R v. COMMISSIONER OF REGISTRATION

R v. COMMISSIONER OF REGISTRATION

The court upheld the Commissioners Policy and the challenged refusal decisions: given the broad and significant public interests that rely on the sex entry of identity cards, the completion of the specified sex reassignment surgery provides an objective, administrable criterion; applying a narrow margin of appreciation and a proportionality analysis the court concluded the Policy strikes a reasonable and fair balance between applicants private rights (privacy and physical integrity) and societal interests and is not unconstitutional or amounting to cruel, inhuman or degrading treatment in the circumstances of these cases.

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
HCAL154/2017
Procedural Posture
Judicial Review (constitutional and Administrative Law) / Final Judgment (heard Together)
Outcome
Applicants' judicial review applications dismissed; Commissioner of Registration's policy and individual refusal decisions upheld
Legal Topics
Gender Recognition, Identity Documents, Transgender Rights, Sterilisation/sex Reassignment Surgery Requirement, Right to Privacy, Physical Integrity, Proportionality and Margin of Appreciation
Source Language
EN
Constitutional Law Administrative Law Human Rights Law Family and Personal Status Law Health Law Gender Recognition Identity Documents Transgender Rights +4 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) / Final Judgment (heard Together)

Legal Issues

  1. 1 Whether the Commissioners policy requiring completion of specified sex reassignment surgery (removal of uterus and ovaries and construction of male genitalia) to change the gender entry on an ID card is constitutional under the Bill of Rights and Basic Law
  2. 2 Whether the Policy infringes the right to privacy and physical integrity and amounts to cruel, inhuman or degrading treatment
  3. 3 Whether the Policy is a proportionate and reasonable administrative measure balancing private rights of transgender persons and public interests that rely on reliable sex entries on identity documents

Ratio Decidendi

The court upheld the Commissioners Policy and the challenged refusal decisions: given the broad and significant public interests that rely on the sex entry of identity cards, the completion of the specified sex reassignment surgery provides an objective, administrable criterion; applying a narrow margin of appreciation and a proportionality analysis the court concluded the Policy strikes a reasonable and fair balance between applicants private rights (privacy and physical integrity) and societal interests and is not unconstitutional or amounting to cruel, inhuman or degrading treatment in the circumstances of these cases.

Court Disposition

Applicants' judicial review applications dismissed; Commissioner of Registration's policy and individual refusal decisions upheld

Orders

  • Judgment for the Commissioner of Registration upholding the Policy and refusing the relief sought by the applicants
  • Dismissal of HCAL 229/2015, HCAL 154/2017 and HCAL 189/2017