Finding a voice, fighting for rights: the emergence of the transgender movement in Hong Kong¹

Abstract This paper is intended to provide a space for reflection on Hong Kong's transgender movement at its current stage, with particular reference to the objectives and activities of the Hong Kong Transgender Equality and Acceptance Movement ('TEAM'). Established in 2002, TEAM was the first organized group of transgender people and supporters in Hong Kong. First, the paper examines the emergence of the transgender movement in Hong Kong, situating the stated objectives of TEAM in the broader social, legal and political context in Hong Kong. It then considers the successes and limitations of TEAM's activities to date, measured against its objectives. Finally, it examines why Hong Kong's transgender community has not yet fought for the right to legal recognition of their gender identity, as have transgender individuals and transgender movements in many other countries around the world. In the Asia‐Pacific region these include Australia, Japan, the People's Republic of China, the Philippines, Singapore, South Korea and New Zealand. Through interviews with members of TEAM, the paper questions whether legal recognition is indeed a concern and/or priority for Hong Kong's transgender community, and, if so, what prevents Hong Kong transgender people from claiming their right to legal recognition in the courts or through the political process. Keywords: TransgendertranssexualgaylesbianTongzhirightslawlegal recognitiondiscriminationHong KongAsia Notes 1. I would like to thank in particular Amanda, Frances, Lennie, Rachael, Robin and Yvonne for sharing their time and their views with me; the anonymous reviewers for their detailed and insightful comments on my paper; Dr Karen Joe Laidler, Associate Professor, University of Hong Kong, for discussing those comments with me and encouraging me to persevere outside my usual comfort zone; Li Ngai Ling, Leona (Research Assistant, HKU), for surveying the Chinese language press; and Lisa Chang for typing up the interview transcripts. Thanks also to Dr Ho Sik‐Ying, Irene Fan, Mark King (all HKU), and Attorney Benito Cuesta, Philippines, for their various assistance. The stills from 'Inside Story: Transsexuals – Secret Lives', January 2005, are reproduced by courtesy of ATV. Finally, I would like to thank everyone at TEAM for their friendship and collaborative efforts over the years, to which I hope I have done justice in this paper. 2. In this paper, I use the term 'transgender' as an umbrella term for people who have a deep conviction that their birth sex (their physical sex, as determined at birth) is incompatible with their gender identity (their psychological or inner sense of being male or female), and who have an overwhelming desire permanently to live and function in the gender which is traditionally associated with the opposite birth sex. This includes those who cannot, or do not wish to undergo gender reassignment surgery, usually referred to as 'transsexual persons'. I do not include within the term 'transgender' those people who cross‐dress occasionally or regularly, but who do not wish permanently to adopt the gender associated with the opposite birth sex. I refer to 'transgender women' as people born physically male, who identify as women; and 'transgender men' as people born physically female, who identify as men. This is to respect their gender identity, in a way that is ignored by the frequent adoption of the opposite terminology in the press and sometimes in the academic literature. 3. In the mid‐1990s, Faye Cheung, a moderately well‐known Hong Kong Chinese actress who committed suicide in 1997, spoke openly to the press about her experiences as a transgender woman (as reported in Hong Kong Daily News, 13 May 1999), as did two long‐term expatriate transgender women, following their gender reassignment surgery (SCMP 30 May 1999, 16 March 2001). 4. I use the term 'community' loosely, to refer to the transgender community represented by Hong Kong's two groups, TEAM and Lazy Workshop. There cannot otherwise be said to be a 'community' amongst Hong Kong's transgender population. 5. The author has the documentation for five cases (one pending) on file. 6. Pop singer Harisu is reported to have been granted a legal change of name and gender by the courts. 7. In 1995, a New Zealand court recognized a post‐operative transgender man's chosen gender for the purpose of marriage (Attorney General v Otahuhu Family Court, 1995 Attorney General v Otahuhu Family Court. 1995. [1995] NZLR 603 [Google Scholar]). Later the same year, New Zealand amended its legislation to allow post‐operative transgender people to change their birth certificates, and therefore to be recognized in their chosen gender for all purposes, not just marriage. In Australia, various states and territories have also introduced legislation granting full legal recognition to post‐operative transgender people, following a series of court cases in which the gender identity of post‐operative transgender people was recognized in the context of the criminal law (R v Harris and McGuiness, 1998 R v Harris and McGuiness. 1998. 17 NSWLR 158 [Google Scholar]; R v Cogley, 1989 R v Cogley. 1989. 799 VR 799 [Google Scholar]), social security law (Secretary, Dept of Social Security v SRA, 1993 Secretary, Department of Social Security v SRA. 1993. [1993] 118 ALR 437 [Google Scholar]) and, most recently, marriage law (AG v 'Kevin and Jennifer', 2003 Attorney General for the Commonwealth v 'Kevin and Jennifer' & Human Rights and Equal Opportunities Commission. 2003. [2003] FCA 94 [Google Scholar]). However, there is as yet no federal‐wide legislation in Australia. 8. This hiatus was brought about by the conviction, in 1969, of a gynecologist for performing surgery on three transgender women, which was deemed at the time to be contrary to the Japanese Eugenic Protection Law (Higashi, 1999 Higashi, Y. 1999. 'Transgenderism in Japan: Past, Present and Future'. Sexuality in the New Millennium: Proceedings of the 14th World Congress of Sexology, Hong Kong SAR, China, 23–27 August, 1999, : 273–277. [Google Scholar]: 273). 9. The law was used for the first time on 29 July 2004, to grant a transgender woman legal recognition of her chosen gender (CBSNews.com, 28 July 2004). 10. Regretfully, the Hong Kong government has appealed the ruling. The appeal is due to be heard in the summer of 2006. 11. Apart from educational efforts and political lobbying, this campaign included five test cases brought by transgender people to national and regional courts over a 23 year period (Whittle, 2002 Whittle, Stephen. 2002. Respect and Equality: Transsexual and Transgender Rights, London: Cavendish. [Google Scholar]: xxi). 12. Both under Confucianism and Taosim, any individual deviating from defined social roles is regarded as bringing shame to parents and ancestors (Ma, 1997 Ma, Joyce. 1997. 'A systems approach to the social difficulties of transsexuals in Hong Kong'. Journal of Family Therapy, 19(1): 71–88. [Crossref], [Web of Science ®] , [Google Scholar]: 72–73). Further useful references include Chou (2001 Chou, Wah‐Shan. 2001. "'Homosexuality and Cultural Politics of Tongzhi in Chinese Societies'". In Gay and Lesbian Asia; Culture, Identity, Community, 27–46. New York: Hayworth Press. 2001 [Google Scholar]) and Wan (2001 Wan, Yanhai. 2001. "'Becoming a Gay Activist in Contemporary China'". In Gay and Lesbian Asia; Culture, Identity, Community, 47–64. New York: Hayworth Press. [Google Scholar]). 13. In this story, Mr Ma admires his new neighbor, Double Joy. Double Joy is a masseuse, who only services women. Mr Ma's wife, Tian, feigns illness so as to summon Double Joy to their bedroom to give her a massage. Tian then secretly swaps places with her husband, so that Double Joy is tricked into massaging him in the dark. Both are sexually aroused, but after Ma discovers that Double Joy has a penis, he castrates her and demands that she serve him. Double Joy's teacher and other disciples are executed, but Double Joy escapes discovery, due to her castration. She expresses her gratitude to Ma by serving him for the rest of her days (Zeitlin, 1993 Zeitlin, Judith. 1993. Historian of the Strange: Pu Songling and the Chinese Classical Tale, California: Stanford University Press. [Google Scholar]: 98). 14. For a further tale of gender transgression (described by Hinsch as 'trans‐genderal homosexuality') penned by Li Yu (1611–1679), see Hinsch, 1990 Hinsch, Bret. 1990. Passions of the Cut Sleeve: The Male Homosexual Tradition in China, Berkeley: University of California Press. [Google Scholar]: 127–129. 15. On queer language in Asia, see Leap and Boellstorff (2004 William, L. Leap and Tom, Boellstorff, eds. 2004. Speaking in Queer Tongues, USA: University of Illinois Press. [Google Scholar]). 16. The woman who took part told me about the documentary, but attempts to locate it were unsuccessful. 17. Births and Deaths Registration Ordinance, s 27. 18. Transgender people in Hong Kong cannot marry heterosexually, i.e. they cannot marry someone of the opposite gender identity to themselves, as they are legally of the same sex. However, ironically (since gay and lesbian marriages/partnerships are not otherwise permitted in Hong Kong) they can marry homosexually, i.e. they can marry someone of the same gender identity as themselves, as they are legally of the opposite sex. This anomaly has been used by at least one transgender woman in Hong Kong to marry another woman. 19. Crimes Ordinance, s 118. 20. Disability Discrimination Ordinance, s 2. 21. The Hong Kong government has announced its intention to legislate against racial discrimination by March 2006 (SCMP, 11 January 2006), having completed the bill's consultation period in February 2005 (Home Affairs Bureau, 2005 Home Affairs Bureau. 13 January 2006 2005. The Rights of the Individuals 13 January 2006, http://www.hab.gov.hk/en/policy_responsibilities /the_rights_of_the_individuals/equal.htm [Google Scholar]). The lack of legislation against racial and sexual orientation discrimination is to the consternation not only of the relevant communities, but also the United Nations human rights treaty bodies, which consistently have called for the government to legislate in these areas (Human Rights Committee, 1999 Human Rights Committee. "(1999) Concluding Observations on China (HKSAR)." United Nations Document CCPR/C/79/Add.117, 12 Nov 1999 [Google Scholar]: para 15; Committee on Economic, Social and Cultural Rights, 2001 Committee on Economic, Social and Cultural Rights. 2001. Concluding Observations on China: Hong Kong SAR 21 May 2001, United Nations Document E/C.12/1/Add.58 [Google Scholar]: para 15(c); Committee on Economic, Social and Cultural Rights, 2005 Committee on Economic, Social and Cultural Rights. 2005. Concluding Observations on People's Republic of China (including Hong Kong and Macao) 13 May 2005, United Nations Document E/C.12/1/Add.107 [Google Scholar]: para 78). 22. The organizers of the group did not respond to the author's inquiries on the nature of their membership, goals and activities, but some information was provided by TEAM members who are also members of Lazy Workshop. 23. As at 30 January 2006, the results of the survey had not been published. 24. Although European Court of Human Rights cases are not legally binding on Hong Kong courts, they are highly persuasive, due to the similarity of the rights contained in Hong Kong's Bill of Rights Ordinance. The courts' receptiveness to European Court of Human Rights' cases, and indeed other international and national jurisprudence based on human rights (including constitutional) guarantees, is evident for example in Justice Hartmann's ruling in the gay rights case (Leung: 2005 Leung, William Roy v Secretary for Justice. 24 August 2005 2005. 24 August 2005, HCAL 160/2004 [Google Scholar]). 25. Human rights guarantees are contained in the Basic Law of the Hong Kong SAR, and the Hong Kong Bill of Rights Ordinance. 26. Respectively, Secretary for Justice and Others v Chan Wah, 2000 Secretary for Justice and others v Chan Wah and others. 2000. [2000] HKLRD 641 [Google Scholar]; Equal Opportunities Commission v Director of Education, 2001 Equal Opportunities Commission v Director of Education. 2001. [2001] 2 HKLRD 690 [Google Scholar]; KYW v Secretary for Justice, 1999 KYW v Secretary for Justice. 13 January 2006 1999. 13 January 2006, DCE03/1999, at http://www.eoc.org.hk/CE/case/index.htm [Google Scholar]. 27. The author was only able to obtain information on the other cases through the kind permission of their lawyer, whom she visited in person in Manila. 28. The case involved a man who was convicted of loitering. Having cross‐dressed, he hid in the toilets of a McDonalds restaurant in order to peep at female staff. He had previously been convicted of taking photographs up the skirt of an employee in the same restaurant. The case was reported in Hong Kong Economic News 31 July 2003 and Sing Tao Daily 31 July 2003 and later as it progressed through the courts.