TSE HENRY EDWARD v. COMMISSIONER OF REGISTRATION

TSE HENRY EDWARD v. COMMISSIONER OF REGISTRATION

The court upheld the Commissioner’s Policy and the specific Challenged Requirements: requiring completion of the relevant SRS for a change of gender entry on an ID card is a lawful, proportionate and objectively ascertainable administrative criterion that legitimately pursues the public interest in the reliability and coherence of identity documents and related sex-specific public services; the restriction on rights is narrowly justified and does not amount to cruel, inhuman or degrading treatment because consent to SRS is capable of being free and informed and exceptions exist for medical inability.

Citation
[2019] HKCFI 295
Parties
Applicant: Q; Applicant: R; Applicant: TSE HENRY EDWARD; Putative Respondent: Commissioner of Registration
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
1 February 2019
Case Number
HCAL189/2017
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Judgment (court of First Instance)
Outcome
Judicial review applications dismissed; Commissioner’s refusal decisions and Policy upheld
Legal Topics
Gender Recognition, Identity Documents, Sex Reassignment Surgery Requirement, Right to Physical Integrity, Proportionality and Margin of Appreciation, Non Discrimination
Source Language
EN
Constitutional Law Administrative Law Human Rights Law Family and Personal Status Law Public Law Gender Recognition Identity Documents Sex Reassignment Surgery Requirement +3 more

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Parties

Q

Applicant

R

Applicant

TSE HENRY EDWARD

Applicant

Commissioner of Registration

Putative Respondent

Procedural Posture

Judicial Review (constitutional and Administrative Law) / Judgment (court of First Instance)

Legal Issues

  1. 1 Whether the Commissioner’s Policy requiring completion of sex reassignment surgery (SRS) for a female-to-male applicant to change the gender entry on an ID card is constitutional and lawful
  2. 2 Whether the Challenged Requirements violate the right to privacy and physical integrity or constitute cruel, inhuman or degrading treatment
  3. 3 Whether the Policy is a proportionate and necessary restriction in light of public interests relying on sex entries on identity documents

Ratio Decidendi

The court upheld the Commissioner’s Policy and the specific Challenged Requirements: requiring completion of the relevant SRS for a change of gender entry on an ID card is a lawful, proportionate and objectively ascertainable administrative criterion that legitimately pursues the public interest in the reliability and coherence of identity documents and related sex-specific public services; the restriction on rights is narrowly justified and does not amount to cruel, inhuman or degrading treatment because consent to SRS is capable of being free and informed and exceptions exist for medical inability.

Court Disposition

Judicial review applications dismissed; Commissioner’s refusal decisions and Policy upheld

Orders

  • Judicial review applications HCAL 229/2015, HCAL 154/2017 and HCAL 189/2017 dismissed
  • Commissioner of Registration’s Challenged Requirements and related Policy declared lawful and upheld