Let’s focus on gender identity for a change

Dr Jens Scherpe‘The eyes of the world were on Hong Kong; now Hong Kong has its eyes on the world.’ Principal Investigator and Organiser Dr Jens Scherpe used this pithy phrase to summarise the background to the two day conference – The Legal Status of Transsexual and Transgender Persons – which took place at the Centre for Medical Ethics & Law, at the University of Hong Kong on the 6th and 7th September 2013.

Dr Scherpe explained that the eyes of the world had been on Hong Kong in May 2013, when the Hong Kong Court of Final Appeal was preparing to rule in the case of Ms ‘W’, a post-operative transsexual woman who had been denied the right to marry her male partner by the Hong Kong Registry, and in 2010 by the High Court. During her battles Ms ‘W’ has been ably represented by her solicitor, Michael Vidler, who participated in the conference. Indeed, her case goes back five years to 2008, and is very much talked about in Hong Kong. During my stay here I have met some well-informed local people, all of whom had an opinion on this case.

And what the eyes of the world witnessed this May was the Court of Final Appeal’s ruling that Hong Kong’s Marriage Ordinance was unconstitutional in denying Ms ‘W’ the right to marry. A cause for great rejoicing you might think? Well, not yet, because there was a string attached: the Court decided to delay the implementation of the ruling to allow the Hong Kong Government sufficient time to introduce a Gender Recognition Ordinance which would overcome the bureaucratic muddle Ms ‘W’ had become caught up in.

Ms W’s ID Card – and that is probably an indivdual’s most important legal document in Hong Kong – said that she was female, as did her passport, but because there was no procedure in Hong Kong to amend her birth certificate, the government argued that she was still a male. The situation was preposterous of course. For every other purpose Hong Kong had recognised Ms ‘W’ as a woman … except when she applied to marry!  

Less than a decade ago the same situation pertained in the UK, as a consequence of the now notorious Corbett versus Corbett decision (1971), which invalidated April Ashley’s marriage to the Hon. Arthur Corbett, on the ground that Ms Ashley was still a male. It’s not widely known, but the birth certificates of post-operative transsexual people in the UK were altered prior to that case, but not afterwards (or, if they were, they were not considered valid for the purpose of marriage), until the passing of the Gender Recognition Act 2004. That Act allows a transsexual person who has transitioned (and in the UK this need not have included hormone treatment and surgery, as they may be inappropriate or inadvisable for some people) to apply for a Gender Recognition Certificate, and this, in turn, facilitates the issue of a birth certificate which corresponds with the person’s sex post-transition.

In their ruling, the Court of Final Appeal suggested that the Hong Kong government might like to look at the British Gender Recognition Act as a starting point – though it did not say, as the conference noted – that it should take it as a finishing point; for like any legislation, it is far from perfect, and could be improved. The conference, with its comprehensive reports on the legal status of transsexual and transgender people in other jurisdictions, including, Germany, Sweden, Belgium & the Netherlands, Italy, Spain, Turkey, Czech Republic, Japan, Australia, New Zealand, the USA, Ireland, Singapore as well as the UK – was a wonderful opportunity for trans people – who will, after all, be most affected by the new Gender Recognition Ordinance – legislators, advisors, and other stakeholders, to look at the models on offer around the world.

Among the issues that emerged, and that Hong Kong would need to consider, are:

  • the age at which gender recognition should be conferred
  • the issue of nationality requirement
  • the type of bureaucratic procedure to be adopted – should it include a panel – the applicant does not actually meet the panel in the UK system
  • what should the criteria be: usually medical evidence is required
  • timescale: how long does the person need to have transitioned?
  • the current questioning of surgery as an absolute requirement for recognition: the trend towards ‘treatment’ rather than surgery

There is another factor, of course, and that is the very issue that has caused all the delay in the ‘W’ case: marriage and partnerships. As Dr Scherpe stated very clearly at the start of the conference, what problematized Ms ‘W’s case was that the focus was on her relationship, instead of where it should have been, on the matter of her gender identity.

Interestingly, a similar obsession with marriage – at that time in the UK, a need to demonstrate that civil partnerships were different from marriage, and that the government was not promotiong same-sex marriage by default – severely damaged the Gender Recognition Act 2004 by introducing the requirement that married transsexual people could only obtain gender recognition at the price of divorcing their spouse, notwithstanding that they could, if they wished the relationship to continue, enter into a civil partnership.

This truly dreadful dilemma should be resolved when the Marriage (Same Sex Couples Act) 2013 comes into force, but one can’t help thinking that the needs of transsexual people have a habit of being subordinated to the needs of another agenda, and one that feels uncomfortably homophobic.

Whatever happens in the next nine months, Ms ‘W’ should be able to marry at long last – she has waited long enough for goodness sake. But let’s hope by then that a well-thought through Gender Recognition Ordinance will be in place, and that other Hong Kong transsexuals will be planning their weddings as well.

Comments

  1. says

    Interesting article and good to see someone welcoming the benefits for trans people in the Marriage (Same Sex) Act, rather than the usual carping that you cannot change from a opposite to a same sex marriage without your partner getting a say in the matter.

    • Christina Beardsley says

      Sorry about the slight delay in posting your reply Mercia – I was travelling back from Hong Kong. I’m glad you found this interesting and it has been a fascinating couple of days. I was aware of the ‘W’ case – ‘Ms W’ as she was respectively referred to at the conference – but learnt so much more by ‘being on the ground’. Here at CA England we’re also aware that we do need a post about the spousal consent issue, and my fellow trans Trustee had agreed to do it but has been unable to do so. I’ll try to get my head round it at some point. Tina

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