Yo-Ling Chenby Yo-Ling Chen
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Photo courtesy of Judicial Reform Foundation
YESTERDAY AFTERNOON AT 4:00 PM, the Kaohsiung High Administrative Court (KHAC) ruled in favor of a transgender woman’s administrative appeal case to change her legal gender without providing proof of sexual organ removal surgery. This ruling comes after the Supreme Administrative Court (SAC) ruled last September that the KHAC’s original ruling for plaintiff Xiao Na (小那, pseudonym) on May 25, 2021 was null, and that the KHAC re-hear Xiao Na’s case. Today’s KHAC ruling is the third successful administrative appeal case of transgender plaintiffs in Taiwan seeking to change their legal gender without undergoing proof of surgery. The content of the KHAC’s ruling this afternoon shows how legal consensus around abolishing compulsory surgery is becoming taken for granted in Taiwan in recent years.
When Xiao Na first went to the Fongshan District Household Registration Office on November 6th, 2019 to apply for a legal gender change without providing proof of reproductive organ removal surgery, there were no similar successful administrative appeal cases for judges to consider. The KHAC’s May 25, 2021 ruling concluded that “the plaintiff’s appeal was baseless” (“原告之訴為無理由”) since Fongshan District Household Registration Office was simply following the Ministry of Interior’s 2008 executive order (內政部97年11月3日內授中戶字第0970066240號令) requiring proof of having surgically removed specified reproductive organs—penis and testicles for transgender women; breasts, uterus, and ovaries for transgender men—and two gender dysphoria diagnosis certificates from separate psychiatrists in order to legally change one’s gender. Xiao Na only submitted two gender dysphoria diagnosis certificates; hence, the KHAC ruled that Xiao Na’s appeal was baseless.
Xiao Na appealed her case to the SAC under the legal representation of trans non-binary lawyer Lingwei Li (李翎瑋), founder of Zenkuan Law Firm and Taiwan Non-binary Queer Sluts. The SAC ruled last September that compulsory surgery violated one’s right to health, that gender identity was one of many rights of personality, and that the stability of a person’s gender identity is not inextricably linked to whether they have had their reproductive organs surgically removed. Xiao Na’s case was then sent back to the KHAC for rehearing.
According to the Judicial Reform Foundation, the KHAC’s ruling this afternoon shows that the court “clearly recognizes that transgender people have the right to change their gender registration marker to one that corresponds to the gender with which they identify without undergoing permanent, irreversible, and invasive surgery” (“代表法院明確認定，跨性別者有權變更戶籍性別登記為符合自己認同的性別，而不需要經過永久不可回復的侵入性手術”). The KHAC further stated that registration alterations such as changing one’s legal gender are ensured by Article 21 of Taiwan’s Household Registration Act, and that this clause should include the right of transgender people to change their gender markers without undergoing surgery. Compared to the KHAC’s May 25, 2021 ruling which staunchly defended the Ministry of Interior’s 2008 executive order, this afternoon’s ruling stated that this order should be considered illegal (“內政部的相關函釋應屬違法”). This change demonstrates that the growing number of administrative court rulings in favor of abolishing surgery is indeed shifting how court judges handle gender marker change cases that do not provide proof of surgery.
Yet, the question of what exactly should come to replace compulsory surgery for legal gender change has yet to gain widespread consensus. The SAC’s September 21, 2023 ruling emphasized the criterion of gender identity stability, but it remains unclear whether gender dysphoria diagnosis certificates, use of gender affirming hormone replacement therapy, and/or non-medical forms of evidence are sufficient to satisfy this criteria.
On August 15th, the Taipei High Administrative Court is set to make its ruling on a transgender plaintiff’s case that aims to change legal gender without providing medical evidence of one’s gender identity and gender stability. Plaintiff Vivi, a transgender YouTuber and Vogue dancer represented by the Taiwan Alliance to Promote Civil Partnership Rights, only submitted daily life photos of herself living as a woman as evidence of her gender identity and stability to the Taipei High Administrative Court. Xiao E, Lisbeth Wu, Nemo, and Xiao Na’s appeal cases all made use of medical evidence to prove the stability of their gender identity. It remains to be seen whether Taiwan’s legal consensus can be moved towards a non-medical evidence model similar to France’s gender recognition system.
Regardless of how the Taipei High Administrative Court rules on Vivi’s case on August 15th, the KHAC’s ruling this afternoon is yet another historic victory for transgender rights in Taiwan, as well as yet another precedent against compulsory surgery.