Marriage Rights: The Administration and the CFA

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The judges have spoken! Anyone listening? Community critics question the Administration’s new Marriage (Amendment) Bill in response to last years’ loss at the Court of Final Appeal.

As of Thursday noon, LegCo members were still debating the Supplementary Appropriation (2013-1014) Bill. This last Council meeting before summer was “unusually” lengthy. The fate of the Marriage (Amendment) Bill was still undecided but had a high chance to be passed late Thursday or today with pro-establishment forces likely voting in favour. The Bill will grant transsexuals the right to marry. But there’s a catch.

They may only marry if they have undergone full sex reassignment surgery (SRS) to remove their original genital organs and construct some form of genital organs of the opposite sex. Some groups have heavily criticised this requirement, calling it ‘forced sterilisation.” The legislation is designed to comply with the Court of Final Appeal’s (CFA) decree last July but many have questioned if the Bill has complied wholly with the court’s ruling – or rather with just a fraction of it.

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” —Article 22 of the Hong Kong Bill of Rights Ordinance.

Incoming Judicial Review
Michael Vidler represented W in the original case whereby they challenged the Administration’s stance that transsexuals could not marry under their new gender even they have undergone SRS. He’s back with a new client, Q, and will challenge the legality of the new law, assuming it has passed. Plan B is to challenge the entrenched policy which stipulates SRS as a requirement for changing a gender if the Bill is down. He thinks the Bill is designed in deliberate defiance to the CFA’s judgement and presented him with a strong case for a judicial review. Mr Vidler tells Harbour Times that it is “really unusual for the court to suspend the right of W for a year” and “clearly”, CFA expects the Administration to implement a quasi-UK Gender Recognition Act 2004 as it bluntly referred to the Act as a “compelling model” for Hong Kong. The UK Act is widely welcomed by transsexuals and human rights activists. It does not make full SRS compulsory for people to gain a new gender.

Mr Vidler says that the CFA’s judgement exhibits “strong words” for the implementation of a gender recognition law similar to UK, without the SRS requirement. Yet the Bill has fulfilled none of the above. In the court’s ruling:

“We would not seek to lay down a rule that only those who have had full gender reassignment surgery involving both excising and reconstructive genital surgery, qualify. We leave open the question whether transsexual persons who have undergone less extensive treatment might also qualify.”

It also suggests that full SRS “may have an undesirable coercive effect on persons who would not otherwise be inclined to undergo the surgery.”

A breach of human rights
Prof Sam Winter from Hong Kong University is a Director of the World Professional
Association for Transgender Health and has acted as a consultant to several UN agencies, notably the World Health Organisation (WHO). He believes the full SRS requirement infringes on at least four international conventions to which Hong Kong is a signatory: The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment; Convention on the Elimination of all forms of Discrimination against Women; International Convention on Economic, Social and Cultural Rights; and International Convention on Civil and Political Rights. International organisations including WHO, American Medical Association, UN High Commissioner for Human Rights and the UN Special Rapporteur on Torture have called on nations worldwide to ban sterilisation requirements.

Bodily change to transgender person is not a zero to one difference, there’s a very wide spectrum.

The Bill has also stirred up concerns of discrimination. In a previous interview with Harbour Times, John Erni from the Pink Alliance considered the Bill discriminatory
against transsexuals. “It [the Bill] has ignored the whole range of transgender people in that whole spectrum of bodily changes. Bodily change to transgender person is not a zero to one difference, there’s a very wide spectrum of different procedures, different stages, different risks, different economic concerns about how expensive to get the surgery… and you [the Administration] only prefer one type of transgender person to be qualified for marriage according to this new law. But there are many  other kinds of transgender person in that spectrum. So, quite clearly, when someone gets preferred over others, there’s unequal treatment which leads to discrimination.”

Professor Sam Winter, global expert on transgender issues is not amused.

In effect, the LegCo legal adviser warned against the possibility of discrimination too. It has questioned the Administration as to whether the requirement of full SRS “might be a form of sexual discrimination under Article 14 of the European Convention of Human Rights and Article 22 of the Hong Kong Bill of Rights” as it brings an adverse effect and burden for females seeking to become male, supposedly a more complex procedure than the reverse. The Administration denied such a claim.

A Gender Recognition Ordinance for HK
“The executive branch is not listening [to the judicial branch].” Mr Vidler denounces the Administration and he suspects that it is a political decision made by the Security Bureau under strong pressure from evangelical Christian groups.

There is a case, however, that the Administration is following the CFA decision.

CFA: “We would not seek to lay down a rule that only those who have had full gender reassignment surgery…qualify [to obtain a new gender].”

For the past five months, the Administration mostly followed one line of argument: “the main object of the Bill is to amend the Marriage Ordinance to implement the declaration made by the CFA to clearly reflect the right to marry under the Basic Law and the Hong Kong Bill of Rights enjoyed by post-operative transsexual persons who have gone through full SRS as in the case of W.” The Bill is only to grant transsexuals the right to marry, and this fulfils part of the court’s ruling. Other issues, such as gender recognition, are “outside the scope of the Bill.”

The Administration might have failed to meet the CFA’s “expectation” to implement a proper gender recognition law within the 12-month suspension of W’s right to marry but an inter-departmental working group established this January is currently studying the UK Gender Recognition Act 2004 and will launch consultations in the coming two years. Work is underway, and theoretically slowly moving ahead.

And while many people think of the UK Act as a liberal approach to gender recognition, Prof Winter makes it clear that this is not true and that it is a “very moderate” approach at best. Countries like Argentina and Denmark allow citizens to change their gender by filling applications and making declarations only. Of the 15,000 people who are eligible to change their genders in UK since its Act was implemented in 2004, only 4,000 have done so. “Applying it is a hassle”, he says. “People tend to do it when approaching marriage or retirement. You apply only when it is vital that you do so.”

Application forms total 14 pages and the authority demands 2 detailed reports from a medical practitioner and a psychologist, and many other documents from the applicants. The evidential requirements are strict.

Nonetheless, lawyers have been working under the auspices of the Pink Alliance to prepare a draft Gender Recognition Ordinance (GRO) for Hong Kong which will be similar to the UK model, except that the draft might allow married couples to remain in their marriage after one of the spouses has changed his or her gender.

Respect and resolution
Chairperson of Equal Opportunities Commission Dr York Chow told Harbour Times that “sexual minority [issues] is one of the things that I think can be easily resolved if we have more respect for people with different sexual orientation and particularly people with gender identity issues because these are people who have been suffering
over the years. They may have suffered in our generation and we should not let our young generation to face the same fate.”

The debate about the Bill has once again inflamed the discussion on equality and how far Hong Kong should go on LGBTI rights. “It is about allowing people to make their own decisions about their bodies. It is about respecting and giving dignity to people, allowing them to be who they are without saying ‘hey, I want to know what’s inside your pants,’” Prof Winter concludes.

The Bill might soon face Judicial Review and Mr Vidler predicts a high chance of winning again. The trend has been for court cases to go in favour of the movement in the face of government opposition. Future judges, sensing obstructionism, may not be as forgiving as the one that gave the Administration a year to amend legislation. This issue will keep the Administration and the courts busy for years to come.