In response to the Consultation Paper on Gender Recognition by the Inter-departmental Working Group on Gender Recognition (“IWG”) in June 2017, the Equal Opportunities Commission (EOC) has made a Submission to the IWG detailing its views on the issues raised in the Consultation Paper.

The EOC reaffirmed its support for comprehensive gender recognition legislation, as well as legislation against discrimination on the grounds of sexual orientation, gender identity and intersex status as soon as possible in the Submission. The EOC is convinced that such legislation is necessary, not only for ensuring compliance with Hong Kong’s human rights obligations – both internationally and locally – but also for establishing legal certainty in addressing the rights and obligations of transgender people.

Professor Alfred CHAN Cheung-ming, Chairperson of the EOC said, “As the statutory body tasked with eliminating discrimination and promoting equal opportunities for all in society, the EOC is legitimately concerned about the discrimination faced by transgender people in Hong Kong. As evident from the complaints lodged with the EOC and the findings of our study on legislation against discrimination on the grounds of sexual orientation, gender identity and intersex status released in January 2016, transgender people face discrimination in different public domains, including education, employment and the provision of goods, services and facilities. Such discrimination is often a result of the incongruence between their gender appearance and the sex on their identification documents, and the lack of gender recognition legislation in Hong Kong.”

“Indeed, various international human rights organisations and parties, including the United Nations High Commissioner for Human Rights, have expressed concerns about the lack of arrangements for granting legal recognition of transgender people’s identities in Member States, which infringes on transgender people’s right to privacy and right to recognition as a person before the law,” explained Professor Chan. “As such, the EOC believes that the consultation by the IWG should not be on whether a gender recognition scheme should be introduced in Hong Kong, but rather what kind of gender recognition scheme should be adopted.”

In considering the gender recognition scheme to be adopted in Hong Kong, the EOC has carefully examined the models outlined in the Consultation Paper and the legislation and practices in other countries and jurisdictions, such as Japan, Singapore, South Korea, Taiwan and mainland China, most of which require sex re-assignment surgery and hence results in sterilisation, which has been considered inhumane and degrading by the United Nations.

The EOC considers that there should be no or minimal medical requirement. Specifically, there should be no requirement for medical diagnosis, in line with the international development of depathologisation of transgenderism by the World Health Organization and other bodies. In addition, there should be no requirement for real-life test, and the existing requirement for completion of sex re-assignment surgery to change gender should be removed. Alternatively, a statutory declaration may be required from a medical practitioner or psychologist confirming that the transgender person has been receiving appropriate treatment in relation to changing gender, or living in their affirmed gender for at least several months. The person concerned may also be required to make a statutory declaration that he/she intends to live permanently in his/her affirmed gender. Such an approach is not only in line with international developments, but can also avoid possible abuse of the system.

Professor Chan said, “The EOC’s recommendations are meant to respect the full spectrum of rights of transgender people, their dignity, determination and bodily integrity. They are also in line with international best practices. More and more, requirements such as medical health diagnosis, surgery or sterilisation are considered unacceptable according to international standards, as is the lack of gender recognition procedures. Around the world, increasing numbers of jurisdictions are moving towards a more progressive model for gender recognition. As an international city, Hong Kong should act in sync with the international trends and human rights standards. We should aspire to be forward-looking and leading positive change, not just in our city but also around the region.”

“We hope that the Government would seriously consider the views of the EOC, and announce its decision and the next steps for introducing a gender recognition scheme as soon as possible, considering the fact that the Court of Final Appeal made a ruling on the W’s case back in 2013, and the IWG was established in January 2014. The Court of Final Appeal recommended the Government to conduct a comprehensive review of the relevant legislation with a view to addressing the problems facing transsexual persons in all areas of law, by drawing reference to overseas laws and practices. Meanwhile, the EOC will continue to follow up with the Government on the introduction of legislation against discrimination on the grounds of sexual orientation, gender identity and intersex status, which in our view is closely linked to legislation covering gender recognition. The EOC will also engage stakeholders and the larger community on discussion on the issues, as we strive to uphold the equality of rights of transgender people in our society.”

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The EOC’s Submission to the IWG and the Executive Summary are available on the EOC website.

Equal Opportunities Commission
2 January 2018