Court Observation | Kaohsiung Hsiao-Na Sex Marker Change Without Surgery Case

How the judiciary fulfills its function of protecting human rights, and the domestication and judicial implementation of international human rights conventions, are of paramount importance. Among these, under the framework of the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter CEDAW), how Taiwan's judiciary can keep pace with international human rights standards has been a subject of extensive discussion regarding transgender issues in recent years.

In September 2021, the Taipei High Administrative Court rendered a winning judgment in the Xiao-E sex marker change without surgery case assisted by the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR). The court ruled that transgender individuals can apply for a change in gender registration without being forced to undergo sex reassignment surgery.

In October 2023, the Grand Bench of the Supreme Court of Japan (comprising all 15 justices) unanimously declared the "mandatory surgery requirement" unconstitutional (with the majority of Japanese legal opinions holding that the Supreme Court's judgments on the unconstitutionality of laws have erga omnes effect), overturning the previous ruling made by the Supreme Court Petty Bench (5 justices) in 2019.

Hsiao-Na Case Court Observation

This court observation involves the Hsiao-Na case heard by the Kaohsiung High Administrative Court (hereinafter Kaohsiung High Administrative Court), concerning an application for gender registration change submitted to the household registration authority, which was rejected based on the current administrative letter ruling by the Ministry of the Interior on gender registration. After losing the case at the Kaohsiung High Administrative Court, an appeal was brought to the Supreme Administrative Court. On September 21 of this year, the Supreme Administrative Court annulled the original judgment and remanded the case back to the Kaohsiung High Administrative Court for retrial.

The reasoning of the Supreme Administrative Court's judgment explicitly states:

"An individual's continuous self-gender identity falls within the core protection scope of human dignity, the free development of personality, and personality rights guaranteed under Article 22 of the Constitution. Although the legal attribution of an individual's sex initially relied on external physiological sex characteristics at birth, when an individual's gender expression—based on their internal self-understanding and cognition—does not align with their legal sex attribution, the state should respect the people's freedom and right to self-determine their gender, provided it does not impair social order and the public interest, and recognize that individuals are entitled to apply for a change of gender in household registration pursuant to Article 21 of the Household Registration Act."

"Item 2 of the Ministry of the Interior's directive issued on November 3, 2008 (Tai-Nei-Tzu-Hu-Tzu No. 0970066240), which requires male-to-female transgender persons to undergo sex reassignment surgery involving the removal of male sexual organs such as the penis and testicles before they may apply for a gender registration change pursuant to Article 21 of the Household Registration Act, lacks legal basis and severely violates the applicant's bodily integrity, right to health, human dignity, and personality rights, thereby breaching the principle of legal reservation and the principle of proportionality...... The original trial court imposed conditions not stipulated by law regarding the application of Article 21 of the Household Registration Act, and the examples it cited all pertained to errors in original registrations, constituting an error of improper application of laws and regulations."

On December 19 at 10:30 AM, a preliminary proceeding for the first retrial of this case will be held. The JRF Gender Group will convene local students concerned with gender human rights from National University of Kaohsiung, National Kaohsiung Normal University, and Kaohsiung Medical University to jointly head to the 3rd courtroom of the Kaohsiung High Administrative Court for court observation.

Attorney Li Ling-Wei, the litigation agent for this case, will also hold a brief discussion and sharing session with the participating students after the hearing.

Q&A

Q. What is "gender marker change without surgery"?

In recent years, some transgender individuals have fought for the right to self-determine their gender through legal actions concerning gender registration changes on their national identity cards. The reason is that the current administrative letter ruling by the Ministry of the Interior forcefully requires transgender individuals applying for a gender registration change to meet two conditions:
1. A diagnostic certificate evaluated and appraised by two psychiatric specialists.
2. A certificate issued by a qualified medical institution indicating that domestic removal of male or female sexual organs has been performed.
The administrative letter ruling demands that transgender individuals not only possess a psychiatric and psychological gender diagnosis but also be forced to undergo sex reassignment surgery or gender-affirming surgery before their application for a gender registration change is granted.

However, looking across the provisions of our country's Household Registration Act, there are no stipulations whatsoever requiring "gender registration" to conform to physiological sex structures, chromosomes, or hormone-related sex characteristics—namely, physiological sex (sex). Article 21 of the Household Registration Act states: "Any alteration of items of the household registration shall be subject to Alteration Registration," and does not restrict changes to cases where physiological sex changes after birth registration. In other words, the gender referred to in our Household Registration Act is not limited to physiological sex (sex), but should also encompass psychological sex based on an individual's self-identity, or social gender (gender) constructed by social norms and cultural rules regarding the binary concepts of male/female.

Therefore, from the aforementioned perspective, some courts have held that transgender individuals can apply for gender registration changes without being forced to undergo sex reassignment surgery. For example, the Xiao-E case accepted by the Taipei High Administrative Court and assisted by TAPCPR the year before last resulted in a winning judgment. Furthermore, although the Constitutional Court declined in February of this year to hear the constitutional interpretation petition filed by transgender individuals seeking gender marker changes without surgery on procedural grounds, it emphasized that judges hearing cases are not bound by administrative letter rulings and expressed appropriate differing views. That is, judges should return to the statutory provisions of the Household Registration Act to determine whether an application for a gender registration change has a basis in law.

Q. Where can I find relevant materials?

• TAPCPR "Understanding Transgender" Website
• Taipei High Administrative Court 109 Administrative Suit Judgment No. 275 (TAPCPR Xiao-E Case)
• Supreme Court 110 Appeal Judgment No. 558 (Kaohsiung Hsiao-Na Case)
• Constitutional Court "2023 Chia-Tzu Ruling No. 4" Dismissal Ruling
• TAPCPR Press Release in Response to Constitutional Court Dismissal

Contact Person

Advocacy Specialist Hsieh Chia-Chen
jane@jrf.org.tw
04-23292372#11