Court of Final Appeal says Immigration Dept’s rejection of gender change before sex reassignment surgery unconstitutional

Henry Tse, Source: BBC

6th February 2023 – (Hong Kong) Two transgender persons who had yet to complete the female-to-male transgender surgery applied to the Immigration Department to change the gender on their ID cards and they were rejected. They then filed for judicial review, but the Court of First Instance and the Court of Appeal of the High Court ruled against their favour. The two refused to accept the ruling and appealed to the Court of Final Appeal last year. After the case was heard in court earlier this year, the final judgment was made today (6th). The five judges of the Final Court ruled unanimously, and the two appellants allowed the appeal and revoked the original ruling.

The Court of Final Judgment also pointed out that the current policy stipulating that female and male transgender persons must undergo complete gender reassignment surgery as a criterion for changing the gender marker of the Hong Kong ID card violates the provisions under Article 14 of the Hong Kong Bill of Rights and is therefore unconstitutional.

The two appellants in this case are Henry Tse and another anonymous person code-named “Q”. Both the gender in their British passports or British National (Overseas) passports have been changed to male, but the Immigration Department has refused to change their gender on their Hong Kong identity cards. Both the original trial and the court of appeal pointed out that irreversible sex reassignment surgery is the most effective and feasible method to determine gender, and that the policy has balanced the interests of them and the public.