the Policy exceeds the minimum level of severity for the application of BOR 3. Ms Rose argued that while the object of a full SRS is not to humiliate or debase transgender persons, it is both inhuman and degrading in its effects. When the applicants have completed their transition to the acquired gender, a full SRS serves no purpose, is not medically necessary and gives no therapeutic benefits to them. Requiring them to undergo it is a positive act of the Commissioner to put them under the intolerable dilemma which forces them to choose between suffering the discrimination, humiliation, violation of their dignity and invasion of their privacy resulting from being forced to reveal their transgender status on their identity cards, or undergoing major surgery, carrying medical risks, and including sterilization and the mutilation of their genitals, violating the physical integrity of their bodies.
(2) The consent given under the Policy for a full SRS is not voluntary. Ms Rose submitted that treatment required by the Policy is not medically necessary and has no therapeutic benefits to the applicants. It also exerts illegitimate pressure, coercing them into undergoing a full SRS, for fear of the discrimination and humiliation they would otherwise suffer. Mutilating surgery serving no therapeutic purpose would be an assault, and that no valid consent could be given to it, a fortiori where “consent” was induced by the external pressure of the Policy.
E3. Whether BOR 3 engaged
103. As seen, a full SRS is internationally recognized as a legitimate and, where applicable, necessary medical treatment, very often publicly funded, to cure gender dysphoria. To those who require it, the therapeutic benefits cannot be disputed. The applicants’ case is that their situation is altogether different. After the treatments they have received so far, they have completely transitioned to the acquired gender without a full SRS. A full SRS is hence not medically indicated or necessary and it would not have therapeutic benefits. But that concerns their transition to the acquired gender. Does it necessarily follow that a full SRS imposed by the Policy on them amounts to an inhuman or degrading treatment within the meaning of BOR 3 as contended?
104. In our view, the requirement for a full SRS cannot be viewed in isolation or other contexts, such as legal gender recognition. It must be considered in the context of the Policy and the Policy alone. As we have concluded in Part D, a full SRS is a proportionate measure to achieve the legitimate aim of the Policy. The inroads to the applicants’ privacy rights including the predicaments that they have to face in using their identity card because of the incongruence between the sex entry and their daily physical appearance, are justified. Since the Policy is legitimate, applying the proportionality principle at [100] above, it cannot be argued, as Ms Rose did, that a full SRS in the context of the Policy involves any humiliation or debasement of the personality, or shows contempt or lack of respect for the dignity of the applicants, or reaches the very high level threshold required for it to be sufficiently severe to fall within BOR 3, even when the applicants do not wish to undergo it so as to make good their application to change the sex entry on their identity card. In short, a full SRS under the Policy, does not amount to inhuman or degrading treatment within the meaning of BOR 3 when applied to the applicants.
105. Ms Rose complained that the Judge erred in relying on the finding that SRS is an accepted, legitimate and internationally recognized procedure, available to those with gender dysphoria for whom it is therapeutically indicated to enable them to complete their transition, to reason that it also offers medical benefits to some transgender persons, such as the applicants.[42] We can see the force of Ms Rose’s criticism but do not consider that materially assists the applicants. For, as demonstrated, a full SRS under the Policy as applied to the applicants does not amount to ill-treatment within the scope of BOR 3.
106. Turning to consent, there is no dispute that whether to go through a full SRS must involve an informed decision. The applicants’ real complaint is that it is not medically necessary and does not have any therapeutic value to them; and that the Policy exerted illegitimate pressure, coercing them into undergoing it, for fear of the discrimination and humiliation they would otherwise suffer.
107. However, once it is recognized that the Policy is justified as a matter of law, the dilemma that the applicants have to face if they do not opt for a full SRS cannot legally amount to coercion or illegitimate pressure, depriving them of their free will to make a conscious decision whether to go through it for the purposes of an application to change the sex entry on their identity card. It follows from this that, in the event that they opt to undergo a full SRS in the light of the Policy, their consent to do so would be real consent and could not be regarded as having been vitiated.
108. For completeness, we only need to deal with the authorities relied on by Ms Rose briefly. They include AP v France, Application Nos 79885/12, 52471/13 and 52596/13, 6 April 2017; B v France; SV v Italy; X & Y v Romania; Transgender Europe v Czech Republic (2019) 68 EHRR SE 1; R v Brown [1994] 1 AC 212; Dean v Phung [2012] NSWCA 223; White v Johnston [2015] NSWCA 18.[43] We will approach the ECtHR cases with the general caveats referred to at [74] above in mind.
109. AP is heavily relied on by Ms Rose. It concerned three transgender applicants who sought to change the sex recorded on their birth certificate under the then French law (prior to October 2016) on legal recognition of gender, which required them to substantiate their applications by demonstrating that they actually suffered from a gender identity disorder and that the change in their appearance was irreversible. Two of them relied on article 8 of the European Convention. One relied on article 8 read in conjunction of article 3.[44] The ECtHR proceeded on the basis that, at the material time, French positive law made recognition of the gender identity of transgender persons conditional on sterilization surgery or on treatment which, on account of its nature and intensity, entailed a very high probability of sterility.[45] The ECtHR went on to hold that there was a breach of article 8 because the French authority had not struck a fair balance between the general interest and the applicants’ interests. There was no separate consideration of whether there was a breach of article 3. But Ms Rose submitted that the logical conclusion from the statements of the court is that there would in fact be a breach of article 3 as well. She in particular relied on what the court held at:
“130. Medical treatment cannot be considered to be the subject of genuine consent when the fact of not submitting to it deprives the person concerned of the full exercise of his or her right to gender identity and personal development, which, as previously stated, is a fundamental aspect of the right to respect for private life.
131. Making the recognition of transgender persons’ gender identity conditional on sterilization surgery or treatment – or surgery or treatment very likely to result in sterilization – which they do not wish to undergo therefore amounts to making the full exercise of their right to respect for their private life under Article 8 of the Convention conditional on their relinquishing full exercise of their right to respect for their physical integrity as protected by that provision and also by Article 3 of the Convention.
132. The Court fully accepts that safeguarding the principle of the inalienability of civil status, ensuring the reliability and consistency of civil‑status records and, more generally, ensuring legal certainty, are in the general interest. However, it notes that, on the basis of this interpretation of the general interest, French positive law as it stood at the material time presented transgender persons not wishing to undergo full gender reassignment with an impossible dilemma. Either they underwent sterilisation surgery or treatment – or surgery or treatment very likely to result in sterilisation – against their wishes, thereby relinquishing full exercise of their right to respect for their physical integrity, which forms part of the right to respect for private life under Article 8 of the Convention; or they waived recognition of their gender identity and hence full exercise of that same right. In the Court’s view, this amounted to disrupting the fair balance which the Contracting Parties are required to maintain between the general interest and the interests of the persons concerned.”
110. Two major distinguishing features in AP have persuaded us not to follow it in the local circumstances.
111. First, the French law positively provided for gender recognition and the applicants were as a matter of law entitled to it, subject to the fulfillment of the legal requirements. In Hong Kong, there is no legislation on gender recognition. The applicants do not have any right to legal recognition of their acquired gender under the Policy or otherwise.
112. Second, the ECtHR had apparently taken into account and was influenced by the development of the law and practice of gender recognition in the Contracting States: [71]. Relevantly, it observed at [124]:
“Moreover, the Court notes that the condition in question ceased to be part of the positive law of eleven Contracting Parties, including France, between 2009 and 2016, and that similar reforms are under discussion in other Contracting Parties (see paragraph 71 above). This shows that a trend has been emerging in Europe in recent years towards abolishing this condition, driven by developments in the understanding of transgenderism.”
More specifically, France has since 12 October 2016 expressly excluded sterilization from the conditions to be fulfilled by transgender persons seeking recognition of their identity: [134]. The ECtHR was evidently applying the converging values of the Contracting States on gender recognition developed over the years. There is no such similar development in Hong Kong, whether legally or socially. Absent such development, we do not see sufficient justification to follow AP: see the caution sounded by Lord Hughes quoted at [74] above.
113. We have already explained at [77]-[79] why SV v Italy and X & Y v Romania, are inapplicable.
114. In respect of Transgender Europe v Czech Republic, Ms Rose relied on the following observations of the European Committee on Social Rights:
“77. … In certain cases transgender persons in the Czech Republic may be forced to accept to undergo a medical sterilization, a serious life altering medical intervention, with risks of side effects and complications, and which is not medically necessary, in order to have their gender identity recognised. Further, the Czech situation has a serious impact on a person’s health and ability to give free consent …
86. … the condition attached for the recognition of transgender person’s gender identity vitiates free consent, and therefore such a requirement violates physical integrity, operates contrary to the notion of human dignity and consequently cannot be considered as compatible with the right to protection of health as guaranteed by Article 11(1) of the Charter.”
115. However, that case concerned a very different context. It was about article 11 of the 1961 European Social Charter on the right to protection of health, which encompasses the right to the highest possible standard of health and right of access to health care; and not about provisions similar to BOR 3. As pointed out by Ms Carss-Frisk, the European Committee of Social Rights did not provide any detailed reasoning as to why a person is “forced” to undergo SRS for the purpose of gender recognition or why his “ability to give free consent” suffers a “serious impact”, and there was obviously no discussion on how such a person would thereby be exposed to an infringement of his BOR 3 rights.
116. Ms Rose cited R v Brown for the proposition that a person may not give legally valid consent to treatment that otherwise amounts to bodily harm, and that carries no therapeutic benefit. But the facts of that case was that the parties engaged in sado-masochistic sexual acts. It did not involve treatment of any kind. The House of Lords concluded that satisfying of sado-masochistic desires was not a good reason for an assault, and that consent was not on that basis a defence to a criminal charge.
117. Ms Rose cited Dean v Phung and White v Johnston; as illustrations that medical practitioners had been held liable to patients when rendering wholly unnecessary medical treatments, even where the patient had consented to some form of treatment. In Dean v Phung, the patient was misled into thinking that the unnecessary treatment was necessary and gave consent accordingly. There was in fact no informed consent. The question of therapeutic effect of the treatment went to its necessity and thus whether the practitioner had misrepresented the position, and not to whether it was an indispensable element of informed consent. In White v Johnston, the question was whether the consent to non-therapeutic treatment given by the patient was vitiated by the undisclosed fraudulent purpose of the dentist.
118. In the circumstances, we do not consider the applicants can derive much support from the authorities cited by Ms Rose, which concern different facts and legal contexts. We in particular agree with Ms Carss-Frisk that none of the authorities, on a closer scrutiny, support the proposition that full informed consent can only be given for necessary, therapeutic treatments.
E4. Conclusion
119. For the above reasons, BOR 3 is not engaged. The Judge was correct in rejecting the applicants’ challenge.
F. Discrimination challenge
120. Finally, we come to the applicants’ discrimination challenge.
121. 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—
(a) … ;
(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.”
To succeed in their discrimination challenge, the applicants have to satisfy both sub-paragraphs (b)(i) and (b)(iii).
F1. Section 5(1)(b)(i)
122. To satisfy section 5(1)(b)(i), an applicant must prove that the proportion of women who can comply with the relevant requirement is considerably smaller than the proportion of men who can comply with it. The necessity to do so serves a dual purpose. As explained by Potter LJ in London Underground Ltd v Edwards (No 2) [1999] ICR 494, Potter LJ at [22]:
“The first is to prescribe as the threshold for intervention a situation in which there exists a substantial and not merely marginal discriminatory effect (disparate impact) as between men and women, so that it can be clearly demonstrated that a prima facie case of (indirect) discrimination exists, sufficient to require the employer to justify the application of the condition or requirement in question. … The second is to ensure that a tribunal charged with deciding whether or not the requirement is discriminatory may be confident that its disparate impact is inherent in the application of the requirement or condition and is not simply the product of unreliable statistics or fortuitous circumstance.”
123. Under the Policy, a full SRS required of a FtM is the removal of the uterus and ovaries; and construction of a penis or some form of a penis. For a MtF, it is the removal of the penis and testes; and construction of a vagina. The applicants must show that the proportion of women (as FtM) who can comply with the relevant requirement considerably smaller than the proportion of men (as MtF) who can comply with it. The Judge held that the applicants had failed to do so (omitting the footnotes):
“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).
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. 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.”
124. Ms Rose submitted that the Judge erred because section 5(1)(b)(i) does not impose on an applicant an evidential burden to produce qualitative or quantitative evidence of discrimination or evidence that one form of surgery has more success than the other. The court is entitled to take into account its own knowledge and experience and it is undesirable that elaborate statistical evidence should be required in order for disparate impact to be proved. The Judge ought to have considered whether on the evidence, it was inherently more likely that the Policy with the SRS requirements would place FtM transgender people at a disadvantage as compared with MtF transgender people.
125. Ms Rose further submitted that there is clear evidence that there is a disparate impact on FtM transgender people. She referred to the following statistical data derived from the medical literatures as examples:
(1) For sterilisation, 8.3-12.2% of laparoscopic hysterectomy (sterilisation) surgeries will result in complications, around 4.3-4.9% would require re-operations whereas despite the extensive materials, no significant or similar risks exist with orchidectomy (removal of testes);
(2) For metoidioplasty, there are general complications (4.5% risk of post-operative hematoma, infection, UTI, urinary retention, 2.2% risk of cystitis), urethral complications (16.9% risk of fistula, 9.1% risk of stricture/stenosis), and flap complications (1.2% risk of hematoma, 4.5% risk of total flap loss);
(3) In comparison, complications in vaginoplasty such as rectovaginal fistula (abnormal connection between lower portion of rectum and constructed vagina) arises only in 1% of cases.
In contrast, no proper statistics had been provided by the Commissioner’s experts on complications arising from the relevant surgeries for FtM patients, she contended.
126. We are unable to accept Ms Rose’s submissions.
127. First, section 5(1)(b)(i) places the burden of proof squarely on the party who alleged discrimination. Some may rely on statistical evidence and some may not. It really depends on the actual circumstances of the case. Whether there is statistical evidence or not, the court should consider the totality of the evidence and apply its judicial mind with its knowledge and experience to see if the threshold is met. That is what the Judge did in evaluating the evidence before him.
128. Second, what the Judge said at [111(1)] must be understood in its context. There, the Judge was commenting that the applicants had adduced no evidence whatsoever to show that the proportion of women (as FtM) who can comply with the relevant requirement under the Policy is considerably less than the proportion of men (as MtF) who can comply with it. He was not insisting on proof by way of statistical evidence as complained.
129. Third, the Judge was correct in pointing out the gap in the evidence as he did at [111(1)].
130. Fourth, even assuming that the Judge erred and an inference could be drawn from the complexity and difficulty involved in phalloplasty that, inherently, the proportion of women (as FtM) who can comply with the relevant requirement is considerably less than the proportion of men (as MtF) who can comply with it, this does not assist the applicants.
131. Phalloplasty is not the only way to satisfy the SRS requirement. As noted by the Judge at [111(2)], metoidioplasty, the surgical procedure to create a simpler form of penis which is not functional, is equally acceptable. It is the most common form of penis construction in Hong Kong. The Hong Kong healthcare system is able to offer metoidioplasty to patients with a high success rate. And it is the undisputable evidence that metoidioplasty is not any more complex, risky or surgically difficult than vaginoplasty.[46] So, inferentially, it cannot be said that the proportion of women (as FtM) who can comply with the requirement is considerably less than the proportion of men (as MtF) who can comply with it.
132. Fifth, as submitted by Ms Carss-Frisk, the figures referred to by Ms Rose must be understood in the totality of the evidence. So understood, they must mean that complications from metoidioplasty are unlikely to be of any significantly serious or long term nature.
133. In consequence, the Judge was correct in finding against the applicants on section 5(1)(b)(i).
F2. Section 5(1)(b)(iii)
134. Under section 5(1)(b)(iii), the applicants must also prove that the requirement to go through a full SRS under the Policy is to their detriment because they cannot comply with it. According to the Judge, it means that they have to prove that they could not successfully undergo the surgical procedure even if they had wanted to do it; but they had adduced no evidence whatsoever to that effect.[47]
135. Ms Rose submitted that “can comply” for the purpose of section 5(1)(b)(iii) does not mean that a person is physically or theoretically capable of doing the relevant act, but that they can do it without undermining the protected characteristic in question, citing Mandla v Dowell Lee [1983] 2 AC 548, per Lord Fraser at pp 565F-566B in support. She went on to argue that the Judge misdirected himself in asking whether the applicants could physically comply with the requirement. He ought to have asked himself whether the Policy requiring the applicants to undergo medically non-indicated and non-therapeutic procedures so as to obtain a gender congruent identity card, would undermine their protected characteristics as fully transitioned individuals in their identified gender.
136. Ms Rose’s reliance on Mandla v Dowell Lee is misplaced. That case concerned racial discrimination under section 1(1)(b) of the English Race Relations Act 1976.[48] The plaintiffs, father and son, were Sikhs and in accordance with their tenets, wore turbans over their unshorn hair. The school refused to admit the son as a pupil at the school because the plaintiffs would not agree to the son cutting his hair and ceasing to wear a turban to comply with the school rules as to uniform. Lord Fraser at p 565D-E held that Sikhs are a group defined by a reference to ethnic origins for the purpose of the 1976 Act. He further at pp 565G-566B held that on a proper construction of section 1(1)(b)(i), “can comply” did not simply mean “can physically” so as to indicate a theoretical possibility, but “can in practice” or “can consistently with the customs and cultural conditions of the racial group”.
137. It is immediately apparent that the legal context and factual matrix in Mandla v Dowell Lee are entirely different from the present appeals. The Policy does not undermine or have the effect of undermining the applicants’ characteristics of FtM transgender persons. Such characteristics of theirs do not prevent them from complying with the SRS requirement.
138. In the present context, we agree with Ms Carss-Frisk that section 5(1)(b)(iii) requires the applicants to prove that the SRS requirement under the Policy is to their detriment because they cannot as a matter of fact comply with it. In Q’s case, he has been certified as psychiatrically fit to proceed to SRS. The point is not open to him. In Tse’s case, he has not adduced any medical evidence why he cannot undergo it. The Judge was therefore correct in finding that they had failed to satisfy section 5(1)(b)(iii).
F3. Conclusion
139. Having failed to meet the dual requirements in section 5(1)(b), the applicants’ discrimination challenge cannot stand. The Judge was correct in rejecting it.
G. Dispositions
140. For the above reasons, we dismiss the appeals.
141. We further make an order nisi that the Commissioner shall have the costs of the appeals, to be taxed if not agreed, with a certificate for two counsel. The applicants’ own costs are to be taxed in accordance with the Legal Aid Regulations.
142. Lastly, we cannot conclude this judgment without expressing our gratitude to senior counsel and their teams for the very able assistance they have rendered to the Court.
(Jeremy Poon)
Chief Judge of the
High Court |
(Susan Kwan)
Vice President |
(Aarif Barma)
Justice of Appeal |
Ms Dinah Rose QC, Mr Hectar Pun SC and Mr Earl Deng, instructed by Vidler & Co., assigned by Director of Legal Aid, for the applicants
Ms Monica Carss-Frisk QC, Mr Stewart Wong SC and Ms Bonnie Y.K. Cheng, instructed by the Department of Justice, for the respondent
[1] It is contained in an answer to Q22 on the procedures and supporting documents to be submitted for changing the sex entry on the applicant’s identity card published on 5 April 2012.
[2] See Extract of Registration of Persons, Sub-Divisional Instruction No. 1/2012, dated 3 April 2012, at §5, which states: “In regard to individual cases with justifiable medical reasons that the SRS cannot be completed, the case officer (IO) may require the applicant to provide further information on a case-by-case basis. The authority for approving these applications rest with SIO while for applications to be refused, they should be referred to CIO for decision.”
[3] The term “female-to-male” or “FtM” is used in the field of transgender healthcare to describe individuals assigned female at birth who are changing or who have changed their body and/or gender role from birth-assigned female to a more masculine body or role: see SOC (defined at [12] below), Glossary, at p.96.
[4] Cap 383.
[5] Cap 480.
[6] See [2019] HKCFI 295 (“Judgment”).
[7] Judgment, at [17], [21]-[28].
[8] Judgment, at [29].
[9] Judgment, at [32]-[72].
[10] Judgment, at [60]-[63].
[11] Judgment, at [80].
[12] Judgment, at [93].
[13] Judgment, at [94]-[104].
[14] Judgment, at [109]-[111].
[15] Judgment, at [112]-[113].
[16] The WPATH, (World Professional Association for Transgender Health), formerly known as the Harry Benjamin International Gender Dysphoria Association, is an international, multidisciplinary professional association aiming to promote evidence-based care, education, research, advocacy, public policy and respect for transgender health. The WPATH published Standards of Care, which are non-binding protocols aiming to articulate a professional consensus about the psychiatric, psychological, medical, and surgical management of gender identity disorders, and help professionals understand the parameters within which they may offer assistance to those with these conditions.
[17] Lord Hope was quoting a report referred to by Lockhart J in the Federal Court of Australia in Secretary, Department of Social Security v SRA (1993) 118 ALR 467, explaining what SRS seeks to achieve and what it cannot do.
[18] See the Affirmation of Dr Ho Pui Tat, Associate Consultant at the Kwai Chung Hospital, Hospital Authority, dated 25 July 2016, §16(g).
[19] Dealing with article 8 of the European Convention on Human Rights, which is comparable to BOR 14.
[20] Together with Mr Hectar Pun, SC and Mr Earl Deng, who appeared before the Judge below.
[21] Judgment, at [18].
[22] Cap 177 and Cap 177A respectively. Unless otherwise specified, the references to sections and regulations below mean respective provisions in the RPO and RPR.
[23] Note: the sex is stated in Chinese as either “男” or “女”.
[24] Together with Mr Stewart Wong, SC and Ms Bonnie Cheng, who appeared before the Judge below with Ms Grace Chow.
[25] Judgment, at [32]-[51].
[26] See Mr Tsui Yat’s affirmation at §§28-32 (Mr Tsui was the Assistant Secretary for Security overseeing policy matters relating to registration of persons).
[27] See Mr Tsui Yat’s affirmation at §§12(a) and 33; and Ms Wong Him Yu’s affirmation at §§6-22 (Ms Wong was a Government Counsel handling immigration related litigation and providing legal advice to various government bureaux and departments).
[28] Affirmation of Dr Ng Wan Sze Vanessa at §9 (Dr Ng was the physician-in-charge of the Endocrine Team at the Prince of Wales Hospital Sexual Disorder Clinic with speciality in Endocrinology, Diabetes & Metabolism).
[29] A summary of the schemes can be found at Annex A of the Consultation Paper.
[30] See the sample certificate at exhibit “LCH-13” to the affidavit of Mr Li Chun Heung, Acting Chief Immigration Officer, dated 14 September 2017.
[31] Examples of jurisdictions adopting this model are Argentina, Denmark, Malta and Ireland.
[32] Examples of jurisdictions adopting this model are the UK, Iceland, Germany, Spain and New York State of the USA.
[33] Examples of jurisdictions adopting this model are New South Wales (Australia), Queensland (Australia), Liechtenstein and New Brunswick (Canada).
[34] Examples of jurisdictions adopting this model are Japan, Mainland China and Finland.
[35] For example, Mainland China.
[36] Whether to adopt any such scheme as a model for legal gender recognition in Hong Kong must be a matter of legislation.
[37] Judgment, at [56]-[58].
[38] Judgment, at [77].
[39] For example, see Judgment, at [99]-[103], [118]-[121], and [127].
[40] Judgment, at [44].
[41] Judgment, at [55]-[57].
[42] Judgment, at [91]-[92].
[43] We have not dealt with each and every case cited by Ms Rose, although we have considered them carefully. We think our discussion below has sufficiently covered all the major points which Ms Rose tried to make out of the authorities. In this regard, we largely accept and where appropriate adopt Ms Carss-Frisk’s submissions on the authorities.
[44] Article 3 of the European Convention on Human Rights is comparable to BOR 3.
[45] At [120].
[46] The affirmation of Dr Chiu Tor Wo, at §§16 and 23, Dr Chiu’s second affirmation, at §20 (Dr Chiu is a consultant at the Prince of Wales Hospital with speciality in plastic surgery).
[47] Judgment, at [112]-[113].
[48] It stipulates: “A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if …(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but— (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it applied; and (iii) which is to the detriment of that other because he cannot comply with it.”
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