The Hong Kong Final Court of Appeal Wednesday heard submissions by two transgender men appealing a January 2022 High Court decision, which upheld a government policy requiring transgender persons to undergo genital reconstruction surgery before changing the sex on their identity cards. The court reserved the ruling to a later date.

In their oral submission, counsel for the appellants submitted that the routine humiliation, loss of dignity and distress caused by incongruence between the appellants’ acquired gender and the sex entry on their ID cards amount to “cruel, inhuman or degrading treatment of the Applicant,” contrary to Article 3 of the Hong Kong Bill of Rights (BOR). The counsel also argued that countries such as Ireland, the UK or Germany do not require applicant sto undergo surgery in order to change their sex entry.

In response, the Commissioner of Registration argued that discarding the policy would render the definition of transition arbitrary and inconsistent. The policy is, therefore, reasonably necessary to avoid practical and administrative difficulties in situations such as allocating gendered prisons and hospital wards.

Appellants Tse Henry-Edward and Q underwent hormone treatment, testosterone treatment and mastectomies to treat their gender dysphoria. However, the two did not undergo invasive surgery such as hysterectomy or oophorectomy. Both men applied to change their sex entry on their Hong Kong ID cards from female to male but were denied because the policy required medical proof to indicate sex change, specifically the “removal of the uterus and ovaries; and construction of a penis or some form of a penis.”

The appellants then filed a judicial review application on the grounds that the policy amounts to an “arbitrary and disproportionate infringement of the applicants’ right to privacy” protected under article 14 of BOR; infringes the applicants’ right not to be subjected to “cruel, inhuman or degrading treatment” under Article 3 of BOR; and constitutes indirect discrimination under section 5(1)(b) of the Sex Discrimination Ordinance (Cap 480) (SDO) and hence unlawful under section 38(1).

The High Court dismissed the appeal in January 2022 last year on the grounds that the policy is reasonable balances general public interests and the applicants’ privacy.