by Yo-Ling Chen

Photo Credit: Brian Hioe

THIS PAST FRIDAY, the Constitutional Court of the Judicial Yuan decided not to move forward with a constitutional interpretation for Lisbeth Wu’s (吳宇萱) case regarding regulations requiring proof of surgery to change one’s legal gender. The specific regulation under scrutiny is Ministry of Interior executive order #0970066240, which requires people assigned male at birth to surgically remove their penis and testis and people assigned female at birth to remove their breasts, uterus, and ovaries in order to change their legal gender. Over the past few days, people following Taiwan’s trans rights movement have attempted to make sense of the Constitutional Court’s decision to send Wu’s case back to the Taipei High Administrative Court.

During Transgender Day of Remembrance on November 20th, 2020, the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) accompanied Wu to the Taipei City Zhongzheng District Household Registration Office, where Wu applied for a legal gender change without submitting proof of surgery. Wu’s application was summarily rejected and TAPCPR has since represented Wu in the subsequent administrative appeal process, the first preliminary proceedings of which were held on September 15, 2021. During the second preliminary proceedings on November 16, 2021, both Wu and the Zhongzheng District Household Registration Office agreed to stop the administrative appeal process and allow the Taipei High Administrative Court to exercise its authority to apply for a constitutional interpretation. After almost fifteen months of waiting, the Constitutional Court finally released its decision on whether to move forward with Wu’s case this past Friday.

TAPCPR explained in a press release on Saturday that the Constitutional Court’s decision does not mean that the ruling justices think that the surgery requirement is constitutional; on the contrary, two out of the three ruling justices’ legal opinions expressed the view that compulsory surgery for legal gender change is unconstitutional. The reason given for declining to move forward with Wu’s case, TAPCPR further elaborated, is that the Taipei High Administrative Court already has jurisdiction over deciding the constitutionality of executive orders from the Ministry of the Interior and whether or not to said orders should be ignored, as was the case in the historic Xiao E ruling on September 23, 2021.

Facebook post by Professor Yi-Chien Chen

On Sunday, Shih Hsin University Graduate Institute for Gender Studies Professor Chen Yi-Chien (陳宜倩) provided commentary on the Constitutional Court’s decision in a Facebook post. Professor Chen generally expressed doubts about the legal reasoning behind the decision, drawing a parallel between Wu’s case and the same-sex marriage case that led to Judicial Yuan Interpretation No. 748 in May of 2017, as both situations involve an absence of legislation over the issues in question (i.e. there is no Gender Recognition Act or similar legislation in Taiwan governing legal gender change, just the Ministry of the Interior’s executive order). Furthermore, both cases are considered under the old version of the Constitutional Court Procedure Act since both cases entered consideration prior to the new Constitutional Court Procedure Act going into effect on January 4, 2022.

While Professor Chen expressed that the decision is not necessarily a bad thing for the trans rights movement and she does not think it is a wrong decision, she nevertheless questioned why the same-sex marriage case was able to move forward with constitutional interpretation while Wu’s case was not. In theory, if the Constitutional Court was able to hear the same-sex marriage case, it should also have been able to hear Wu’s.

Professor Chen speculated that the Justices’ greater understanding of gay and lesbian communities compared to transgender communities may have played a role. Other discussions amongst trans rights advocates further speculate that the reason the Constitutional Court sent Wu’s case back to the Taipei High Administrative Court is simply because the justices do not want to be the ones responsible for addressing the compulsory surgery issue, essentially engaging in a round of hot potato.

In their press release, TAPCPR echoed the lament expressed in Justice Shieh Ming-yan’s (謝銘洋) dissenting opinion that sending Wu’s case back to the Taipei High Administrative Court effectively amounts to requiring more plaintiffs to go through the administrative appeals process in order to have the chance to apply again for constitutional interpretation should their appeals be unsuccessf–which will only add additional legal torment and steps for people seeking to change their legal gender. TAPCPR stated that it will optimistically await the Taipei High Administrative Court’s ruling on Wu’s case.

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