Hong Kong Case Law: Decisions & Judgments

Topic

Gender recognition

Legal area

Court

6 Feb 2023

TSE HENRY EDWARD v. COMMISSIONER OF REGISTRATION

Citation

[2023] HKCFA 4
Court

Court of Final Appeal
Case number

FACV9/2022

The Policy requiring FtM transgender persons to have completed full SRS before a gender marker on an HKID card may be amended unjustifiably interferes with the appellants BOR14 privacy rights and is disproportionate because it is not no more than reasonably necessary; accordingly the Commissioners decisions refusing the applications are quashed and the Policy declared unconstitutional.
13 May 2022

TSE HENRY EDWARD v. COMMISSIONER OF REGISTRATION

Citation

[2022] HKCA 675
Court

Court of Appeal
Case number

CACV184/2019

The court concluded Questions 1,2,3,4(a) and 4(c) raise issues of great general or public importance concerning the interplay between Articles 3 and 14 HKBOR and granted leave to appeal to the Court of Final Appeal on those questions; Question 4(b) was refused as not reasonably arguable because adopting a criterion that "leaves no room for ambiguity" was explained as compatible with applying the "no more than necessary" proportionality scrutiny.
26 Jan 2022

TSE HENRY EDWARD v. COMMISSIONER OF REGISTRATION

Citation

[2022] HKCA 172
Court

Court of Appeal
Case number

CACV184/2019

The Court held the Policy is lawful: in the statutory registration context the Policy pursues a legitimate aim and full SRS is a rational, objective, irreversible and proportionate criterion (satisfying the no-more-than-necessary scrutiny) to ensure correctness of identity card particulars; the Policy strikes a reasonable balance between public interests and applicants' privacy rights under BOR 14; BOR 3 is not engaged because the Policy does not inflict treatment reaching the high severity threshold nor vitiate voluntary informed consent; and the indirect discrimination claim under SDO s5(1)…
1 Feb 2019

R v. COMMISSIONER OF REGISTRATION

Citation

[2019] HKCFI 295
Court

Court of First Instance
Case number

HCAL154/2017

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 t…
1 Feb 2019

TSE HENRY EDWARD v. COMMISSIONER OF REGISTRATION

Citation

[2019] HKCFI 295
Court

Court of First Instance
Case number

HCAL189/2017

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 in…
16 Jul 2013

W v. THE REGISTRAR OF MARRIAGES

Citation

W v. THE REGISTRAR OF MARRIAGES
Court

Court of Final Appeal
Case number

FACV4/2012

The words 'woman' and 'female' in s20(1)(d) Matrimonial Causes Ordinance and s40 Marriage Ordinance must be read to include a post-operative male-to-female transsexual person certified by an appropriate medical authority as having changed gender as a result of sex reassignment surgery; the appellant is therefore entitled to be treated as a woman and eligible to marry a man; declarations are to be suspended for 12 months to allow legislative response; costs awarded to the appellant with certificate for three counsel and taxation under the Legal Aid Regulations.
13 May 2013

W v. THE REGISTRAR OF MARRIAGES

Citation

W v. THE REGISTRAR OF MARRIAGES
Court

Court of Final Appeal
Case number

FACV4/2012

Majority held that although the domestic statutes were originally construed to adopt Corbett’s biological criteria, those criteria are now too restrictive because they ignore psychological and social factors and post‑operative medical realities and therefore, as so construed, unconstitutionally impair the essence of the right to marry; the proper remedial interpretation is to read "woman"/"female" in MO s40 and MCO s20(1)(d) to include post‑operative male‑to‑female transsexual persons certified by appropriate medical authority, with declarations suspended for 12 months to permit legislative a…
25 Nov 2011

W v. REGISTRAR OF MARRIAGES

Citation

W v. REGISTRAR OF MARRIAGES
Court

Court of Appeal
Case number

CACV266/2010

The Court held the Registrar did not misconstrue the Marriage Ordinance and related provisions: the words "woman" and "female" in the statutory context refer to biological sex determined at birth as reflected by Corbett which was given legislative recognition in Hong Kong; consequentially the Registrar's refusal was lawful and the provisions do not offend BL37, BOR19(2) or ICCPR23(2); any change to permit post-operative transsexuals to marry in acquired gender is a matter for the legislature.
5 Oct 2010

W v. REGISTRAR OF MARRIAGES

Citation

W v. REGISTRAR OF MARRIAGES
Court

Court of First Instance
Case number

HCAL120/2009

The words 'man','woman','male' and 'female' in the Marriage Ordinance and related provisions do not, on proper interpretation, encompass post-operative transsexuals; Corbett represents the present state of the law here and redefinition would effect major social and legal change better left to the legislature; there was insufficient societal or ICCPR-state consensus to require expansion of the constitutional right to marry, so no infringement of article 37 Basic Law or article 19(2) Hong Kong Bill of Rights was found.