Tse v Commissioner of Registration
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| Tse Henry Edward v. Commissioner of Registration | |
|---|---|
 | |
| Court | Court of Final Appeal |
| Decided | 6 February 2023 |
| Citation(s) | [2023] HKCFA 4 |
Tse Henry Edward v Commissioner of Registration [2023] HKCFA 4, together with its conjoined case Q v Commissioner of Registration, are landmark cases of the Hong Kong Court of Final Appeal which ruled that the government violated the right to privacy guaranteed in Article 14 of the Hong Kong Bill of Rights in requiring full sex reassignment surgery for transgender people to change the legal gender recorded on their Hong Kong Identity Card.[1][2]
Background[edit]
The appellants are transgender men who have so identified since their youth. They each underwent treatments including psychiatric treatment, hormonal treatment, mastectomy, and real-life experience. They were medically certified to have been sufficiently attenuated to enable their social integration without the need for additional surgical procedures.
Hong Kong residents are required to carry Hong Kong Identity Cards, a form of identity document which contains the holder's name, photograph, and gender marker. The gender marker operates as an element for verifying the holder's identity, and does not signify recognition of the holder's sex as a matter of law.
The Commissioner of Registration adopted a policy requiring transgender people to have undergone full sex reassignment surgery to change the gender marker on their identity cards. The appellants applied for judicial review against the policy, alleging a violation of Article 14 of the Hong Kong Bill of Rights, which guarantees the right to privacy. Article 14 of the Hong Kong Bill of Rights is materially equivalent to Article 8 of the European Convention on Human Rights.
The appellants were unsuccessful both at the Court of First Instance and the Court of Appeal.[1]
Holding[edit]
By a unanimous decision, the Court of Final Appeal overturned the lower courts. The leading judgment was delivered jointly by Mr Justice Ribeiro PJ and Mr Justice Fok PJ.
The Court, finding that the policy concerned core values relating to intimate personal characteristics, applied the "no more than reasonably necessary" standard of scrutiny in assessing the proportionality of the Commissioner's policy. The court held that the Commissioner's policy was disproportionate to the legitimate aim of establishing a clear administrative guideline for deciding when an amendment to the gender marker was to be accepted. The Court rejected three justifications advanced by the Commissioner:[1]
- First, the Court did not accept the Commissioner's argument that full sex reassignment surgery was the only workable and verifiable criterion for amending the gender marker. The Court pointed to examples in other jurisdictions where less onerous tests are used in assessing applications to amend the gender marker.
- Second, the Court rejected the argument that full surgery was justified by a need to avoid alleged administrative problems arising from any incongruence between a transgender person's physical appearance and gender marker, pointing out that the most common cases of incongruence arise from the discordance between the gender marker and a transgender person's outward appearance, not the appearance of their genitalia.
- Third, the Court did not accept that the small risk of reversal of female-to-male transition leading to pregnancy justified the requirement for full surgery.
The policy was held unlawful as it failed the proportionality test. The Court stated, in obiter, that in any case, the policy failed to strike a reasonable balance between the rights of transgender persons and the societal benefits of the policy.
Accordingly, the Court quashed the Commissioner's decision to refuse the appellants' applications to alter the gender markers on their identity cards, and declared the Commissioner's policy of requiring full sex reassignment surgery to be unconstitutional.
References[edit]
- ↑ 1.0 1.1 1.2 "Press Summary". legalref.judiciary.hk. Retrieved 2023-02-16.
- ↑ Leung, Hillary (2023-02-06). "Hong Kong trans men win appeal against gov't ID card amendment policy in landmark ruling". Hong Kong Free Press HKFP. Retrieved 2023-02-16.
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