Two female-to-male transgender persons (“the Applicants”) challenged the policy (“the Policy”) for transgender persons to change the sex entry stated in their Hong Kong identity cards, which policy required persons making applications to change the sex entry on their identity cards to produce a medical proof which should indicate that the specified criteria for the completion of sex re-assignment surgery (“SRS”) were met.
The Judge gave the Applicants leave to apply for judicial review but dismissed the reviews. Dismissing the appeals by the Applicants, the Court of Appeal held that:
- the challenge that the Policy amounted to an unconstitutional infringement of the Applicants’ right to privacy under Article 14 of the Bill of Rights failed, since the restriction on the right to privacy, which in the present context covered the right to gender identity and the right to physical integrity, satisfied the 4-step proportionality test;2. the right not to be subjected to cruel, inhuman or degrading treatment protected by Article 3 of the Bill of Rights was not engaged; and3. the allegation that the Policy constituted indirect discrimination under section 5(1)(b) of the Sex Discrimination Ordinance (Cap 480) could not stand because the Applicants failed to show that (i) the proportion of women who could comply with the SRS requirement was considerably smaller than the proportion of men who could comply with it and that (ii) the SRS requirement was to the detriment of the Applicants because the Applicants could not as a matter of fact comply with it.
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