Legal Opinion by Professor Ch'en I-Ch'chien | Kaohsiung Transgender Legal Gender Recognition Case without Surgery Requirement

I. Introduction

Upon receiving the notice from the Administrative Litigation Division of the Kaohsiung High Administrative Court and in coordination with the preparatory proceedings of Your Honorable Court to appear in court on March 28, the witness hereby submits this written report entitled "A Legal Perspective on the Viewpoint of 'Mandating Transgender Persons to Undergo Surgery to Change Their Gender Marker'" prior to the hearing for Your Honorable Court's reference.

One of the key legal issues in this case is what the laws and requirements for changing (legal) gender are. The defendant administrative agency claims to base its decision on a 2008 Ministry of the Interior administrative letter-ruling, which requires the party concerned to submit two psychiatric diagnosis certificates and a certificate of surgery removing gonads and sex organs. Because the latter is an irreversible invasive surgery with profound impacts on transgender individuals, it has sparked much controversy. The witness wishes to provide research opinions on gender and law, specifically targeting this mandatory surgery requirement.

Ever since the witness returned to Taiwan and began teaching after obtaining a doctorate in law, entering the 21st year, regarding projects related to transgender rights, the witness first executed a two-year National Science Council project in 2009 titled "Research on Fundamental Legal Issues of LGBTIQ," and has accumulated nearly 15 years of research experience up to this year's National Science Council project "Family Formation and Reproductive Rights of Transgender Persons." During this period, this included serving as a visiting scholar at the Center for Interdisciplinary Women's and Gender Studies at Humboldt University of Berlin in 2012, where an in-depth interview was conducted with attorney Maria-Sabina Augstein, whose impact on the legislative formation and reform of the German "Transsexuals Act" (Transsexuellengesetz) was immense. In 2018, the witness participated in the International Academy of Comparative Law's session on transgender rights, serving as the national reporter for Taiwan, and subsequently co-authored Trans Rights and Wrongs, A Comparative Study of Legal Reform Concerning Trans Persons with scholars from 23 countries, published in 2021, with Taiwan being the only Asian country among them.

Finally, in January 2022, the witness completed a 15-month project commissioned by the Executive Yuan titled "Legalization of Gender Change Requirements and Legislative Recommendations," which included comparative law research on Germany, Korea, New Zealand, and California, USA, as well as the execution of four focus groups and one public symposium, ultimately proposing a draft Gender Recognition Act. The witness hopes to share the gender and law research outcomes concerning transgender rights accumulated over the past decade and more, providing Your Honorable Court with the latest interdisciplinary information in the hope of assisting with the adjudication of this case. This requirement constitutes a medically invasive surgery; its irreversible nature and pathologizing treatment infringe upon the party's bodily integrity, reproductive rights, gender self-determination, and other fundamental rights. Yet, lacking any legal basis, this practice violating the principle of legal reservation has existed for many years, clearly contradicting the ongoing trends of constitutional, democratic, and legal reform in contemporary Taiwan, and violating the provisions of the Two Covenants and the Enforcement Act of CEDAW which have been enacted for many years.

The reasons why this mandatory surgery requirement should no longer be applied are detailed below:

II. The Standard of "Mandatory Surgery as a Precondition for Changing Legal Gender" Should Not Be Applied

1. The Right to Gender Self-Determination is a Fundamental Right Protected by the Constitution

In the past, mainstream society's and the women's movement's understanding of gender human rights was primarily framed through a binary framework of women versus men, advocating for the elimination of all discriminatory treatment against women. This understanding was largely based on the level of biological sex, and the legal system also relied on such a binary connection between sex and gender, where biological sex—female vs. male—served as the key classification basis for state legal intervention. Little emphasis was placed on recognizing biological sex, gender expression, and gender identity as distinct dimensions, nor was much attention given to the possibility that these dimensions might not be "consistent" or "congruent" in a specific individual.

The party in this case belongs to "gender incongruence"; based on her conviction in her gender identity, she wishes to change the gender registered at her birth, but the household registration authorities put forward the standard of having completed surgery to remove sex organs. With the accumulation of international medical and scientific research and the outcomes of gender studies, we now understand that it is indeed possible for the various dimensions mentioned above to be incongruent. Past medical diagnoses were "gender identity disorder" or "gender dysphoria"; now, according to the latest updated medical standards, the legal gender assigned at birth based on biological sex (newborns being unable to express themselves while their personality begins to develop)—that is, the gender written down by a doctor observing the newborn's reproductive organs with the naked eye—becomes the legal gender basis for all official documents. When this gender is incongruent with the individual's self-gender identity gradually formed later in life, it is merely "gender incongruence," one of the manifestations of human diverse gender experiences, not a disease.

Formerly referred to as "transsexuals" (German legislation in 1980 reproduced the values and perspectives of that era; now referred to as "transgender persons"), the dimensions and degree to which individuals cross or change gender actually vary greatly among individual cases. Their forms and degrees of self-gender cognition, as well as their desires to change gender and the age at which these desires arise, also differ, and not all cases undergo full sex reassignment surgery (including removal and reconstruction) or require surgery. Some individuals have taken hormones since before puberty, while others undergo surgery in their seventies. Gender personality, like personality development in other dimensions, unfolds along with life experiences, and the timing, conditions, and contexts of its development vary from person to person.

An individual's understanding and identification of themselves being incongruent with the outside world (including state identity verification, social interaction, family and interpersonal relationships, etc.) creates a gap that causes the individual to experience anxiety or even distress in daily life domains such as family, education, and employment. This is precisely the consequence of discrimination against transgender persons that the witness has strived to eliminate through years of research (refer to the "Survey on Living Conditions of LGBTI Persons in Taiwan, 2023" commissioned by the Executive Yuan to scholars).

In addition to scholarly writings and advocacy for the "right to gender self-determination" (refer to the witness's article published in American and European Studies, "Gender Self-Determination, Freedom of Marriage, and Transgender Human Rights: A Tentative Review of the German Federal Constitutional Court Judgment 1 BvL 10/05 (2008)," Appendix 1), in Taiwan's judicial practice, judges in a 2021 Taipei High Administrative Court judgment detailed for the first time why an individual possesses the right to gender self-determination as a constitutional right. The protection of human dignity and the free development of the individual personality, personality rights, bodily rights, health rights, and informational privacy rights (including the right to request correction of erroneous data records) all belong to fundamental rights protected by the Constitution, and state restrictions thereon must comply with the principle of legal reservation, the principle of proportionality, and the principle of equality.

Proceeding from the protection of "human dignity" and "freedom of personality development," to safeguard the aforementioned important fundamental rights and individual subjectivity, the right to privacy is indispensable. Among these, informational privacy rights regarding the autonomous control of personal data are particularly important, which include "the right to determine whether to disclose one's personal data, and within what scope, at what time, in what manner, and to whom, as well as protecting the people's right to know and control the use of their personal data and the right to correct erroneous data records" (refer to page 7, lines 1-4 of the 2009 Administrative Litigation Judgment No. 275 by the Taipei High Administrative Court). Although this right is not absolute, the state may restrict it only by law with clear stipulations within the scope of Article 23 of the Constitution.

Additionally, in Constitutional Court Ruling No. 4 of 2023, the dissenting opinion by Grand Justice Hsieh Ming-yang and the concurring opinion by Grand Justice Jan Forest basically hold similar views, affirming the right to gender self-determination as a fundamental right protected by the Constitution. Furthermore, in September 2023, the Supreme Administrative Court's opinion further held that the surgery requirement has no substantial correlation with gender identity.

In short, it can now be confirmed that the "right to gender self-determination" is a fundamental right protected by our Constitution and can only be restricted by law with clear stipulations within the scope of Article 23 of the Constitution. It can be said that in the legal community, this foundational standpoint currently faces no major controversy.

2. Current Standards Violate the Principle of Legal Reservation

If gender assignment and gender identity are key to an individual's personality development, the safeguarding of their human dignity also relies on their self-expression and continuous self-development in a manner they understand. When state governance requires individuals to register their gender, the right to correction regarding such gender information also belongs to the individual. To restrict people from changing their birth-assigned gender in accordance with their gender identity while setting severe thresholds requiring the removal of specific organs—that is, if the state intends to restrict citizens' fundamental right to register and obtain relevant certificates in accordance with their gender identity, it must do so by law. Currently, there is no such legal provision, and the Ministry of the Interior's administrative letter-ruling lacking legal basis violates the principle of legal reservation. For so many years, without legal norms and relying solely on a single letter-ruling from the Ministry of the Interior, people's fundamental rights have been infringed upon, and this infringement is ongoing.

3. The Mandatory Surgery Requirement Violates the Principle of Proportionality

"Transgender" is a general term for people whose gender identity or gender expression does not conform to the conventionally perceived male and female genders assigned at birth. Some transgender individuals have undergone sex reassignment (affirmation) surgery or hormone replacement therapy, while others have not. Transgender individuals seeking medical transition do not have a uniform set of medical transition procedures.

Yet in Taiwan, all such individuals experiencing "gender incongruence" are uniformly required to undergo surgery in order to change their gender, creating difficulties in daily life. Moreover, this means is irreversible, harms bodily integrity, requires a long period of recuperation and recovery, and demands money and time. If it is a surgery performed based on informed consent after thorough discussion between the individual and a physician, that is the individual's medical decision. However, some transgender individuals want surgery, some do not need or want it, some wish to undergo hormone replacement therapy (the witness chooses not to use the vocabulary of "treatment," because the World Health Organization has already indicated that this gender incongruence identity is not a medical condition; since it is not a disease, it is not treatment—regarding changes in medical standards, see the next paragraph), and some do not want it.

The presence or absence of sex organs has no substantive correlation with gender identity. As many life narratives of transgender persons tell us, the issue of "who I am" has no substantive correlation with what organs I possess. Requiring mandatory surgery in order to change gender is excessively drastic as a means and fails to achieve the purpose of state gender governance. The gender registered by the state actually lacks great significance; the administrative agency must explain why it is necessary to register people's biological sex at birth and for what public interest.

4. Violation of World Health Organization Medical Standards

An individual's gender identity differing from their assigned sex at birth constitutes "gender incongruence" and is not a disease. The 11th revision of the International Statistical Classification of Diseases and Related Health Problems (ICD-11) formulated by the World Health Organization, a specialized agency of the United Nations, officially took effect in January 2022, completely depathologizing gender incongruence between biological sex and gender identity, placing "gender incongruence" under the chapter related to sexual health, and comprehensively broadening the perspective of medical services for transgender individuals.

The International Classification of Diseases (ICD) published by the World Health Organization and the Diagnostic and Statistical Manual (DSM) published by the American Psychiatric Association belong to different systems, but share a similar depathologizing trend regarding the transgender definition of gender incongruence. Member states are currently updating their medical practices accordingly. Since it is not a disease, but rather one of the diverse gender experiences inherently existing in humanity, and with gender judged by the psychological belonging of the individual, the state—when demanding registration for governance needs—should naturally respect the wishes and declarations of the individual, and has no reason to demand that the individual undergo compulsory removal of sex organs.

As for whether each individual should undergo medical gender intervention surgery, sex reassignment surgery, hormone replacement therapy, or preliminary daily life testing dressed in the desired gender, this falls within the scope of meticulous discussion between each individual and their trusted physician or psychological professional to make a decision suitable for the individual, and should not be arbitrarily and crudely decided by government agencies on behalf of the individual. Internal and external reproductive organs are merely one of many factors determining gender, not the sole one. The contemporary meaning of gender identity has evolved and constitutes an important attribution basis for personal personality development; everyone should enjoy the right to gender self-determination.

5. Administrative Orders Infringing Upon Fundamental Rights Should Be Immediately Abolished and Deemed Inapplicable

The aforementioned judgment by the Taipei High Administrative Court declining to apply this illegal administrative order has been highly praised. Constitutional Court Ruling No. 4 of 2023 dismissed the petition while the Grand Justices reaffirmed that judges may refrain from citing unconstitutional and illegal administrative orders. The witness also affirms this legal view; the Ministry of the Interior should have immediately abolished this administrative order lacking legal basis, or amended it, updating the latest medical knowledge to issue the most suitable contemporary administrative letter-ruling.

However, because our country's administrative agencies rarely possess the habit of taking responsibility and correcting their own errors, many individuals are forced to initiate administrative litigation on their own, fighting institutional injustice with their bare strength. While deeply admiring this, the witness also hopes Your Honorable Court can somewhat understand the helplessness of individuals facing a closed door when seeking help from administrative agencies. When the party in this case comes before Your Honorable Court, she must be holding hope, expecting the judicial system to immediately halt the harm inflicted upon her by our overall legal system and social operations, and expecting Your Honorable Court to immediately protect her fundamental rights through a judgment.

6. Public Law Obligation to Provide Performance

Before unconstitutional and illegal administrative orders that nonetheless possess substantial influence in daily life are abolished—with transgender persons belonging to a gender minority (in terms of political power) and legislation nowhere in sight—the witness believes that the rights of individuals should not be affected by a slowly evolving society and legal system, and should be protected immediately. Potential infringements should be halted immediately, especially since the party has mustered the courage to travel from afar to stand before Your Honorable Court.

The infringement upon the party's rights has persisted for so many years and should be stopped immediately. If Your Honorable Court can, in accordance with constitutional mandates, recognize that the party possesses the right to change gender without surgery to match her gender identity, it can once again assure the party of the Constitution's original intent to protect minorities. Although in a binary society, a party who has changed her ID card may not immediately solve all life problems, Your Honorable Court's judgment is more like an emergency room amidst numerous dilemmas and injuries; at the very least, after stopping the bleeding, the party can better afford to continue facing our country's impregnable and rigid binary society, and Your Honorable Court is presumably the party's last line of hope.

III. No Country Worldwide Has Enacted Laws to Define Gender

1. The International Trend is to Abolish Mandatory Surgery Requirements, Moving Towards Gender Self-Determination

Based on humanity's humility regarding its own life, to this day not a single country has enacted legislation defining what male, female, or gender is. From ancient times to the present, cross-cultural and cross-generational research reveals that in every society and specific era, people form specific views on gender, men, and women. In the past, if a woman excelled in the four arts (painting, chess, calligraphy, and music), it was considered that "yin acts where yang cannot." A 1980 newspaper report of "neither male nor female" simply referred to popular male musicians wearing long hair like women. Today, we still cannot define gender, but what is certain is that an increasing number of countries are passing laws or amending civil codes to allow people to define themselves and decide their own gender identity.

From the comparative law books and Executive Yuan research in which the witness participated, it is confirmed that abolishing mandatory surgery requirements is an international trend, loosening the "heavy medicalization" model toward a "light medicalization" model, and gradually trending toward a gender self-determination declaration model. The legal norms regarding Spain cited by the Supreme Administrative Court represented outdated information; on February 16, 2023, a new law was passed, and Spain currently adopts a self-declaration model. In fact, prior to the passage of the new law, 14 out of 17 autonomous regions already had their own regulations, with the earliest not requiring any medical certification documents since 2014. In short, changes in this field are rapid, and member states of the World Health Organization worldwide are currently in flux, incorporating the aforementioned updated medical standards into their respective medical and legal practice systems.

Around the time the witness completed the Executive Yuan project, New Zealand royal assented and promulgated the new Births, Deaths, Marriages, and Relationships Registration Act 2021 on December 15, 2021, replacing the Births, Deaths, Marriages, and Relationships Registration Act 1995, which takes effect 18 months after legislation and now also adopts a self-determination model.

Germany saw the non-binary predicament of transgender persons through individual judicial litigation cases four decades ago and enacted the "Transsexuals Act," providing clear and explicit statutory requirement demands and procedures, although these requirements have been declared unconstitutional one by one (such as not being in a marital relationship, mandatory sterilization, etc.). These constitutional court judgments have progressively debated and established today's legal system and public acceptance that this is an issue concerning the infringement of fundamental rights.

With case after case, the German Federal Constitutional Court has repeatedly reaffirmed and recognized that gender identity is an important part of self-determined personality development, confirming that the right to gender self-determination is a fundamental right protected by the Constitution. When people cannot register their gender according to their own gender identity definition, they are more susceptible to unequal treatment, infringing upon their freedom of personality development (gender self-determination), human dignity, and equal protection. This part of our legal system requires greater awareness and discussion, and Your Honorable Court's judgment will be a crucial turning point in determining our country's future protection of transgender fundamental rights.

From the cases of the German Federal Constitutional Court, we clearly see why different requirements fail to pass constitutional value scrutiny; it is hoped that Taiwan will not repeat these mistakes. The medical foundations and socio-cultural understanding of transgender persons from back then differ greatly from today over forty years later. We see medical scientific research, gender studies, and sexology continuously providing the judicial system with more foundations to understand diverse human expressions, serving as a fine model for Taiwan in both research methodology and substantive content. This year, Germany happens to be at a critical juncture transitioning from a "light medicalization" model (Germany abolished mandatory surgery in 2011) to a gender self-determination model, with a self-determination model version having passed last August and the bill currently pending in parliament.

2. The Party in This Case Already Meets the Requirements Recommended by the Witness's Research Findings

The witness completed the project commissioned by the Executive Yuan in January 2022 on the legalization of gender change requirements and legislative recommendations. Based on the international trend of depathologization and changing international human rights standards, while stereotypical societal imaginations of men and women still genuinely exist in Taiwan's reality, adopting the self-declaration models of California and New Zealand's new laws wholesale would probably cause too great a shock to Taiwanese society. At this juncture, foundational educational construction for raising awareness about transgender persons is even more urgent. Therefore, the research ultimately conservatively suggested that as long as the party meets any of the following conditions, based on the following criteria, the witness assesses that the party in this case meets the conditional requirements for changing identity documents.

Depending on the different circumstances of the subjects, those seeking to change their gender registration to male or female may choose one of the following three categories of documents to effect the change:

The first category applies to those seeking evaluation by a psychologist or psychiatric specialist. Among them, gender non-conforming refers to individuals who, although not reaching the clinical presentation of gender dysphoria, have their "gender identity, role, or expression differ from cultural norms prescribed for a specific gender" (Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, 7th version, page 4, translated and annotated by Tou Hsiu-lan).

The second category applies to those seeking hormone replacement therapy; hormone replacement therapy, like surgical operations, causes permanent bodily changes.

The third category applies to those seeking surgical operations. Unlike current regulations, it no longer mandates the removal of all sex organs, but respects the individual's decision on the degree of removal or reconstruction to match their subjective identity.

3. Transgender Fundamental Rights Should Outweigh Anxiety Caused by Lack of Understanding

In considering altering binary social arrangements and designs regarding the general public's worries—whether people will engage in criminal behavior through gender changes—the California legislative model requires individuals to make a sworn declaration that they will be subject to criminal sanctions should they engage in criminal behavior in the future, which is self-evident. German judicial judgments repeatedly emphasize that mental states are similar: people feel worried, doubtful, and inconvenienced due to a lack of understanding of transgender individuals. These are psychological emotional states and genuine feelings that must be properly addressed.

When the other end of the scale is the fundamental right and right to gender self-determination of transgender individuals, mere worries about gender changes without surgery do not constitute a sufficiently justifiable reason. Between the two, the party's right to gender self-determination must be prioritized for protection. Should there be any questions regarding the content or further legal issues or gender research topics you wish to understand, inquiries are welcome.