Court Observation｜Hsiao-Na's Gender Marker Change Without Surgery Case in Kaohsiung (Second Preparatory Proceeding)

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

In September 2021, the Taipei High Administrative Court rendered a victory in Hsiao-E's case concerning a gender marker change without surgery, which was assisted by the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR). The court held that transgender individuals may apply for a change of gender registration without being forced to undergo sex reassignment surgery.

In October 2023, the Grand Bench of the Supreme Court of Japan (consisting of all 15 justices) unanimously declared the "mandatory surgery requirement" to be unconstitutional (with mainstream Japanese views holding that a ruling of unconstitutionality rendered by the Supreme Court has erga omnes effect), overturning the previous judgment delivered by the Petty Bench of the Supreme Court (5 justices) in 2019.

Progress of Hsiao-Na's Case

This court observation concerns the Hsiao-Na case heard by the Kaohsiung High Administrative Court (hereinafter Kaohsiung High Administrative Court), which also involved an application to the household registration office for a change of gender registration that was rejected pursuant to the existing administrative letter ruling (han-shih) issued by the Ministry of the Interior regarding gender registration. After losing the case at the Kaohsiung High Administrative Court and appealing to the Supreme Administrative Court, the Supreme Administrative Court rescinded the original judgment on September 21, 2023, and remanded the case back to the Kaohsiung High Administrative Court for retrial.

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

"An individual's continuous self-gender identity falls within the core scope of protection guaranteed by Article 22 of the Constitution concerning human dignity, the free development of personality, and the right to personality. Although the legal determination of an individual's gender initially relied solely on external physiological sex characteristics at birth, when an individual's gender expression—manifested through their internal self-understanding and awareness—is inconsistent with their legally assigned gender, the State should respect the people's freedom and right to self-determine their gender, provided that it does not impair social order and the public interest, and should recognize that individuals may apply to change the gender on their household registration in accordance with Article 21 of the Household Registration Act."

"Item 2 of the Ministry of the Interior's administrative order dated November 3, 2008 (Tai-Nei-Hu-Tzu No. 0970066240), which requires that male-to-female transgender persons must undergo sex reassignment surgery to remove male sexual organs such as the penis and testicles before they may apply for a gender marker change pursuant to Article 21 of the Household Registration Act, lacks legal basis and severely infringes upon the applicant's rights to bodily autonomy, health, human dignity, and personality, in violation of the principle of legal reservation and the principle of proportionality... The original trial court added conditions not prescribed by law to the application of Article 21 of the Household Registration Act, and the examples it cited all pertained to errors in the original gender registration, constituting an error of improper application of laws and regulations."

On December 19, 2023, the court held the first preparatory proceeding following the remand. During the preparatory proceeding, the judge requested attorney Li Ling-Wei (Hsiao-Na's litigation agent) to provide administrative judgments from other gender marker change without surgery cases in Taiwan as a reference for the adjudication of this case. In addition, Attorney Li also noted that some of the foreign legislative examples concerning gender marker changes without surgery cited in the Supreme Administrative Court's judgment had changed in terms of the models adopted by certain countries, meaning the information was not completely up to date, and she indicated to the court that she would compile and submit the latest data on foreign legislative examples.

In January of this year, Attorney Li also filed a motion with the court for expert testimony, inviting Professor Ch'en I-Ch'chien from the Graduate Institute of Gender Studies at Shih Hsin University and Psychiatrist Huang Tsan-Wen to provide relevant opinions, respectively. Through the perspectives of gender studies and psychiatry, she hopes to help the judge understand the current predicaments faced by the transgender community while simultaneously broadening the legal horizon to prevent the law from continuing to persecute the transgender community.

On February 27 of this year, the court will hold the second preparatory proceeding for Hsiao-Na's case. The JRF Gender Group will once again convene local students from National Kaohsiung University, National Kaohsiung Normal University, and Kaohsiung Medical University who care about gender human rights to jointly head to Courtroom 3 of the Kaohsiung High Administrative Court for court observation. Furthermore, Attorney Li will share and discuss the case with the participating students after the session. Everyone is warmly welcome to sign up.

Q&A

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

In recent years, some transgender individuals have fought for their right to self-determine their gender through legal actions regarding the change of gender registration on their national ID cards. The reason is that the current administrative letter rulings of the Ministry of the Interior forcibly require transgender individuals to meet two conditions in order to change their gender registration:
1. Diagnostic certificates evaluated and assessed by two specialized psychiatrists.
2. A diagnostic certificate issued by a qualified medical institution documenting the domestic removal of male or female sexual organs.
Letter rulings demand not only that transgender individuals obtain a mental and psychological gender diagnosis, but also compel them to undergo sex reassignment surgery or gender-affirming surgery before a change of gender registration will be permitted.

However, looking across the provisions of our country's Household Registration Act, there are no stipulations whatsoever requiring that "gender registration" must conform to physiological sex structures, chromosomal characteristics, or hormone-related gender traits—the so-called physiological sex. Article 21 of the Household Registration Act states: "When there is a change in registered household registration items, an application for a change registration shall be made," and it certainly does not restrict applications solely to instances where physiological sex changes after birth registration. In other words, the gender referred to in our country's Household Registration Act is not limited to physiological sex, but should also encompass psychological sex rooted in an individual's self-identity, or social gender (gender) constructed by social norms and cultural rules regarding the binary concepts of male and female.

Therefore, under the aforementioned perspective, some courts have taken the view that transgender individuals may apply for a change of gender registration without being forced to undergo sex reassignment surgery. For example, Hsiao-E's case accepted by the Taipei High Administrative Court with the assistance of TAPCPR the year before last resulted in a victory. Moreover, although the Constitutional Court declined in February of this year to hear the constitutional interpretation petition filed by a transgender individual seeking a gender marker change without surgery on procedural grounds, it emphasized that judges adjudicating 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 change of gender registration is grounded in law.

Q. Where can I find relevant materials?

• TAPCPR "Understanding Transgender Together" Website
• Taipei High Administrative Court 109-Su-275 Judgment (TAPCPR Hsiao-E's Case)
• Supreme Administrative Court 110-Shang-558 Judgment (Kaohsiung Hsiao-Na's Case)
• Constitutional Court "112-Wei-Sai-Zi No. 4" Dismissal Ruling
• TAPCPR Press Release in Response to the Constitutional Court's Dismissal

Contact Person

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