TOWARDS GENDER RECOGNITION

1. TOWARDS GENDER RECOGNITION Dr Athena Liu Associate Professor Department of Law University of Hong Kong 7 Sep 2013

2. Introduction • Hong Kong legislations use the term “sex” “male” “female” “man” “woman” and “gender”; not defined  • A person is assigned at birth in the binary world of “male” and “female” as either = birth certificate • X “unknown” “uncertain” • Even Pre W v Registrar of Marriages: recognized as a person of the acquired gender “for a whole range of purposes” • required to use women’s toilets, changing rooms, women’s prison • Obtain a new updated identity card • Recent decision: the meaning of the words “woman” “female” - W v Registrar of Marriages. The Court of Final Appeal recognised the right of Ms W, a post-operative male-to-female transsexual (trans woman), to marry her male partner • All the judges agreed legislative reform on gender recognition would be desirable • Some consequential legal implications

3. Landmark decision : W v Registrar of Marriages • The Court of Final Appeal rejected Corbett • In deciding whether Ms W qualifies as a “ woman” (and entitled to marry a man), the law ought in principle to consider all the circumstances relevant at the time of marriage (biological, psychological, medical and social) • The challenged statutory provisions (s 20(1)(d) of the Matrimonial Causes Ordinance (Cap 179) and s 40(2) of the Marriage Ordinance (Cap 181)) are to be read to include, within the meaning of the words “woman” and “female”, a trans person whose ‘gender has been certified by an appropriate medical authority to have changed as a result of SRS’

4. Gender Recognition –Legal Requirements? • no specific legal rule called “gender recognition rules” • The identity card - legal identity document issued by the Hong Kong Immigration Department - the Registration of Persons Ordinance (Cap 177) • holder’s name (in both Chinese and English), date of birth, sex, and place of birth • all persons aged 15 or over must carry it at all times; offence to fail to produce proof of identity on demand • ID daily life. e.g. exiting and entering into Hong Kong via immigration control points, booking leisurely and sporting facilities, banking, public library facilities, and hospital admission

5. Updating gender info on Identity card • Must report to the Immigration Department when the submitted particulars in the identity card have become incorrect (e.g. as in the case of a person who has completed SRS) • Failure to report corrections is an offence • Accepting a letter from the Hospital Authority, certifying that a person has completed SRS, as a basis for issuing a replacement identity card • Unlike the GRA, only one medical certificate is required • No requirement that the person be unmarried • No legal prohibition against a married person undergoing SRS

6. LEGAL CHALLENGES AHEAD • Time of gender recognition • ID card? OR • Gender certified by an appropriate medical authority to have changed as a result of SRS? • Gender recognition mechanism/relevant authority? • Medical certification? • change of info in ID? • Gender recognition compulsory? • Gender recognition of a married person • Who qualifies as a “woman” or a “man” for marriage (and for other purposes) --- Criteria for gender change

7. Gender recognition of a married person • Suppose H (a biological male) and W (a biological female) married. W underwent and completed SRS. • Husband (a trans woman) or wife (a trans man); de facto same sex marriage (not the same as permitting same sex marriage) • No official statistics – anecdotal/ Number tiny • Problems- Outside the purview of the law (widen legal boundary including trans community into marriage - corresponding narrowing of exclusionary boundary needed) • H dies intestate, normally wife entitles, BUT does “wife” include W who is a trans man? • Such a case to be sensitively accommodated?

8. Who qualifies as “a woman” or “a man” for marriage • The Court of Final Appeal rejected Corbett • In deciding whether W qualifies as a “woman”, the law ought, in principle, to consider all the circumstances (biological, psychological, medical and social) • Ms W had a full SRS • Less than full SRS - ought to qualify (trans man) • Flexible + less importance of reconstructive surgery and greater importance on the psychological and social dimensions

9. Who qualifies as a “woman” or a “man” for other purposes? Widow trans man • Words “man” “woman” and “male” “female” = include a trans person • Other gender-specific terms? • Husband/uncle/nephew/father (a trans woman)?Wife/ daughter/aunt/mother (a trans man)? • The Widows and Orphans Pension Ordinance - the widow of a contributor is entitled to a pension upon death of the contributor. • W (a biological female) marries H (a biological male). H dies and W (H’s widow) becomes entitled to a pension. While receiving the pension, W undergoes SRS and becomes a trans man. • Hardship: sensitively be accommodated? The court may be asked to decide

10. Parties of the opposite sex • S2 of the Mandatory Provident Fund Schemes Ordinance, Cap 485 (“MPFSO”) • “Spouse” = in relation to a person, include “a person of the opposite sex with whom the person is cohabiting in a bona fide domestic relationship as man and wife” • Juxtaposition of gender relationship - will not cover parties in a de facto same sex marriage • A (biological male) marries B (a female person). B becomes a trans man. B would not qualify as a “spouse” because his acquired gender is not of the opposite sex as compared to A. • Comprehensive law reform (UK Gender Recognition Act 2004); integrating a trans person into the law in so far as it is practically possible

11. Gender specific offences: law reform recommended already • Perpetrator/victim (including a trans man and trans woman • Ormrod J’s view (in Corbett) that a person with an artificial vagina is legally incapable of sexual intercourse • Justice Bokharydisagreed • Hong Kong Law Reform Commission’s Consultation Paper on Rape and Other Non-consensual Sexual Offences (2012) • Implementation of recommendation: a person with surgically constructed sexual organ be covered by the law

12. Exception to gender recognition? Tsos ( 祖) and Tongs( 堂) and the Small House (丁屋) Policy • These Tsos and Tongs are sometimes called Chinese customary “trusts”.   Both are ancestral land-holding for the worshipping of ancestors and for the benefits of male descendants • The beneficiaries are exclusively male from a certain ancestor (male)   • The Small House Policy: male indigenous villagers aged 18 or above descended through the male line from one of the recognized villages in the New Territories may apply for building a small house  • whether a male person by birth continues to be regarded as such (post SRS), and hence, continues to be entitled to a lifetime interest; and • whether a male descendant born to a trans person (pre- or post SRS) be regarded as a descendent “from the male line”. • Customary law: male descendent refers to biological offspring, lineage and pedigree –bloodline/patrialineal nature of traditional Chinese society

13. Conclusion • Comprehensive law reform –GRA • Structural issues • time of gender recognition • gender recognition mechanism/relevant authority? • gender recognition being compulsory • gender recognition of a married person • who qualifies as a “woman” or a “man” for marriage (other purposes) • No easy task; golden opportunity to reassess existing entrenched gender divide and achieve greater degree of gender diversity/equality (inclusiveness)