December 2017. The Centre for Comparative and Public Law (CCPL) in the Faculty of Law at the University of Hong Kong welcomes the opportunity to comment on the Consultation Paper published by the Hong Kong SAR Government’s Inter-departmental Working Group on Gender Recognition (IWG).
This submission identifies recent interpretative materials produced by international human rights treaty monitoring bodies that shed light on the content of relevant human rights provisions that apply to Hong Kong. The Consultation Paper, while providing an impressive and thorough overview of gender recognition schemes from around the world, does not fully evaluate whether – or which of - these schemes comply with Hong Kong’s international human rights obligations. Consistency with human rights should be the IWG’s primary consideration when reviewing submissions and ultimately proposing a gender recognition scheme suitable to the Hong Kong context. Human rights and the rule of law are core societal values in Hong Kong and cornerstones of the SAR’s constitutional framework.
Our responses to the issues raised in the Consultation Paper are summarized below. These are based on developments in international human rights law as reflected in the treaty body comments described in section II.
- International human rights law applicable to Hong Kong mandates the introduction of a gender recognition scheme that enables a person to acquire a legally recognized gender other than his or her birth gender. Response to issue 1: yes.
- The requirements discussed in the Consultation Paper related to medical treatment (including, but not limited to, sex reassignment surgery and hormone therapy), immigration, marital and parental status, age, etc., are inconsistent with human rights and should not be introduced. A self-determination model that does not necessitate medical intervention or other unjustifiable conditions would likely be the most compliant with Hong Kong’s human rights obligations. Responses to issues 2-12: no.
- The scheme should be based on legislation in order to ensure clarity and consistency. If the legislative process results in unacceptable delays, however, an administrative procedure might serve as a reasonable stopgap measure until appropriate legislation can be finalized. Response to issue 13: the gender recognition scheme should be based on a legislative framework.
- The 2004 UK Gender Recognition Act does not fully comply with international human rights law. We note, however, that the UK intends to amend the 2004 Act to remove all medical preconditions. A future revised Act may be an appropriate model for Hong Kong to consider. In the meantime, however, the Act in its current state is flawed. Response to issue 14: no.
- Introducing a dual-track scheme would be unnecessarily complicated and likely contain elements that are inconsistent with self-determination and international human rights obligations. Response to issue 16: no.
Section II of this submission notes a selection of recent, relevant interpretive comments by United Nations (UN) human rights treaty monitoring bodies that elucidate Hong Kong’s human rights duties and support these responses. These comments confirm that Hong Kong is obliged under international human rights law – and domestic constitutional law - to introduce a gender recognition scheme based on self-determination without medical or other unreasonable requirements. Section III explains that any restrictions on a right to gender recognition, including medical and other requirements, must be evaluated according to a proportionality analysis. Section IV disputes claims that gender recognition is a particularly divisive issue in Hong Kong based on recent research. Section V reflects on connections between the rights to gender recognition and equality and non-discrimination and the need to proceed simultaneously with the introduction of both gender recognition legislation and an anti-discrimination ordinance on the grounds of gender identity. Click here to download the full submission which was prepared by Kelley Loper, Director of CCPL, with the assistance of Lili Ullmann, Assistant Reserach Officer in Human Rights, CCPL.