What is “Transgender”? The Controversy of Legal Gender-Change Without Proof-of-Surgery in Taiwan

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This article is part of the 33th issue of LEAP — Voices of Youth e-letter. Subscribe now.

(Source/Unsplash)

The broadest definition of “transgender” is when a person’s gender identity differs from their biological sex at birth. In that case, controversy arises over whether“trans-men/trans-women” are to be considered the same as men/women.

This question has been sparking much discussion among online social communities. Some feminists who oppose equating trans-men/trans-women with men/women have been writing articles and creating memes that mock the blurring of the modern definition of gender. In turn, these feminists have been dubbed trans-exclusionary radical feminist (TERF) by many transgender activists.

The laws and regulations relevant to “gender change” have also been updated in various countries. Currently, more than 30 countries around the world allow citizens to change their gender without undergoing a sex reassignment surgery (SRS). A few countries even allow the change of gender without any proof from transgender people.

As the first country in Asia to legalize same-sex marriage, Taiwan’s gender equality index has always ranked near the top in the world. What about the current status of transgender people’s rights and interests in Taiwan? Let’s take a look starting from the controversy of “legal gender-change without SRS requirement” that erupted in recent years.

What are the pros and cons?

According to an executive order promulgated by the Household Registration authority in Taiwan, the requirement for someone to legally change their gender includes a certificate of gender dysphoria (GD) issued by two psychiatrists as well as an SRS to remove their original sexual organs. It is important to be aware that this executive order lacks a legal basis and has not passed a third-reading at the legislature.

Proponents of gender-change without surgery believe that the requirement not only violates human rights, but also ignores the diversity of transgender people. “If we all believe that gender identity is a spectrum, then why can’t we acknowledge the fact that the needs of transgender people to alter their body is also a spectrum?” As a trans-woman who has not undergone SRS, Lisbeth Wu says that every transgender person feels a different level of aversion to their own body. She herself is an example of a trans-woman who can accept retaining her male sexual organs. Regarding the existing requirement of surgery before a change in gender identification, she said bluntly: “Are you [transgender person] the one who wants the surgery, or is society forcing surgery on you?”

“Many people spend their whole lives chasing the goal of getting surgery, but it’s an elusive objective.” She clarified that many transgender people cannot afford SRS due to the high cost of surgery, which is not covered by the National Health Insurance in Taiwan. In addition, many transgender people are not able to find steady employment because of workplace discrimination. Without SRS, they cannot obtain an ID card matching their gender identity.

On the other hand, opponents of gender-change on ID cards without surgery believe that when gender-change becomes “effortless”, some with the physicality of men will enter into female spaces in the name of “trans-women”. For example, men may choose to compete in women’s sports to gain unfair advantages. Or, women may be uncomfortable with the appearance of male sexual organs in spaces exclusively for women, or become exposed to more risks of violence by men. They bring up a case in the U.S., when some men exposed their genitals in female spaces in the SPA, or another case in Britain when a trans-woman without SRS sexually assaulted female inmates in a women’s prison.

Various countries including Taiwan have been debating the issue of whether cisgender and transgender people should be considered the same gender. (Source/Unsplash)

Two Court Judgements Handing Over Legal Disputes to Constitutional Interpretation

The Taiwan Alliance to Promote Civil Partnership Rights (TAPCPR) is an organization that has long sought to abolish the surgery requirement prior to legal gender change. TAPCPR Secretary-general, Chien Chih-Chieh, once said during an interview that the rights of transgender people have been less visible in the last decade due to public focus on the issue of same-sex marriage. After two recent court rulings, the online debate for and against surgery-exemption legal gender change have drawn greater attention.

In September 2021, the Taipei High Administrative Court ruled in favor of Xiao E, a trans-woman without SRS, stating that the provisions on gender change requirements lacked a clear legal basis. She underwent a long-term psychiatric evaluation and was certified by two doctors that she mentally and socially identified herself as a woman. Thus, although Xiao E did not undergo SRS, the Household Registration authority was ordered to change Xiao E’s gender registration. This was the first successful legal case of surgery-exempt gender-change in Taiwan, but it was handled on a case-by-case basis without requiring any legislative amendment.

Two months later, in Lisbeth’s lawsuit for surgery-exempt legal gender-change, the judge had stated that the executive order followed by the Household Administrative authority was potentially a constitutional violation. The trial has thus been suspended awaiting a constitutional interpretation.

Is it possible for Taiwan to become a country where transgender people may obtain legal gender-change without surgery? Heated discussions have been on-going in civic society, as well as at the executive and judicial branches of the government. How can we set up comprehensive legislations and relevant supporting measures for legal gender change while taking care of the needs of cisgender people? These are issues that must be communicated and dealt with after the constitution interpretation.

Also in This Issue:

From Personal Gender Dysphoria to Trans-Empowerment: Lisbeth Wu’s Trans-Life

With her case taken to the Constitutional Court, Lisbeth Wu is dedicating her life experiences to protecting other transgender people in Taiwan.

Author : Lin Si-hou

Freelance journalist exploring gender and public issues.

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