by Brian Hioe

Photo Credit: Brian Hioe

THE TAIPEI HIGH Administrative Court ruled against laws requiring transgender people to provide proof of surgery to change their legal gender this afternoon. The announcement was made shortly after 4 PM, with a decision in favor of the plaintiff, known as Xiao E. 

Xiao E was represented by the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR), the organization that represented longtime LGBTQ activist Chi Chia-wei in the case that resulted in the legalization of gay marriage in Taiwan two years ago. Xiao E had filed a lawsuit after she was not allowed to change her gender from male to female on her national ID card without proof of surgery at the Daxi Household Registration Office in Taoyuan. This resulted in an administrative lawsuit being filed in March of this year, with the TAPCPR announcing a petition on the issue on April 1st, timed to coincide with International Trans Day of Visibility. The TAPCPR will hold a formal press conference on the ruling tomorrow morning. 

Previous laws required proof of surgery in order to be allowed to legally change one’s gender, which included specifying what body parts needed to be surgically removed to qualify for being able to legally change one’s gender. Transgender women were required to surgically remove their penis and testicles while transgender men were required to surgically remove their breasts, uterus, and ovaries. A mental health evaluation from two psychiatric specialists was also required. 

Nevertheless, one notes that ROC law demonstrates a highly biological view of gender, when many transgender individuals may identify as a different gender than that which they were identified at birth but may not wish to undergo surgery. Previous laws also necessitated the sterilization of those that wished to legally change their gender, as well as imposing the cost of surgery upon them. 

Facebook post by TAPCPR on the ruling

To this extent, the TAPCPR argued that the surgery requirement was in defiance of international human rights conventions that Taiwan has ratified, such as the International Covenant on Civil and Political Rights, International Covenant on Economic Social and Cultural Rights, and Convention on the Elimination of All Forms of Discrimination Against Women. The TAPCPR further pointed to legal precedents elsewhere, such as in the European Union, in which the European Court of Human Rights struck down similar regulations on the basis that they violated human rights protections. For its part, the Ministry of the Interior’s interpretation asserted the right to equality, privacy, and personal freedoms protections with regards to the ruling. 

The ruling can still be appealed, though it is to be seen whether this happens. It is not impossible that conservative groups will react against the ruling. In particular, Taiwan’s declining birthrate has been used as a wedge issue against members of the LGBTQ community by conservatives in past years, with the KMT alleging this to be a particular fault of the Tsai administration’s—under which gay marriage was legalized. Progressive politicians that backed gay marriage have faced recall petitions from church-led groups in the past. 

To this extent, while the Tsai administration has been happy to tout Taiwan as the first country in Asia to legalize gay marriage, with Tsai having made the legalization of gay marriage a campaign promise in 2016, the DPP was initially reluctant to move on the issue. Namely, the DPP itself has highly conservative elements, which were opposed to gay marriage, sometimes due to links with homophobic church groups. 

Indeed, more broadly, there remain a number of restrictions on sexual freedoms on the books in Taiwan. This includes limits on transnational gay marriage, specifying that Taiwanese can only marry individuals from countries that have also legalized gay marriage, and restrictions that do not allow couples to jointly adopt a child unless that child is the biological child of one of the couple. One notes that Taiwan only recently lifted long-standing adultery laws, with Taiwan being one of the last countries in Asia to have adultery laws on the books. Moreover, the legally allowed gender statuses are only “male” and “female” at present, remaining confined to a binary view of gender, an issue flagged recently with plans to introduce new electronic IDs. 

Trans issues have become increasingly visible in past years. The annual Trans March has been held twice now, with the march usually occurring the day before the annual pride parade. At the same time, even with today’s court victory, one notes that there is much work that needs to be done, as reflected in that such requirements were enshrined in the law for such a long time without any successful legal challenge.

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