Yo-Ling Chenby Yo-Ling Chen
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English
Photo Credit: 法官學院
ON JULY 11TH, the Taipei High Administrative Court made its third ruling in favor of a transgender plaintiff seeking to change their legal gender without undergoing sexual organ removal surgery. The plaintiff, a transgender women who was pseudonymized as L by the Central News Agency this past weekend in the first Chinese language news report on this court ruling, was represented by Prisma Attorneys-at-Law founding lawyer Titan Deng (鄧傑). While L’s court victory does not appear to be a part of coordinated strategic litigation attempts to abolish the surgery requirement for changing one’s legal gender by groups such as the Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR), it is nevertheless another milestone ruling that further consolidates legal consensus against compulsory surgery.
Challenging the current Ministry of Interior 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, L went to the Zhongzheng District Household Registration Office on November 8th, 2021, and presented two gender dysphoria diagnosis certificates to apply for a legal gender change with providing proof of surgery. Zhongzheng Household Registration Office rejected L’s application on the grounds that she did not provide proof of sexual organ removal surgery as required by the Ministry of Interior, which she then appealed; her appeal was rejected on November 12, 2021 by the Taipei City Government Department of Legal Affairs. L then took her administrative appeal case to the Taipei High Administrative Court.
The presiding judge of L’s case, Judge Li-Hua Xu (許麗華), was the same presiding judge of Xiao E’s Taipei High Administrative Court case from September of 2021. July 11’s written decision states that “the central focus of investigations on gender registration change applications is whether the applicant autonomously understands themselves to be and outwardly presents a certain gender and whether belonging to this gender is continuous, stable, and highly unlikely to change; whether the applicant has removed external bodily sex characteristics that do not conform to their gender identity is not in and of itself a closely related and important factor in gender registration change” (就此等性別變更登記申請事件，應審查之重點在於申請人本於自主性認知而對外展現之性別樣貌，具有相當持續性，得認此性別歸屬趨於穩定，且高度可能不會再度改變，則申請人原有與其性別認同不符之身體外部性徵是否業經移除，並非與事務本質密切相關之重要事項). The Taipei High Administrative Court went on to reason that L’s desire to update her legal gender to female was “stable” (其變更性別之意願確為穩定) given that she has continuously presented as female for a long time (展現與出生登記性別不同之女性樣貌，已持續相當期間) through changes to her dress and appearance (在服裝、打扮上，渴望以女性的樣貌展現), has understood herself to be a woman since she was a young child (自幼確具有明確的女性認同意識), and has been undergoing gender-affirming hormone therapy to trigger feminizing biological changes (誘發女性化的生理變化) since August of 2020.
Perhaps due to the fact that this case was independently litigated under the representation of Prisma Attorneys-at-Law and had no connection to TAPCPR’s series of high-profile transgender rights strategic litigation cases, there has been little public discourse on L’s court ruling the past few weeks; nevertheless, L’s court ruling further consolidates legal consensus against compulsory surgery for changing one’s legal gender. At the same time, Xiao E, Nemo, Xiao Na, and L’s victories in court have only moved legal consensus towards a soft-medical model of gender recognition where various forms of medical evidence (i.e. gender dysphoria diagnosis certificates, hormone use, etc.) are considered sufficient for proving the continuity, stability, and relative fixity of one’s gender and thus warranting legal gender change. Whether medical evidence is considered sufficient and necessary in the eyes of the court remains to be seen with the Taipei High Administrative Court’s August 15th ruling on TAPCPR plaintiff Vivi’s strategic litigation case, which only presented everyday photographs of the plaintiff for the court’s consideration in lieu of medical evidence.