Queer Temporalities and Transgender Rights: A Hong Kong Case Study

Time to Marry

What might it mean to say that the idea of the human is premised on ‘normative narratives of time’, and how could we theorize the interrogation of these temporal narratives? In their seminal book, In a Queer Time and Place, literary-cultural scholar Judith (Jack) Halberstam observes that an individual’s development is often structured according to ‘paradigmatic markers of life experience’ – it begins with birth, moves through the stages of adolescence, marriage, and family formation, and terminates with death (Halberstam, 2005: 152). This trajectory defines human life as a ‘desired process of maturation’, whereby we leave behind the basic instincts and drives of infancy and the ‘unruly’ teenage years to arrive at the destination of marital responsibility and familial respectability (Halberstam, 2005: 152). This temporal structure is perpetuated and entrenched as the normal, or self-evidently desirable, trajectory for any human being, and those who do not attain, or simple do not want, this trajectory are implicitly or even explicitly marked as misfits or oddities. There are two aspects of Halberstam’s argument that I would like to foreground for my purposes. First, the normative narratives they point to further a linear notion of time, whereby life is conceptualized as a unidirectional, destination-oriented movement across different stages. From youth to adulthood, from inexperience to maturity, from singleness to conjugality: going from one stage to the next is deemed progress, going in the other direction, regression. Second, and as Nguyen Tan Hoang has pointed out, we should be careful not to re-inscribe such narratives into the life stories of sexual minorities, for they can lead to the stigmatization or neglect of alternative forms of human flourishing (Dinshaw et al., 2007: 184). It is all too easy to normalize the construction of trans identity as a linear, forward-looking movement from one gender to the other over time. The naturalization of this single, transnormative life story risks devalorizing other models of transpersonhood that are no less legitimate.

The interrogation of these normative narratives therefore entails rethinking their forms, nature, components, and conditions of normalization: as Halberstam puts it, queer time is about the ‘potentiality’ of living a life that is ‘unscripted’ by unexamined ideas about linearity, progress, the privileging of marriage and domesticity over other forms of intimate relations, and the division of life into stages and destinations (Halberstam, 2005: 2). The notion of unscripting is key here – queer temporalities involve exposing, and displacing, dominant narratives so that other modes of life writing may find a place. Elizabeth Freeman puts this idea more forcefully when she points out that ‘far from being a set of empty containers – minutes, hours, days, weeks, months, years, decades, periods – into which our experience gets poured’, time is ‘a tool for the naturalization of power relations’ that is ‘actively constructed’ (2019: 93). As such, ‘turning the lens onto time’ is a critical move if we want to expose how its construction perpetuates the ideological exclusion of nonconformists through cultural forms such as literature, political rhetoric, and I would add, law (2019: 93).

If, as Freeman suggests, we turn the lens onto time in the W case, if we foreground time as an analytical category, it becomes evident that the judgment partakes in a continual entrenchment of normative temporal narratives. The details of the case are as follows: in W, the Court of Final Appeal held that Article 37 of the Basic Law, which guarantees ‘the freedom of marriage of Hong Kong residents and their right to raise a family freely’, protects the right of post-operative transsexuals to marry in their new gender, and mandated that the words ‘woman’ and ‘female’ in the local marriage ordinances be read so as to include someone in W’s position (paragraph 85). The court left open the question of whether the right to marry in one’s new gender under Article 37 should be extended to transgender people who have not undergone sex reassignment surgery or those who have undertaken less extensive forms of surgery. It also ordered the legislature to conduct a more comprehensive review of the possibility of introducing a formal gender recognition procedure, but the bill to implement the order which the government introduced into the Legislative Council failed to garner enough votes, and the state of trans rights in Hong Kong remains that defined by the W judgment: only trans people who have undergone full sex reassignment surgery can marry in their new gender (Cheung and Siu, 2014).

The temporal narratives operate at two levels: at the level of the legal reasoning more generally, and at the level of the construction of trans identity more specifically. At the more general level, the court’s overall analysis is premised on a linear conception of time, whereby different societal institutions display, and bolster, the narration of natural and inevitable progress. ¹ This is evident in the discussion of the institution of marriage. The discussion begins in the 19th century, with Lord Penzance’s definition of marriage in Christendom, formulated in contradistinction to Mormon polygamous marriage, as ‘the voluntary union for life of one man and one woman, to the exclusion of others’ in Hyde v. Hyde and Woodmansee (1866) LR 1 P&D 130. The Hong Kong court notes that this formulation has been interpreted as placing ‘an emphasis on procreative sexual intercourse’ as ‘an essential purpose of the matrimonial union’ (W: paragraph 85). It then cites Thorpe LJ’s observation, in his dissent in the Court of Appeal judgment in Bellinger v. Bellinger [2001] EWCA Civ 1140, that ‘huge social and scientific changes’ in the ‘intervening 130 years’, such as the availability of effective contraception and the increasing societal acceptance of cohabitation, have significantly lessened the importance of procreation as a marital aim (Bellinger: paragraph 128). ² Finally, it concludes that, ‘in present-day’ Hong Kong, procreation can no longer be regarded as the sine qua non of marriage (W: paragraph 90). These changes occur against the backdrop of medical ‘advances’ that lead to a turn away from pure biology and toward psychological and social factors as determinants of gender (paragraph 90). The institution of marriage is here presented is one which ‘evolves’ teleologically, moving ever forward from an outmoded Victorian fixation on procreation, through the medical, technological and social advancements of the 20th century, before reaching the modernity of the ‘now’ – a word which, along with variations such as ‘today’ and ‘the present day’, is emphasized in the majority judgment (paragraph 94). The point here is not simply that the institution is represented as evolving within the judicial narrative, but that this temporal progress sustains and reinforces its legal and cultural legitimacy: marriage is a valuable institution to a great extent because it moves with the times.

The linearity of legal time is further reflected in the Court of Final Appeal’s survey of the cases on transgenderism from the European Court of Human Rights. In cases of rights adjudication, Hong Kong courts regularly turn to the jurisprudence of the Strasbourg court, in addition to local and common law precedents. The Court of Final Appeal observes that in a series of early cases, including Rees v. United Kingdom (1987) 9 EHRR 56, Sheffield and Horsham v. United Kingdom (1998) 27 EHRR 163, and Cossey v. United Kingdom (1990) 13 EHRR 622, the Strasbourg court held against the transgender applicants and gave the state a wide margin of appreciation. The Court of Final Appeal then relegates these cases to the past when it announces, somewhat grandiosely, that ‘the time for change had finally arrived’ in Europe with Christine Goodwin v. United Kingdom (2002) 35 EHRR 18 (hereafter Goodwin) (W: paragraph 76). In that case, the Strasbourg court found that the United Kingdom had violated the applicant’s right to privacy under Article 8 of the European Convention on Human Rights by failing to give legal recognition of her acquired gender, and that it had violated her right to marry under Article 12 of the Convention by relying solely on biological criteria to determine gender such that she could not legally marry her male partner. The Strasbourg court also found that, unlike in the earlier cases, there was ‘clear and uncontested evidence of a continuing international trend’ toward both social acceptance and legal recognition (Goodwin: paragraph 85). In its discussion of the European cases, the Hong Kong court in effect constructs a temporal sequence of legal events: this sequence is made up of a historical segment ‘spanning some twelve years’ that comprises the three unsuccessful cases, followed by a swerve toward the contemporary in Goodwin (W: paragraph 75). Like the cultural temporal narrative that normalizes a division of life into the stages of ‘youth’ and ‘adulthood’ which Halberstam highlights (Halberstam, 2005: 153), the legal temporal narrative here divides the European cases into a preliminary ‘twelve years’ constituting the prepubescence of trans rights protection, followed by a sudden growth spurt into full maturity in the form of Christine Goodwin (W: paragraph 75). The Hong Kong court then inserts itself into this linear timeline: on the basis of this narrative of progressive precedent, it reaches its conclusion that a post-operative transsexual like W is allowed to marry in her new gender.

At the more specific level of the court’s construction of transgenderism, the W case inscribes a normative temporal narrative into the process of identity formation. By establishing marriage and family as the starting point for considerations of trans rights in modern-day Hong Kong, by presenting coupledom as the new beginning for legally protected trans experience, this foundational case contributes to the legitimation of those trans lives that conform to the naturalized trajectory from birth to marriage and family, and implicitly signals to transgender people who do not follow this narrative that their love and lives are less worthy of protection. ³ The rights regime therefore places a litigant like W in a perturbing position: she can assert her rights, but only at the expense of appearing to ratify the marriage narrative and thus participate in the normalization of ‘hetero time lines’ (Dinshaw et al., 2007: 183). The heterosexism of this normative chronological arrangement comes out especially starkly in a jurisdiction like Hong Kong, where neither same-sex marriage nor civil unions for same-sex couples has been legalized. Through this case, the law deepens not only the legitimacy, but the primacy, of normative temporal narratives for understanding trans experience.

W also inscribes linearity at the core of the formation of the transgender subject by making full sex reassignment surgery a prerequisite for legal recognition of one’s new gender. The case in effect defines the development of trans life as a unidirectional, forward movement from the birth (or, in temporal terms, ‘old’) gender to the acquired (or ‘new’) gender, with the post-operative body as the final destination or end point in this temporal schema. In this narrative of self-development, those people who have not had the operation, or who have undergone less extensive forms of surgery, are implicitly rendered as immature subjects who have yet not become fully trans, and who are still progressing to their future gender. Yet as activist and lawyer Dean Spade reminds us, ‘the vast majority of trans people do not undergo surgery, both because it is prohibitively expensive and because many people do not want or need it’ (2011: 145). Moreover, the availability of such an operation differs hugely within the trans community, and ‘the common misperception that surgery is the hallmark of trans experience is also particularly harmful to populations disproportionately lacking access to medical care, including low-income people, people of color, immigrants, and youth’ (Spade, 2011: 145). Through its normative developmental narratives, the W case inscribes the tropes of linearity, futurity, maturity, life markers (pre-op/post-op), and progress into trans life. The temporal narrative is a violent one, coercing transgender people onto the operating table and under the surgical blade in order to complete that ‘desired process of maturation’ that ends with the only anatomical form legally recognized as the mature stage of trans identity formation (Halberstam, 2005: 152).

Queer Voices of Today

Yet what of those who do not have surgery? What of those who think of transpersonhood not as a mandatory march toward a new gender, but as an exploration of ‘more hybrid possibilities for embodiment and identification’ (Halberstam, 2005: 55)? In their recent book, Trans*, Halberstam closes their examination of trans culture and politics with a reflection on the debates about gender neutral pronouns in the English language. Pondering over their own discomfort with the use of both ‘he’ or ‘she’ as a designator, Halberstam provides an illuminating discussion of conceptions of the self that do not adhere to the strict temporal movements from an old gender to a new gender, or from a past identity to a future identity. Confessing to being ‘a bit of a free floater’ when it comes to pronouns, they note that it is precisely the linguistic oscillation between the two poles of maleness and femaleness, or the ‘back and forth between he and she’, that best reflects their current subjectivity (Halberstam, 2018: 153). Being undecided about pronouns, refusing to settle on a final designator, and finding one’s place in what many people would regard as a problematically ambiguous terrain, are all associated with more expansive understandings of gender: ‘my floating gender pronouns capture well the refusal to resolve my gender ambiguity, which itself has become a kind of identity for me’ (Halberstam, 2018: 153; my emphasis). Reframing the enigmatic and much analyzed statement, ‘I would prefer not to’, by the clerk in Herman Melville’s short story ‘Bartleby, the Scrivener: A Story of Wall Street’ as a political response to legal and social demands to fall on one side or the other of the existing binary divisions, Halberstam carves out a space for transgender subjects who insist on the right ‘not to clarify what must categorically remain murky’ (Halberstam, 2018: 154). ⁴

There are a number of aspects worth highlighting in these reflections for my purposes. First is the tone of the reflections: speaking in a personal voice and a colloquial register – ‘I am a person of strong opinions, so why, oh why, do I insist on being loosey goosey about pronouns?’ they wonder – Halberstam’s seemingly casual musings articulate the fluidity and flux of trans subjectivities that go largely unregistered in the discourse of the W case (Halberstam, 2018: 154). In the eyes of the court, the gender identity of someone like Halberstam is too murky to come within the scope of Article 37, but Halberstam points out that murkiness is not a sign of incompleteness but a legitimate, if more complex, way of inhabiting one’s body. They seek to reflect this idea in the title of the book, Trans*, where the asterisk signals the project of ‘hold[ing] off the certainty of diagnosis’ and ‘keep[ing] at bay any sense of knowing in advance what the meaning of this or that gender variant form may be’ (Halberstam, 2018: 4).

Second, in temporal terms subjects such as Halberstam can be said to inhabit queer time: instead of joining the unidirectional ‘process with a destination’, instead of keeping pace with the forward movement toward a final stage, their identity enacts a conflation of time whereby the subject inhabits a ‘past’ gender which is nonetheless very current because not yet fully repudiated, and a future gender which is nonetheless not at all distant insofar as the author at times gets misidentified as male until they speak with their ‘“fluty” voice’ (Halberstam, 2018: 154). Halberstam notes that, depending on who they are speaking to, they are referred to Jack, Judith, or Jude, such that former and current names; historical and contemporary identities; past and present selves, co-exist on the same temporal plane. To disrupt the linear narrative of time even further, they note that one way of thinking about this category of selfhood is as a kind of perpetual transition. To be ‘perpetually in transition’ is to inhabit a form of timelessness, a zone where the imperative to grow is suspended (Halberstam, 2018: 154). The narratives that underpin the queer life modes theorized here constitute powerful ‘sexual vernaculars’, or different ways of speaking time, that problematize the transnormative narratives entrenched and perpetuated by the register of the law (Halberstam, 2005: 53). The asterisk in Trans* can therefore also be read as an invitation to imagine different vectors of time. ⁵

In Hong Kong, there is a paucity of quantitative data on the range of gender identifications within the trans community, but through the few who are willing to step forward and speak out, we get glimpses of the existence of transqueers who do not subscribe to the gender structures of existing policies, frameworks, and legal cases, and who are therefore excluded from the domain of rights protection in the city. These are transgender subjects who, in Halberstam’s term, seek to realize a life ‘unscripted’ from the dominant cultural and temporal narratives (Halberstam, 2005: 2). A case in point is Vincy Chan, a songwriter, artist, and transgender activist who identifies as non-binary. With their short hair and androgynous clothing, they present themselves in a gender neutral fashion and speak of multiple occasions of being misgendered. Chan observes that ‘when people talk about trans identity’ in Hong Kong, ‘it is immediately associated with transitioning and surgery’ (Creery, 2018). The narrative of a normative or proper trans maturation process resonates so strongly that ‘even in the trans community […] a lot of them are still stuck on this idea that you have to, even as a trans person, be either male or female, and go through certain procedures to prove your trans identities’ (Creery, 2018). It has also impacted their intimate life: in a Ted talk at the University of Hong Kong, Chan recalls a conversation with a former boyfriend who expressed discomfort at the idea of Chan transitioning. By assuming that Chan wants to, or is likely to, transition, he unwittingly imposes a naturalized understanding of how trans life unfolds upon Chan. ⁶ He also asks them: ‘If you identify as non-binary trans, what does that make me? Am I still straight?’ (Tedx Talks, 2019). The question here reflects a potential disruption of normative temporal narratives not only for Chan, but for him as well: their gender expression raises questions in his mind about his own ability to accede to the ‘hetero time lines’ of marriage and family (Dinshaw et al., 2007: 183). Through their activism, music, and artwork, Chan attempts to convey to Hong Kong society the experience of being trans and queer in the city.

Echoing Chan’s observations is Law Siu-fung, a body builder who self-identifies as genderqueer. Law feels similarly distant from conversations about trans identity and trans rights that are mostly concerned with ‘physical transitions’ (Chan, 2017). Law does not regard sex reassignment surgery as necessary or desirable: ‘I knew from the very beginning that I did not want any surgeries. Not only because of the health risks, but I don’t like the scars, so it’s a very personal issue for me’ (Chen, 2018). They also confess to being a ‘perfectionist’ who would likely ‘feel disappointed if surgery didn’t go the way I expected’ ( Hong Kong Magazine, 2016). Law sees bodybuilding as a method ‘other than surgery’ to achieve their ‘ideal body’. They note that with bodybuilding, it is possible to sculpt their chest ‘into a “man’s chest” without going under the knife so to speak’ (Chan, 2017). Their gender expresses itself as ‘a blend of everything’, such that when a salesperson asked Law’s father about Law’s gender, he could jokingly say ‘Take a guess!’ ( Hong Kong Magazine, 2016). The articulation of the genderqueer experience by figures such as Chan and Law constitute rare examples of ‘disorderly narratives’ (Halberstam, 2005: 187) which expose, reconfigure, and disrupt stories about trans identity and development that are taken for granted not only by broader Hong Kong society, but also by many people in the local trans community such as those alluded to by Chan earlier in this section. Overlooked by mainstream society until recently, misunderstood by most friends and colleagues, and unacknowledged by the law, they speak from a queer time and place to push back against the parameters established by the W case. In the remainder of this article, I examine the idea of being in a queer time and place in a legal context.

Trapped in a Queer Time and Place

It is necessary to probe what it might mean to be in a queer time and place, especially as the idea shifts from the frame of literary and cultural criticism to that of legal analysis. Halberstam identifies queer times and places with queer subcultures, or ‘counterpublics’ whose norms, values, sensibilities, and styles are not in sync with those fostered by hegemonic cultural narratives, and which could hence constitute ‘modes of being and becoming’ that ‘scramble’, among other things, our understanding of ‘development’, ‘action’, and ‘time’ (Halberstam, 2005: 187). They name as instances of such counterpublics drag king shows, slam poetry readings, queer punk bands performances, and other events of subculture formation which usually occur in close proximity to us – ‘nightly in a club near you’ – but which go unnoticed by people in mainstream society (Halberstam, 2005: 186). They call for the writing of ‘a queer history of subcultures’ which bring to our attention the significance of collectivities and individuals currently falling ‘outside the neat models of narrative history’, and which ‘still need to find a place in the winding, twisting story of queer subcultural lives’ (Halberstam, 2005: 187).

For Halberstam, queer times and places are to be celebrated, prized, applauded, extoled: they represent fertile moments and venues for telling alternative life stories, experimenting with different modes of self-presentation, and developing literary or musical genres to convey diverse experiences. Looking at the legal cases, however, it becomes apparent that there is a darker side to the idea – within a legal universe premised upon normative narratives, trans people can be relegated to queer times and places not of their own choosing and from which they struggle to escape. To be subjected to legal regulation could also mean being subjected to law’s temporal structures, and inhabiting queer times in a legal frame could mean being trapped in time out of joint. In this section and the next, I discuss two recent trans rights cases in Hong Kong to illustrate the discursive processes through which queer temporalities become contained within the law.

In Navarro, R, a 19-year old male-to-female transgender person from the Philippines who has not undergone surgery, entered Hong Kong on a visitor’s visa and was found to have offered sex services in exchange for money, and to be in possession of suspected dangerous drugs. They were convicted of drug trafficking and breaching their conditions of stay, and detained in male correctional facilities. As a transgender immigrant sex worker, R can be understood as the epitome of the queer subject, and their situation starkly exposes the assumptions that permeate legal time. As a sex worker, R does not readily conform to the naturalized ascension to respectability in the form of monogamous marriage and nuclear family. Moreover, in a city where many Filipinos work as domestic helpers for Chinese families, discriminatory attitudes make the likelihood of marrying locally even slimmer (Au, 2018). Finally, R’s identity is one in which old and new genders coincide, in which female morphological traits and male genitalia are simultaneously found on the same body. The expression of their gender identity again suggests that trans life does not necessarily follow that unidirectional, future-oriented movement from male to female, or that fixed tempo from singleness to domestic conjugality, which W laid down as the discursive foundation of rights. Through someone like R, we see how factors such as immigration status, ethnicity, and gender can intersect with law to marginalize and exclude trans subjects by making it more difficult for them to subscribe to the temporal trajectories necessary for legal protection.

R was not only placed in male facilities, but was assigned to single cell custody within the facilities at night (paragraph 34). They contended, inter alia, that the government’s decision to place them in such conditions was unconstitutional. The government argued that it could not place R in female facilities because their possession of intact male genitalia meant that they posed ‘potential risks’ to the female inmates. At the same time, the government argued that R’s ‘outward female appearance’ and their ‘feminine physique’ meant that they could not be placed in shared accommodation with the male persons in custody either, because such an arrangement would expose R to a substantial risk of sexual harassment by men (paragraph 5). Furthermore, R could not be allowed to participate in sports or games with the male inmates as ‘close body contact’ with them would increase the risk of harassment (paragraph 34). On the point about the so-called ‘detention decisions’, the court held against the applicant.

R’s interrogation of normative temporal narratives results in their sequestration to a single custodial cell at night, and the deprivation of their basic interactions with both men and women in the day. Their bathroom and shower arrangements further reflect the extent of their isolation: the male toilet and shower room in the facilities are searched and cleared before R enters to ensure that no other inmates are present. Partitions are then erected, and supervising staff stand guard to prevent other people from entering (paragraph 34). R’s carceral experience is marked by solitude. The custodial arrangement here is in effect an excision from the gender order, a constant reminder of R’s status as misfit, and an institutional configuration to ensure that gender nonconformists serve their sentence with little or no companionship. While the court was right to agree with the government that measures to ensure R’s safety from male harassment were necessary, its concurrence that they should not be allowed to associate with female inmates is premised on what Peter Dunne calls an unsubstantiated ‘penis as predator’ logic whereby trans people with male genitalia are assumed to be menacing to women (Dunne, 2017: 548). Analyzing law’s power over transgender subjects through the concept of a queer time and place brings into focus its exclusionary practices: in contrast to Halberstam’s drag king shows which open up multiple possibilities of gender performance, R’s insolation on the ground floor of the detention center demonstrates how law shuts off and ultimately casts out those people who do not follow its normative narratives.

Moreover, the law’s assumption that the construction of R’s sexed identity construction is only in medias res makes it impossible for them to establish a claim of gender identity discrimination. To establish such a claim, R needs to show that they are in a comparable situation with another group in the detention facilities (Navarro: paragraph 77). However, the binary gender order of the law means that their male genitalia puts them in a materially different position from that of a woman, while their feminine features puts them in a materially different position from that of a man (paragraph 87). The court therefore holds that there is no comparator against whom R can prove unjustified differential treatment. In other words, gender identity discrimination can only be established if one makes the claim from the presumed end stage of the law’s trans life narrative, as someone the court considers to be a complete man or woman. The Navarro case constitutes an instance of how the law transforms queer time into both endless solitude and a state of unachieved maturation, and queer places into a kind of elsewhere in which forms of community, even communal showers, are remade into solitary spaces.

In contrast to the outcome of the challenge to the detention decisions, R succeeded in arguing that the government had unreasonably delayed in providing them with hormone replacement therapy. The court found that the medical officer should have referred R to the visiting consultant psychiatrist earlier, and that R should not have had to wait almost 16 months for medical treatment. On this point, the court readily found in favor of the applicant, and this section of the judgment is markedly shorter than the section on detention. The ruling here is of course a victory for the litigant, who is fighting for the basic medical support they need to remain who they are. Yet thinking about the temporal implications of this part of the legal reasoning, it is possible to detect an anxiety about temporal relapse in the judgment: without the hormones, the transgender subject could move backward in time, sliding away from the envisaged end point of the acquired gender and toward the birth gender. The judicial narrative begins by foregrounding time: R has been taking female hormones ‘for seven years’ (paragraph 301). Picking up on a description by one of R’s lawyers, the judge underscores that R is ‘already feminized’: they have ‘soft and hairless skin’, a ‘gentle voice’, and do not have an Adam’s apple (paragraph 301). He also notes that they have undergone breast augmentation (paragraph 301). R is therefore already quite far along in their journey to the presumed final destination of full womanhood. Should hormone replacement therapy be withdrawn, the past identity would appear again: ‘male bodily features’ such as increased body hair, rougher skin, and a deeper voice would re-emerge, and the Adam’s apple would also become increasingly prominent (paragraph 301). Operative in the judicial language here is a metonymic construction of sexed identity, whereby different body parts – a deepening voice, a protruding Adam’s apple, thickening chest hair – coalesce to form images of an unnatural, even monstrous, regression to the birth gender. ⁷ This back-to-the-future state of affairs proved too much for the court to bear; linear time must be preserved at all costs. As we will see below, fears about temporal relapse are also at the core of the Tse judgment.

Families of the Future?

In Tse, the latest trans rights case in Hong Kong, three female-to-male transgender individuals who have not undergone surgery challenged the government’s refusal to allow them to have their chosen gender reflected on their identity cards until they have had gender reassignment surgery. It is the first direct challenge to the surgery requirement. Tse, along with Q and R, argued that the policy violated their right to privacy and their right not to be subjected to cruel, inhuman, or degrading treatment, and also argued that it constituted a form of indirect sex discrimination. On the first ground, the court held that the completion of the surgery is the only objectively ascertainable criterion for the administrative determination of gender, and the policy is therefore not disproportionate (Tse: paragraph 54). On the second ground, the court held that the suffering or pain involved in the surgery was not sufficiently severe to amount to cruel, inhuman, or degrading treatment, and that in any case the operation is only carried out with the subject’s consent (paragraph 82). On the third ground, the court held that there was no evidence to show that the surgery was more disadvantageous or burdensome for female-to-male transsexuals than for male-to-female transsexuals, as the applicants tried to claim (paragraph 111). The court held against the applicants on all three grounds.

In assessing the claims, the court underscores that, had the applicants succeeded, the outcome would have posed a significant threat to the gender oppositions that undergird government policies on such diverse issues as elderly care homes, family crisis support centers, and single-sex schools (paragraph 24). At one point in the reasoning, the court engages in a telling thought experiment, a short fictional narrative in which it imagines a future with no surgery requirement:

If a female-to-male pre-operative transsexual is allowed to change the gender on the identity card to male, but then he stops the hormonal treatment and recovers fertility and gets pregnant, what are the implications of the holder of the male identity card giving birth? How does that person go about taking care of the baby, especially when he needs to show his identity card (for example to apply for schools): is he the mother (which she really is) or the father (which the identity card appears to suggest that he is)? (paragraph 57)

The English case of R (on the Application of TT) v. Secretary of State for Health and Social Care [2019] EWHC 2384 (Fam) (hereafter TT) goes unmentioned in the Hong Kong judgment, perhaps because the ruling had not yet been handed down at the time of Tse. This case is pertinent here because it realizes the very scenario the court describes. In TT, a female-to-male transsexual who has not undergone full sex reassignment surgery received fertility treatment prior to receiving their Gender Recognition Certificate under the Gender Recognition Act (2004) (hereafter ‘the 2004 Act’), ⁸ and gives birth after having their male gender confirmed. TT, whom both the High Court and the Court of Appeal refer to by the pronoun ‘he’, made a documentary about his own situation as a man giving birth to a child, as a result of which the President of the High Court Family Division varied his anonymity order, and the case continued in the Court of Appeal under his actual name, Alfred McConnell (R (McConnell) v. Registrar General [2020] EWCA Civ 559). McConnell contended that he should be registered as the child’s father on the child’s birth certificate, while the government argued that he should be registered as the child’s mother given that McConnell performed the biological role of carrying and then giving birth to the child. The High Court held in favor of the government, and the ruling was affirmed in the Court of Appeal.

Even though McConnell lost at both levels, his case nonetheless indicates that it is possible to write the temporal narratives of the law differently. In TT, the High Court moves away from a presentist view of the facts by pointing out that even though the litigant’s challenge to legal categorizations seems completely unprecedented, the courts have addressed comparable issues before: in R (on the application of JK) v The Secretary of State for the Home Department & Anor [2015] EWHC 990 (Admin), for instance, a transgender woman who was the father of two children was legally recognized as female, but remained registered as their ‘father’. The court points out that neither the concept of a ‘female father’ nor that of a ‘male mother’ is ‘unknown’ to English law (TT: paragraphs 141–142). It therefore suggests not only that past and present identities can coexist, but that the distinctions between current controversies and past disputes are not as firm as they may seem to be at first glance. Moreover, it notes that Section 12 of the 2004 Act, which governs parenthood, is both ‘retrospective’ and ‘prospective’ in effect (TT: paragraph 144), a point affirmed in the Court of Appeal. The construction of the provision as one which looks forward and backward at the same time further scrambles the temporal linearity which the Hong Kong courts seem to regard as unassailable. Finally, the fact that McConnell’s life script can be part of the law’s narrative, even if not in the exact way he would have liked, shows that the future scenario imagined by the judge in Tse already exists in the present, in a parallel time and place where family life does not have to be founded on coupledom; where seemingly self-evident categories such as fatherhood and motherhood can be interrogated; and where transgender subjectivities that do not conform to the linear narrative of full transition can be given legal recognition without the world collapsing into chaos.

In Lieu of a Conclusion

In light of the foregoing discussion, we need to be careful about coming to any easy conclusions that the time of an idea has come. In the case of transgender rights in Hong Kong, some parts of the trans community have gained greater visibility, but existing legal cases that perpetuate transnormative narratives of time marginalize and exclude from the rights regime transqueer people who do not, or cannot, have sex reassignment surgery and who do not regard their future as oriented toward full transition. Rather than attempting to posit any definitive end point to my own narrative, and in lieu of a conclusion, I will here examine the temporal implications of one more significant, but judicially overlooked, moment in the cases. In Navarro and Tse, counsel for the applicants argued that the Yogyakarta Principles should be important considerations for the courts in the process of rights adjudication. ⁹ These principles, formulated by a group of human rights experts in 2007, and updated as the Yogyakarta Principles plus 10 in 2017, develop and consolidate international standards on the application of international law to human rights violations based on sexual orientation and gender identity. ¹⁰ In particular, Principle 3 states that no one shall be forced to undergo medical procedures, including sex reassignment surgery, sterilization, or even hormone therapy, for the legal recognition of their gender identity. ¹¹ In the 2017 version, Principle 31 stipulates that states shall include on identity documents only personal information that is ‘relevant, reasonable and necessary’ for their purposes, and as such shall ‘end the registration of sex and gender identity in identity documents’. ¹² It further stipulates that should sex or gender continue to be registered, states shall make available ‘a multiplicity of gender marker options’.

The courts in both Navarro and Tse dismissed the principles as merely ‘aspirational’ and set them aside in a single paragraph (Navarro: paragraph 305; Tse: paragraph 117). Yet this characterization goes against the grain of the language of these principles, in that both versions underscore that they are meant to reflect the ‘existing’ ¹³ or ‘current’ ¹⁴ state of international human rights law. Moreover, the self-determination of gender has already become a concrete possibility in some countries, as has the legal recognition of gender categories beyond the binary opposition of the current order. In Asia, the courts of India and Nepal have held that transgender individuals have the right to self-identify as a third gender, without the need for sex reassignment surgery, and in doing so both courts made reference to the Yogyakarta Principles. ¹⁵ Moreover, Pakistan’s Transgender Person (Protection of Rights) Act (2019) enshrines the right to the self-determination of gender, and explicitly stipulates that identities can include ‘male, female, or a blend of both or neither’. ¹⁶ Of course, changes such as the introduction of new gender markers or the abolition of gender markers on identity documents require detailed examination, and there may be arguments for limiting the requirements mandated in Asian jurisdictions such as India, Nepal and Pakistan to places where non-binary genders have a comparably long recorded history. My point is that, by characterizing the Yogyakarta Principles as no more than ‘aspirational’, the Hong Kong courts return to a linear narrative of futurity which indefinitely postpones the need to consider them, locating those principles in a Neverland that does not come into view, and thereby closing off the possibility of even starting a legal, legislative, or broader societal discussion of their potential relevance. This is one further instance of how the logic of futurity can hurt trans subjects – the idea of the future is deployed here as a way of deferring, potentially indefinitely, the recognition of their humanity. Troubling the temporal narratives that underpin the courts’ reasoning can help us to restore the immediacy of those principles, and to conceive of an alternative temporality that locates the future in the present, the still-to-come in the now.