Queer Asia | Essay Prize, Runner-up
Ausma Bernotaite looks at the issues surrounding Legal Gender Recognition (LGR) in China
“Ah, it’s the third one this week, I really need to go to sleep now”, says L.X. while working one more evening of late night overtime at a trans center in Guangzhou, China. We talk about providing legal advice and – if needed – protection to yet another teenage trans girl fighting her family who are denying her identity and trying to stop her from going further in her transition. She runs away to another city in the hope that her friends and older sisters will support her decision to transition as a teenager. Within the community she is considered quite lucky as her parents and friends don’t stalk, beat or threaten to kill her, don’t forbid her going to school and still support her financially. She is one of the lucky few trans teenagers who stand firm by their identities, while their families and schools do not.
Domestic violence is one of the most serious issues facing trans women and girls in China today.
Parents hope to convert them into being their “sons” once again, as patriarchal expectations of sons – in terms of holding space and face for their families – are still commonplace, especially in rural areas. Moreover, representations of trans issues in educational materials and mainstream media, and even LGB spaces, are still widely missing. Historically, there have been representations of trans and intersex people but, as Howard Chiang explains, there hasn’t necessarily been an attempt to create trans discourses and local identity politics. The word that is most presently used must be “kuà xìngbié”, 跨性别 – a literal translation of the word “transgender” and the most popular identity word that can be used both as a noun and an adjective, alongside MTF (Male to Female) and FTM (Female to Male). These and other borrowings from the English language increased in popularity in the 1990s in Hong Kong and further travelled into Mainland China with their own interpretations and adaptations.
While Legal Gender Recognition (LGR) of change between binary genders of “male” and “female” is currently officially recognized in China, new markers are only allowed once the “whole set” of gender affirming surgeries (GAS) are complete, as per definition in official gender change documents, and only with notarized parental consent. Historically, despite there being no fierce discourses around trans identity politics, the 1990s saw an increase in unregulated GAS. The current set of regulations was drafted in 2002 to guide GAS and in 2008 to help people having completed GAS to change their official documents. While it was a big step aimed at regulating a messy situation where hundreds of trans people were being “treated” by unlicensed doctors and non-specialist clinics, the creation of regulations heavily relied on Western medical thought and was based on the International Classification of Diseases (ICD) manual published in 1994 (ICD-10), and consequently instilling concepts of pathologization, Gender Identity Disorder and its treatment in interpreting trans identities. A recent case of a trans man fighting for compensation over alleged transgender discrimination illustrates the difficulty for trans people in navigating the rigid rules grounded in pathologized trans identities, which invalidate trans people who do not seek medical trans-related care and are thus barred from changing gender markers on their official identity cards.
Bangladesh, Pakistan, India and Nepal have turned the tide as they bypass the current ICD-10 advice and centre attention on formal LGR to pass LGR laws acknowledging the existence of trans people and grant them legal rights.
Despite these existing examples from Asian countries, China is unlikely to follow lead in the short term due to a lack of tolerance for its civil society and increasing censorship of trans organizations.
Nevertheless, the next version of ICD, planned for release in 2018, will have received feedback from trans-led organizations from around the world and, should depathologization be a part of it, many medical professionals in Asian countries basing their own medical regulations on international manuals will have strong ground to further advocate more flexible legal gender recognition laws.
However, GAS and consequent gender recognition is just one of the many legal hurdles that trans people will have to jump over to smooth sailing. Lack of legal protections for trans people and increasing government censorship in China is a deadly combo that both doesn’t defend and instead criminalizes trans identities in the country, as the recent case of the hospital surgery photo leak illustrates.
My fiancée is a woman who also happens to be trans, and who will probably never be able to receive her graduation certificate due to anti-trans feminist activism at universities, let alone receiving a diploma with the correct gender marker. Should she be able to change her gender marker on the Chinese ID card, a gender marker change on a university or college diploma would still be invalidated. Additionally, under the wing of the present anti-domestic violence law, as well as teenager protection laws, trans teens can seek help, but the intersection of “trans” and “violence” can sometimes lead to complex interpretations of what constitutes domestic violence.
In light of the extreme violence that trans people face in China, inflexible legal gender recognition rules and a lack of gender protection law, it’s time to understand the roots of legal discrimination against trans people in China, and define the actual needs of trans people. As trans organizations work arduously to serve their communities and struggle to survive in a country that aims to quieten their existence, the questions of both how to survive and how to aim for desired change hang in the air frozen.
‘Queer’ Asia ran a blog contest in partnership with Zed Books on the theme of our 2017 Conference ‘Desire, Decolonisation and Decriminalisation.’ This essay is our runner up piece. It was first published on the Zed Books website.
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