Transsexuals are individuals with a compelling desire to change their physical sexual characteristics either from male to female (MTF) or from female to male (FTM). The condition is recognised internationally as justifying treatment. The current American Psychiatric Association Diagnostic and Statistic Manual of Mental Disorders, DSM-V, speaks of ‘gender dysphoria’, a change from the earlier classification of ‘gender identity disorder’. The World Health Organisation’s ICD-10, speaks of ‘transsexualism’. Medical standards require (a) a diagnosis of the condition, (b) counselling, (c) hormonal therapy, and (d) two years living in the desired sex, before there can be approval of genital surgery. The standards were developed by the World Professional Association for Transgender Health (formerly the Harry Benjamin International Gender Dysphoria Association, formed in 1979).
Sex-reassignment surgery only began to be available in the West in the 1960s. The first surgery in Thailand was in 1972. It is a medical specialisation, which means that availability is dependent upon particular doctors and particular hospitals or clinics. Sex-reassignment surgery is provided without cost by government hospitals in Hong Kong, but in 2011 there was a backlog of 107 persons waiting for surgery (Cheung 2012). Individuals often travel to Thailand for surgery, where there are a number of private hospitals and clinics, medical competence, and reasonable costs.
Access to treatment, availability of document change, and the right to marry vary greatly in East Asia. Not all countries allow the procedures. Vietnam limits surgery to intersexuals (persons born with ambiguous genitalia), prohibiting it for transsexuals (AFP 2008). Document change is possible in China, Hong Kong, Japan, South Korea, Taiwan and Hong Kong. Information is lacking on Mongolia and North Korea.
In 2004 a ruling by the Hong Kong Equal Opportunities Commission allowed education documents to be changed for transsexuals (The Standard 2004). The South Korean Supreme Court in 2006 ruled in favor of document change, as upholding human dignity, referred to in the nation’s constitution. The goal was to allow a transsexual to gain ‘social acceptance as a normal member’ of society as a person of the changed sex (ICJ 2011: 181). In Taiwan the Family Registry will record the change, while retaining, as well, the original data on sex. The change can affect the birth order of siblings (for example, the first daughter may now be the second daughter, if the male-to-female transsexual is the oldest child).
Document change enables marriage in the new sex. A judicial ruling in 2013 in Hong Kong allowed a change to the birth certificate, allowing marriage in the post-operative sex for the first time in the jurisdiction. In the region under discussion marriage in the newly recognised sex is possible in China, Hong Kong, Japan, South Korea, and Taiwan.
There have been many problems reported with preconditions either for surgery or for document change, showing that a very restrictive mindset still often prevails in much ofthe region. Preconditions are extensive in China, Japan, and South Korea. The PRC, for example, requires (a) a diagnosis of gender identity disorder, (b) genital surgery, (c) no existing marriage, (d) 21 or older, (e) no criminal record, (f) two years living in the desired sex, (g) five years wanting the change, and (h) a year of psychological treatment. Local police must also agree to issue a new identification card after the sex change, according to a local informant in Kunming. Japan requires that the individual be unmarried, have no underage children, now be sterile and have genitals which have the appearance of the new gender (Law Concerning Special Rules Regarding the Sex of Individuals with Gender Identity Disorder, enacted 2003, effective July 2004).
The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, formulated by an international group of experts in 2006, specifically condemn limiting conditions for the recognition of the desired sex. They specify that no one should be forced to undergo medical procedures, including surgery, sterilisation or hormonal therapy as a requirement for legal recognition of their gender identity. No status, such as marriage or parenthood, should be invoked to prevent the legal recognition of a person’s gender identity (Yogyakarta Principles 2006).
The European Court of Human Rights has ruled that the pre-condition of a divorce before recognition of the changed sex is a violation of rights (H v Finland 2012). Newer laws typically do not require genital surgery or sterility. The individual must simply be diagnosed as transsexual and be living in the desired sex on a day-to-day basis. This new pattern was set by the 2004 Gender Recognition Act in the United Kingdom. Genital surgery is not required in Spain since 2007 and Argentina since 2008. In each case, however, a diagnosis of gender dysphoria must have been made. A media story in 2012 said Taiwan was considering following this lead (Wei and Chung 2012).
In Japan, someone who has undertaken sex reassignment and changed the sex on their family register (koseki) can now marry in the newly recognised sex. A 2012 decision of the Tokyo Family Court upheld a decision not to recognise the paternity of a female-to-male transsexual, legally married to his wife, of a child born during the marriage, the result of donor insemination. Without the FTM background of the husband, such a birth would result in the registration of the male spouse as father. The decision was overturned by the Supreme Court in early 2014.