In May last year, the government lost its fight to prevent the marriage of Ms W, a male to female transgender person. The Court of Final Appeal ruled that the registrar’s refusal to allow a marriage ceremony, on the grounds that Ms W’s birth certificate showed her to be a man, breached her right to marry under the Basic Law. The court gave the government 12 months to examine the issue and to legislate. The government has just complied by publishing its Marriage (Amendment) Bill 2014.
The government’s move to comply with the court’s ruling is welcome, as is its decision to examine the wider issues involved in transgender cases by setting up a high level inter-departmental working group, chaired by the secretary for justice.
There is one very large problem with the draft legislation, however, one which threatens to perpetuate and indeed worsen the current inhumane policy that has already been introduced into Hong Kong by administrative regulations. The government demands that transgender people submit themselves to the full range of surgery to alter their gender appearance before it gives recognition of any new gender status. This policy was introduced several years ago in the Immigration Department for the issue of ID cards. Now the government proposes in the new bill that this should be applied to marriage.
What does this mean? In effect, it puts into law a requirement for surgery, the cutting out of all the sexual organs and the construction of new ones. If that does not give you cause to think, pause a little. This is the imposition of an obligatory surgical procedure involving massive surgery and forced sterilization. Not all transgender people can face this, and not all of them want to. Most emphatically do not see that it is necessary for any recognition of an acquired gender.
Worldwide, the obligation to have such surgery is being dispensed with as more countries awake to the fact that this horrible procedure undermines bodily autonomy and involves coercive medicine. The United Nations is against it. Historically, this is unsurprising, for examples adduced from the past make us shudder. It was the warped science of eugenics and the German Nazi party that gave us the forced sterilization of social misfits. Indira Gandhi’s forced sterilization of “over-fertile” poor people helped bring down her government.
There are well-recognized alternatives to an out-dated reliance upon draconian surgery. Recognition of an acquired gender takes place over a very long period, years in fact, of counselling, psychological assessment, testing and usually hormonal and other treatments. Doctors are able, at the end of this process, to make clear recommendations for an acquired gender without cutting off body parts.
The Court of Final Appeal pointed out that, “It is contrary to principle to focus merely on biological features,” yet this is precisely what the government is proposing to do. We need to inject a trifle more humanity and compassion into this bureaucratic response. If we do not, we shall extend and increase the agony that transgender people already endure. The government needs to pause and re-think this policy before doing any more harm to those it should be seeking to protect.