“This document was submitted to the court in the case of W v Hong Kong, in August, 2010, a case in which a post-operative transsexual was seeking a change in birth certificate”
Professor Douglas Sanders
sanders_gwb @ yahoo.ca
August 9, 2010
This document was submitted to the court in the case of W v Hong Kong, in August, 2010, a case in which a post-operative transsexual was seeking a change in birth certificate (a change which would allow marriage in the post-operative sex). Dr. Sam Winter in Hong Kong has suggested that this document should be called Document Change for Transsexuals in Southeast and East Asia, since document change (and by implication the right to marry in the post-operative sex) also appears to exist in Kyrgyzstan, Kazakhstan and Iran.
Transsexuals are able to get the designation of “sex” changed on some or all of their official personal documents in China, Hong Kong, Indonesia, Japan, Republic of Korea, Singapore and Taiwan.
Individuals who have been diagnosed with Gender Identity Disorder (GID) and have completed genital surgery are able to obtain changed documents. Draft rules on sex change have been issued by the Ministry of Health. The individual must (a) be unmarried, (b) over the age of 20, (b) without a criminal record, (c) have lived publicly as a person of the opposite sex for at least two years, (d) have desired a sex change for at least five years, and (e) have undergone a year of psychological treatment, with no effect on their GID. Local police must also agree to issue a new identification card after the sex change. Individuals have been able to marry in the new sex.
– Jian gang Zhao, head of the NGO TransChina, Kunming, Yunnan, PRC.
For post-operative transsexuals, Hong Kong will change the designation of sex on their identity card, driver’s license and passport. It will not alter the birth certificate. Without a change in the birth certificate, individuals are not able to marry in their new sex.
– Dr. Sam Winter, Lost in Transition: transpeople, transprejudice and pathology in Asia, (2009) 13 International Journal of Human Rights, 365-390 at 372.
National legislation allows a change in birth certificate after completion of sex reassignment surgery (genital surgery required). Individuals apply to a court for the alteration of documents in the same manner as for a change of name. Individuals with changed documents can marry in the new sex.
– King Oey of the NGO Arus Pelangi in Jakarta.
– Nursyahbani Katjasungkana, former member of the national legislature.
– Neha Sood, Transgender People’s Access to Sexual Health and Rights: A Study of Law and Policy in 12 Asian Countries, Asia-Pacific Resource and Research Centre for women (ARROW), Malaysia, 2009, p. 13.
Law 111 was enacted July 16, 2003, and came into force in July, 2004. A person suffering from ‘gender identity disorder’ can undergo sex reassignment surgery. Two or more physicians competent in this area must make the diagnosis. In order to gain a change in personal documents the individual must meet the following criteria:
– 20 years or older
– unmarried at present
– no children
– the body should have the external genital features of the opposite sex.
Upon approval from Family Court, the registry can be changed with respect to sex.
– Website of the Gender Recognition Panel of the UK, www. grp.gov.uk / documents/table_of_gender_recognition_schemes apr_ 2004.pdf (accessed August, 2010).
KOREA (Republic of Korea)
In June, 2006, the Korean Supreme Court ruled in favor of document change. The Supreme Court case involved very compelling facts. A 55 year old female-to-male transsexual (a) had functioned as a male from an early age, in dress and employment patterns, (b) had never married a man and had no children, (c) had been diagnosed as transsexual and undergone breast reduction, hormonal treatment, removal of female reproductive organs, and genital surgery creating a penis, (d) had surgery at a mature age, 41, (e) was in a relationship with a woman, and (f) had no criminal record or personal financial problems. Ten judges unanimously held that there should be a change to the person’s sex or gender under the provisions of the Family Register Act. The judges quoted the World Health Organizations ICD-10 of 1994 on transsexualism and the American Psychiatric Association DSM-IV of 1994 on gender identity disorder, both of which support sex reassignment surgery and hormonal treatment in appropriate cases. The court invoked provisions of the constitution:
A transsexual also should be assured of human worthiness and dignity, have the right to pursue and be entitled to a life worthy of human beings, and such rights should be protected as long as they are not against the maintenance of law and order or the public welfare (Article 10, Article 34(1), and Article 37(2) of the Constitution).
The goal was to allow a transsexual to gain “social acceptance as a normal member” of society as a person of the changed sex. Noting the legislative provisions in Germany and Japan, the majority judgment said it was up to the National Assembly to determine whether the registration change should be allowed if an individual was married or had children. Looking at Europe and Japan, the majority judgment commented that “it is the global trend to permit a transsexual to change the legal gender…”
At the same time draft legislation was introduced in the Korean legislature to allow document change for transsexuals, without the requirement of genital surgery and sterility. The legislation was introduced by a small party, was debated in committee, but never came to a vote.
On September 6th, 2006, the Court issued guidelines for changing the legal sex of transgendered individuals, to give guidance to lower court judges in subsequent cases. The compelling facts in the court case were transposed over into the guidelines, with the result that future cases had to meet much the same criteria. The guidelines suggested that a change should be allowed where there had been (a) a diagnosis of transsexualism, (b) hormonal treatment, (c) genital surgery, (d) sterility, (e) irreversibility, (f) no children (as in Japan), (g) no marriage (as in Germany and Japan), (h) discharge of military draft obligations, if any, and (i) an assessment that the change would not have a negative effect on society. The guidelines have the most restrictive rules of any country that allows document change.
A petition challenging the Supreme Court’s guidelines went to the National Human Rights Commission.
In February, 2007, the NHRCK held a seminar on the human rights of transgender persons in order to gather advice from and foster dialogue between experts and transgender petitioners who filed complaints requesting that their official documents be changed to reflect their gender identity. The petitioners called for the revision of Supreme Court Administrative Guideline No. 716, which only allows people who underwent sexual reassignment surgery, reached legal age and have no children to change their official documentation in order to reflect the sex with which they identify. Transgender persons, including the petitioners, recounted their difficulties and hardships. Experts discussed the documentation issue from social, legal, medical and human rights perspectives. The seminar laid the ground for both a review of the Supreme Court guidelines and future recommendations in light of constitutional rights.
In November, 2008, the Commission called for changes in the guidelines for document change. No action has been taken by the government on the Commission’s recommendation.
At least one decision has occurred since the guidelines in which genital surgery was not required. The individual involved was a diabetic, and his doctors had advised strongly against surgery for that reason.
A NHRCK report in 2009 quoted from the survey conducted by the DLP and LGBT NGOs.
A 2006 survey launched by a coalition of NGOs shows that transgender people face constant challenges in school and public life, suffer discrimination in recruitment and employment, and experience unstable social and family relationships. Due to their gender identity, many transgender people are subjected to insults (65.4%), sexual harassment (44.9%), and sexual assault (20.5%). Respectively 37.7% and 36.4% of the respondents said that they had endured or ignored such abuses because they wanted to avoid further discrimination or were unwilling to make their gender identity public.
This survey is remarkable, for we seem to have no equivalent research in any other country in Asia.
In September, 2009, the Supreme Court recognized a male-to-female transsexual as a women in the context of the criminal law provision on rape, though the designation of “sex” in the Family Register had not been changed in the particular case.
– Dr. Douglas Sanders, Mujigae Korea, International Convention of Asia Scholars, Daejon, Korea, August, 2009.
The Women’s Charter, available at http:// statutes.agc.gov.sg, provides that a transsexual can marry in the sex indicated on his or her national identity card. For many years, perhaps from the 1970s when SRS began in Singapore, the government began the practice of changing the sex designation on national identity cards when a surgeon certified that SRS had been completed. The birth certificate was not changed. It is treated as an historical document. The issuance of a marriage license had required the production of birth certificates. That was changed in 1996 by an amendment to the Women’s Charter making the national identity card the relevant document for a marriage license, not the birth certificate. The only condition for the change in national identity card is the medical certification of the completion of SRS. Marriage would, of course, be blocked for some one already married.
The Women’s Charter, Chapter 353, reads, in part:
12 (1) A marriage solemnized in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female shall be void.
(2) It is hereby declared that subject to sections 5, 9, 10, 11 and 22 a marriage solemnized in Singapore or elsewhere between a person who has undergone sex re-assignment procedure and any person of the opposite sex is and shall be deemed always to have been a valid marriage.
(3) For the purpose of this section
(a) the sex of any party to a marriage as stated at the time of the marriage in his or her identity card issued under the National Registration Act (Cap. 201) shall be prima facie evidence of the sex of the party; and
(b) a person who has undergone a sex re-assignment procedure shall be identified as being of the sex to which the person has been reassigned.
Transsexuals who have completed genital surgery can apply to the Family Registry Office to have the designation of sex on their citizen’s identification card changed. The person must be unmarried. The individual is expected to submit two separate psychiatric evaluations (as required by the Benjamin Standards for transsexual health) along with proof of surgery. As a result of a controversial case, the construction of a penis for a female-to-male transsexual is not required, so long as female reproductive organs are removed. Because of the requirement that surgery be completed, an individual in transition who is living full-time in the desired sex will have an identity card that does not conform to the individual’s appearance.
The Family Registry will retain the original data, and note the new change, which also affects the birth order of siblings (the first daughter may now be the second daughter, if the male-to-female transsexual is the oldest child). The individual is legally able to marry in the new sex.
– Professor Jens Damm, Free University of Berlin.
– Josephine Ho, National Central University, Taiwan.
– Yi-Fan Wang, The Actual Cases of Transgender Existence in Taiwan: Analysis and Reflections, Taiwan Bar Journal, May, 2010, 23-36 (in Chinese).