On 3 April 2024 the Hong Kong Government announced that it would no longer require transgender people to undergo full sex reassignment surgery in order to change the gender markers on their ID cards.
This comes more than a year after a landmark ruling by the Court of Final Appeal. The Court unanimously held that the refusal by the Commissioner of Registration to allow two female-to-male transgender persons to change their gender marker on their ID cards before undergoing full sex reassignment surgery was unconstitutional and in violation of the Appellants' right to privacy under the Hong Kong Bill of Rights.
Under the revised policy, female-to-male transgender individuals who have removed their breasts, and male-to-female transgender individuals who have removed their penis and testes, may apply to change their genders on their ID cards. Previous guidelines required transgender men to remove their uterus and ovaries and construct a penis, and transgender women to construct a vagina following the removal of the penis and testes in order for gender reassignment to be considered ‘complete'.
Those wishing to change their gender markers must also show proof of having completed at least two years of continuous hormonal treatment and must declare that they have gender dysphoria before a gender change ID application can be made.
In its announcement, the Hong Kong Government clarified that the gender marker change will only apply to Hong Kong ID cards, and that the sex entry on a Hong Kong ID card does not represent the holder's sex as a matter of law: ‘The revised policy does not affect any other policies of the Government or the handling of any other gender-related matters under the law in Hong Kong or relevant legal procedures.'
Although the revised policy has been a welcomed development for the transgender community, it is still being widely criticised by activists and law makers for its harsh surgical, medical and reporting requirements, which some say continue to violate transgender people's rights to privacy and bodily integrity.
As this is a topic of interest not only in Hong Kong, we have set out in the sidebar the experiences of other jurisdictions on this topic, without claiming to assess the merits of the different legislative approaches.
Takeaway for Employers
Considering the difficulties that transgender employees who are in transition may face in their daily work life, it is important for employers to carefully analyse and review internal processes and rules with the aim of facilitating the transition path. To this end, and as far as feasible under the applicable legislation, employers should:
- maintain an adequate level of confidentiality and work with the employee to prepare a communication plan aimed at supporting him/her vis-a-vis colleagues, clients and others;
- allow employees in transition to change and use their name and pronoun of choice on internal documents (e.g., badge, company e-mail address, business cards, website), regardless of the name and sex on the employee's official documents and records;
- promote a neutral dress code or allow employees in transition to wear clothes or uniforms that match their gender identity;
- allow employees in transition to use toilets and changing rooms that match their gender identity or introduce gender-neutral toilets and changing rooms while also ensuring employees' privacy;
- where possible, adopt a trans-inclusive health insurance policy which provides full or partial coverage for transition-related medical procedures.
The implementation of these steps should be supplemented, in any case, by adequate awareness-raising for the entire workforce on gender identity matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.