Law, film, and trans identity in Hong Kong

Abstract

This article examines the construction of trans identity in Hong Kong law and cinema. By juxtaposing the key Hong Kong court cases on trans rights and some recent feature films on trans experience, it argues that film can reproduce and reinforce the understanding of identity in the court cases, and that they can unwittingly perpetuate the dynamic of exclusion enacted in those cases. Law and popular film may seem to be distinct discursive domains, but their constructions of trans identity are in fact intertwined. The article contends that to break out of these limiting identity formulations, we need to move beyond the dominant imaginaries of law and popular culture. It offers one way of doing so by turning to independent queer filmmaking as a forum for articulating and recognizing alternative trans subjectivities.

1. Introduction

At first glance, no two cultural domains seem further apart than law and film. Law courts are sites of solemnity: they are places where judgment is rendered, the scope of rights is defined, and fundamental questions about the meaning of justice are posed. By contrast, cinemas are usually regarded as sites of entertainment: they are places we visit for pleasure, or for a diversion from reality. In recent years, however, interdisciplinary scholarship in “law-and-film” studies has put pressure on this bifurcation, and has sought to demonstrate the complex entanglements between the legal and the cinematic. At the core of this body of scholarship is the question: “What is the relationship between film and the law?”¹ In this article, I take the representation of trans identity in Hong Kong, my home jurisdiction, as a point of entry into this question. How do courts construct trans identity, and in what ways is the legal representation of identity similar to, or different from, cinematic representations? Hong Kong is an especially fruitful site of investigation because trans rights have been the focal point of litigation in the law courts in recent years. As public interest and awareness about trans issues grew, representations of trans identity began to appear in other places, including the cinema.

Within the legal domain, the landmark case on trans rights is W v. Registration of Marriages.² In that case, the Court of Final Appeal (CFA) held that a post-operative male-to-female trans person had the right to marry in her new gender under Article 37 of the Basic Law.³ For many people in the local trans community, the ruling marked a turning point in the recognition not only of their rights, but of their very existence. Yet the CFA restricted the right to marry to those who have undergone sex reassignment surgery (SRS): in other words, it restricted the right to those who have undergone both breast surgery (breast augmentation for male-to-female (MtF) trans individuals, breast removal for female-to-male (FtM) trans individuals) and genital surgery (removal of the birth genitals and construction of genital organs of the true gender). As such, the decision was disappointing for those trans individuals who did not, or could not, undergo such surgery. These individuals included Q and Henry Tse, both of whom had surgery for breast removal, but did not want to have genital surgery. Their case, Q and Tse Henry Edward v. Commissioner of Registration, concerned whether a trans person who has not undergone SRS can change the gender marker on their identity card, with the applicants arguing that they should be entitled to do so. The Court of Appeal (CA) affirmed the decision of the lower court and held against them.⁴ The litigants’ appeal to the CFA is pending at the time of writing.

Within the popular cultural domain, there appeared a number of films about the experience of being trans in Hong Kong. Jun Li’s Tracey (2018) portrays the life of a person in their fifties who self-identifies as a woman, but who is born with a male body. In Maisy Suen’s A Woman Is a Woman (2018), a MtF trans individual tries to hide her past from her husband, who leaves her in a fit of rage when he discovers an old photograph of her as a boy. Tracey is the first film about transgenderism as a distinct gender identity that was screened at mainstream commercial cinemas in Hong Kong and has been extensively reviewed.⁵ It was produced, distributed, and promoted by a production company founded by the celebrity Louis Koo, and casts Philip Keung, another prominent local actor, in the leading role. A Woman Is a Woman did not receive the backing of any major production company and did not appear in major movie theaters, but it was screened on multiple occasions as part of the diversity initiatives of international banks, arts centers, and universities, and also secured funding from key institutions, such as the Arts Development Council and the Equal Opportunities Commission.

What is the relationship between the representation of trans identity produced by the law courts, on the one hand, and the representations produced by film, on the other, in this pivotal moment for trans people in Hong Kong? I contend that the answer to that question depends on the audience which the films target, and I make two arguments. First, I posit that popular films aimed at the general public often reproduce and reinforce the understanding of identity in the legal cases. By furthering the form of trans identity put forward by the law courts, filmmakers and producers give moviegoers a representation of transness which has already been made familiar to them by the high-profile cases, and in doing so they can situate their films as part of a progressive movement promoting equality and non-discrimination which ensures moral acceptability to the audience. This cinematic reinforcement of how law represents trans identity, however, also means that the dynamic of exclusion enacted in the legal cases becomes replicated in the films: the forms of identity that come within legal cognizance are foregrounded by the films, while those trans identities the courts decide to exclude are given short shrift and even erased from the realm of cinematic visibility. Popular culture and law therefore form a feedback loop which entrenches one model of trans identity and marginalizes others.

Second, I contend that to break out of these limiting identity formulations, we need to move beyond the dominant imaginaries of law and popular film. I identify independent queer film, often screened as part of queer film festivals, as a subgenre where this can occur. These films are aimed more at the queer community than the general public. They constitute a cultural form that experiments with different possibilities of identity, but are seldom considered lucrative enough to be screened at the commercial cinemas.

By asking what connections might exist between law and film, and by reading selected legal and film texts side by side, I aim to uncover an interdisciplinary relationship that is often overlooked by critics, and to expose how law operates as a crucial part of a wider cultural regulation of trans life. To understand how a society’s conception of trans identity is formed, and to obtain a more holistic understanding of the modes of regulation to which trans people are subjected, it is necessary to explore how legal constructions become registered, disseminated, and challenged in cultural discourses such as film. I will analyze both the legal and the cinematic material by adopting techniques of close reading developed in literary and film studies.

The article is set out as follows. In Section 2, I analyze the model of trans identity put forward by Hong Kong courts in the key trans rights cases, and demonstrate how those cases exclude from the scope of rights protection trans individuals whose forms of selfhood do not conform to the legal model. In Section 3, I examine Tracey and A Woman Is A Woman to investigate how popular film, aimed at a general audience, can reinforce the legal representation of trans identity as well as exclude non-legally sanctified forms of transness. In Section 4, I consider two recent short films at the Hong Kong Lesbian and Gay Film Festival, one of the longest running queer film festivals in Asia, to demonstrate independent queer film’s potential for enabling us to reimagine trans identity.

2. The legal construction of trans identity

W remains the seminal trans rights case in Hong Kong. In that case, the CFA 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,” encompasses the right of post-operative trans people like W to marry in their new gender. The Court reiterated that the Basic Law is a “living instrument intended to meet changing needs and circumstances,” and that it was no longer constitutionally permissible to exclude post-operative trans people from the scope of the provision in light of the evolution of the institution of marriage both domestically and internationally.⁶ Moreover, it underscored that an absence of majority consensus in society for extending protection to a particular group is not a reason for denying recognition of minority rights.⁷

One of the most striking aspects of the judgment is its reliance on a medical model of trans identity, and on SRS in particular as a marker of identity. The Court accepts medical evidence that SRS comprises two parts. The first part is “breast surgery”: breast augmentation for transwomen, breast removal for transmen.⁸ The second part is “genital surgery,” or the removal of the birth genitals and the construction of genital organs of the opposite sex. The Court also accepts the affidavit of a psychiatrist who states that trans people “consider themselves females imprisoned in the male bodies, or vice versa,” and that some of them “mutilate themselves in order to be rid of the gonads and genitalia they detest.”⁹ It therefore actively forges a link between surgical bodily change and legal gender, and in doing so sidelines other less invasive means of gender recognition. I call this the “surgery-centric model” of trans identity.

The insistence on the surgery-centric model in W may be due to the fact that it concerns an individual who self-identifies as transsexual; and, in fact, the Court in that case left open the question of whether SRS was essential to gender recognition in instances where an individual did not self-identify as transsexual. The Court instructed the government to establish a more comprehensive framework for gender recognition, and gave it one year to do so.¹⁰ Following the W decision, the Hong Kong government did introduce a bill for a new framework in the local legislature, but it did not garner enough votes. In the subsequent cases, the terms “transgender” and “transsexual” became conflated, so that even when a court is describing someone who does not self-identify as transsexual, it categorizes them in the terms laid down by the CFA in W. Since most of the applicants in the subsequent cases already had “breast surgery,” the legal construction of trans identity in the post-W cases center on the sole question of whether the applicant had genital surgery. On the facts of the subsequent cases, SRS became interchangeable with genital surgery.

This is evident in Navarro Luigi Recasa v. Commissioner of Correctional Services, which concerns a trans applicant, R, who self-identifies as female.¹¹ R has undergone breast augmentation and receives hormone replacement treatment, but has not had genital surgery. The Court of First Instance’s judgment begins by describing R as a “male-to-female transgender person,” but then goes on to cite the definition of “transsexualism” in the International Statistical Classification of Diseases and Related Health Problems to categorize her.¹² The interchangeability of SRS and genital surgery is evident in the court’s assertion that “R has not undergone any sex reassignment surgery,” despite the breast augmentation, because she “retained all the male genitalia intact.”¹³ On the basis of the absence of genital surgery, the court held that R could not be legally considered as female.

The latest case on trans rights is Q and Tse. The litigants are transmen. They have undergone breast removal surgery, but have not had genital surgery. They contended, nonetheless, that the gender markers on their identification cards should be changed in order to reflect their true gender, on the basis that the government policy according to which their marker could only be changed if they have undergone SRS violated their right to privacy and the prohibition against torture or cruel, inhuman, or degrading treatment. They further argued that the policy constituted sex discrimination. The CA held against the litigants on all three grounds. First, it opined that there was no violation of the right to privacy under article 14 of the Bill of Rights Ordinance, because the SRS requirement was no more than necessary to achieve the policy’s legitimate aim of having a workably, objective, and verifiable criterion for determining the correctness of the sex entry on an identity card.¹⁴ Second, it held that the SRS procedure did not rise to the level of severity which would make it come under the prohibition of torture or cruel, inhuman, or degrading treatment under article 3 of the ordinance. The Court further held that SRS requirement cannot be construed as coercion or illegitimate pressure that would invalidate consent because the requirement was justified as a matter of law.¹⁵ Finally, it held that there was no sex discrimination as there was no evidence that it was more difficult for FtM trans individuals to comply with the SRS requirement in the policy compared to MtF trans individuals.¹⁶

One premise for the Court’s insistence on SRS seems to stem from a fear that abandoning the requirement would lead to a state of gender chaos. Without SRS, the Court said, there would be “arbitrariness” and “inconsistency” in ascertaining who is male or female for the purpose of the sex entry on the identity card.¹⁷ Models adopted in jurisdictions outside of Hong Kong, such as the self-declaration model, would “make nonsense” of the biological distinctions between male and female.¹⁸ The CA’s reasoning amplifies the concerns of the lower court, which feared that allowing trans people to alter the gender markers on their identification documents without making them undergo SRS would leave the courts with “no rule” by which to identify someone as a man or a woman.

At the core of the court’s anxieties is the threat of gender “reversibility,” which the CA identifies as a “key consideration.”¹⁹ The law’s anxiety about transness is most tellingly reflected in a rhetorical question posed by the lower court in this case.²⁰ If a pre-operative FtM trans person changes their gender to male on their identity card, but resumes hormonal treatment and gives birth to a child, then what, the lower court asks, would be the relationship of that person to the child? Would that person be “the mother (which she really is) or the father (which the ID card appears to suggest that he is?).”²¹ This question evinces a profound suspicion of people who have not undergone SRS as being truly trans; it is based on the assumption that, unless and until someone has had SRS, they can always change their mind and are therefore not fully committed to their new gender. By holding that only post-operative trans people can have their gender markers changed, the court concomitantly casts those without the surgery as having a less complete, and less legitimate, trans identity. The question also presumes that trans people without SRS are hazardous to the family because it regards the determination of parental roles and responsibilities as premised on the gender binary.²²

One of the key authorities cited in both the CA and the lower court is the English House of Lords case of Bellinger v. Bellinger, in which a post-operative MtF trans person sought a declaration that her marriage to a man was lawful. The CA relies on Bellinger to posit that the SRS requirement should be upheld because it is in effect a process which aims to “make the individual feel more comfortable with his or her body. . . it is an attempt to allow the person’s body to approximate to how they feel within themselves.”²³ The lower court underscored Lord Nicholls’s concerns in Bellinger that without some “objective, publicly available criteria,” the laws on gender recognition would be left “in a state of complete confusion.”²⁴ While it seems sensible for the Hong Kong courts to turn to the discussion in the House of Lords here, what they leave out is the entire aftermath of that decision.

In Bellinger, the House of Lords held against the claimant, but made a declaration under section 4 of the Human Rights Act that the provision stipulating that a marriage would be void if the parties are “not respectively male and female” in the Matrimonial Causes Act was incompatible with articles 8 (on the right to respect to private and family life) and 12 (on the right to marry) of the European Convention on Human Rights.²⁵ One year later, the UK Parliament passed the Gender Recognition Act (GRA), and the Act allows trans people who have not undergone SRS to change their gender.²⁶ More importantly for my purposes, the GRA directly addresses the Hong Kong Court’s concerns about subjectiveness, caprice, and unpredictability in relation to gender identity. Under the Act, a gender recognition certificate will only be issued to an applicant if they (i) are diagnosed with gender dysphoria; (ii) fulfill the requirement of living in the acquired gender for two years; (iii) intend to live in the acquired gender until death; and (iv) meet a number of evidentiary requirements.²⁷ Through these criteria, the Act brings within the realm of legal visibility those trans people who do not opt for genital surgery, either by choice or for medical or financial reasons. While acknowledging that objective, public criteria are needed for a change in gender to be legally enacted, the Act also recognizes that trans identity is more diverse, and complex, than can be addressed by the question of who comes onto the operating table. In recent years, the GRA itself has come under intense criticism in the United Kingdom for imposing overly stringent requirements. In its report entitled Transgender Equality (2016), the House of Commons Women and Equalities Committee noted that the GRA, while progressive when it was first passed in 2004, was becoming “outdated” given the growing acceptance of principles of self-declaration in other jurisdictions.²⁸ When the UK government eventually decided not to introduce changes to the current legislative framework, it was taken to task by a number of rights advocacy groups, including Stonewall, Amnesty International, Liberty, and Human Rights Watch.²⁹

The W judgment, handed down three years before the UK Trans Equality report was published, describes the GRA as a “compelling model” for gender recognition in Hong Kong.³⁰ The reference to the GRA in that case has become a kind of best case scenario for people seeking to change their legal gender in the city, and the criticisms of the GRA which took place in the United Kingdom from 2016 did not register in the Hong Kong courts. In that light, the courts’ insistence on surgery as a prerequisite for gender recognition in Navarro and Q and Tse seems doubly problematic: not only did the court fail to consider the aftermath of Bellinger in either of those cases, but it is blind to the fact that even the progressive model its own Court of Final Appeal alluded to—that of the GRA—is becoming outmoded.

What emerges from this line of cases—from W, to Navarro, to Q and Tse—is that the legal construction of trans identity in Hong Kong has become fixated on SRS. In W, genital surgery was taken as a given on the facts because W herself was a post-operative transsexual: her testes and penis had already been removed, and a vagina had been created. In Navarro and Q and Tse, the “genital surgery” became the sole point of focus, and entrenched a surgery-centric model of transness that is premised on the single issue of what genitals a person possesses. The CA’s judgment in Q and Tse, in particular, reveals the logic underpinning this construction of identity: it represents those who pursue a trans life without SRS as characterized by gender reversibility, instability, inconsistency, and even chaos. This judicial representation delegitimates the identities of these individuals by framing them either as incompletely trans, or as insufficiently committed to their gender. The end result is that the law discursively constructs a “proper” trans person, characterized by SRS, who can be a rights bearer and be given legal recognition, while casting individuals who pursue other forms of trans life beyond legal cognizance and outside the domain of rights protection.

3. The cinematic construction of trans identity

The identity construction I have discussed so far did not stay within the confines of the courtroom. As the outcome of the cases became discussed and debated in Hong Kong society, they resonated on television, in the newspapers, on the radio, and, most importantly for my purposes, in film. Film scholars have sought to understand why it is that popular cinematic representations might resemble legal representations. One reason is simply that both law and film form part of the cultural fabric of society, and are therefore likely to reflect each other’s structures and premises. Such is the argument of Carol Glover’s classic essay on law and film. Glover has observed that “the narrative substructure of so much of our cinema rhymes with the narrative substructure of our trial.”³¹ This means that a movie often “mimics the phases, the logic, and the narrative texture of the trial,” so that even though “there may be no trial in the movie,” a trial can nonetheless exist “underneath and behind it.”³² Richard Sherwin, one of the pioneers of law-and-film studies, argues in a similar vein that “the world of law, as everywhere else in contemporary society, marches in lockstep with shared visual scripts and digital programs” of popular culture.³³ Sherwin points out that courts are central institutions in civic society, and that the narratives that they generate—including narratives of identity—are registered and perpetuated through the mass media. Issues, such as how trans identity should be conceptualized, that are analyzed in the courtroom are also addressed by, for instance, the daily news, current event exposés, and documentaries. Over time, the mass media in turn generates a set of “images,” “metaphors,” “stock scripts,” and “popular stereotypes” which circulate back into the legal domain and “shape the very processes of thought and perception” of jurors, judges, and lawyers.³⁴ Law and popular culture therefore reinforce each other’s narratives, and also consolidate each other’s constructions of identity to provide “a source of collective understanding, social coherence, and stability.”³⁵

The interrelations between law and film which Glover and Sherwin identify can provide a point of entry into thinking about how the legal representation of trans identity resurfaces in film in Hong Kong. Tracey and A Woman Is a Woman foreground sex reassignment surgery as the hallmark of trans identity. The two films not only presume that trans people want SRS, but, in tandem with the courts, explicitly thematize SRS as the crucial step to self-realization, without which one’s development as a trans person is incomplete. The films therefore culturally reinforce and perpetuate the construction of trans identity in the law: they further the notion that there is a single, authentic trans identity that is premised on SRS, and in so doing participate in the de-legitimation of other models of transness. Through the consolidation and perpetuation of a hegemonic trans identity, the cinematic discourse renders culturally invisible what the legal discourse renders legally incognizable. In this section, I examine how the two films bolster the construction of “proper” trans identity in the legal imaginary.

3.1. Tracey

The film revolves around the life of Tai-hung, who appears as a married, cisgender man in his fifties. Unbeknownst to his friends and family, however, Tai-hung self-identifies as a woman. “He” is in fact a “she.” In an early part of the film, we see her putting on women’s underwear when alone at the office, and in another scene she spends the night there in lingerie. Tai-hung receives an unexpected phone call one day: Ching, her high school crush, is dead. Ching had moved away to London after graduation to become a war photographer, and he was killed while taking photographs in the field. It is only when Tai-hung meets Ching’s husband, a younger man named Bond, that she realizes that her high school love interest was gay. Through her conversations with Bond, Tai-hung finally comes to conceive of herself as trans. At the end of the film, she undergoes SRS and embraces her new identity as a transwoman. The film underscores surgery as a moment of transformation: according to the logic of the plot, it is only after the surgery that Tai-hung fully becomes a transwoman.

Tracey provides a delicate portrayal of a person who struggles to come to terms with her gender identity. By shooting the scenes in which Tai-hung wears lingerie in her office in the dark, the film underscores the secrecy and shame she has to endure. Moreover, the film is attuned to entanglements between homoeroticism and trans identification in the popular imagination, or to how the public may conflate same-sex object choice and gender identity in someone such as Tai-hang. As a film about the authenticity of trans experience, Tracey is at pains to remind its audience that the two identities are not the same. When Bond first meets Tai-hung, he assumes that Tai-hung is homosexual, and initially appears confused when Tai-hung tells him that he is wrong. Bond’s initial inability to understand Tai-hung’s assertion that he is a woman has a pedagogical function, underscoring for the audience that we, too, need to understand the distinction between Tai-hung’s identity and the one Bond projected onto her.

Tai-hung had resigned herself to hiding her identity for the rest of her life, and it is Bond, representing the more liberal voice of a younger generation, who puts the idea of surgery in her head: “You can have an operation!,” he says excitedly. Tai-hung dismisses the idea: “I’m already fifty-one, I’m too old for all this nonsense.” Yet Bond persists: “I’m serious—if you can live to eighty, you have another thirty years ahead of you.” Tracey valorizes surgery by presenting trans people as having only two options: they could either live a life of shame and secrecy, or be true to who they are by choosing surgery. Within the logic of the film, there is no room for trans identities that do not conform to the extremes of total concealment or sex reassignment surgery. Tracey therefore leaves no space for trans identities not premised on genital surgery, such as those of Q and Tse in real life, and presents SRS as the only route to the realization of an authentic trans self. In fact, Tse himself took issue with the film’s representation of identity. Speaking to reporters after the ruling to his case was handed down, he makes reference to Tracey as an example of the most commonly accepted view of trans identity in Hong Kong and laments the cascade of praise the film received from local critics.³⁶ Tse emphasizes that Tai-hung’s experience is not representative of his own experience, or that of the other trans people he knows.

The representation of SRS as a commitment to one’s authentic self is presented most starkly in the climax of the film, in which Tai-hung finally comes out to her wife and asks for a divorce. She has taken the first steps in living in her new gender, and comes home after a drunken night out in a wig, makeup, and female attire. At first, her wife refuses to listen to Tai-hung’s confession: “I don’t want to hear what you have to say!” But Tai-hung forces her to sit down, and articulates her demands: “I want a sex change. I want an operation. Let me do it, please, I beg you, give me a chance!” She insists that the operation is necessary because it would enable her to “fully become a woman” and “start a new life.” Tai-hung’s wife accuses Tai-hung of selfishness, and refuses a divorce. Out of desperation, Tai-hung attempts to self-castrate in the bathroom with a razor blade. The lengthy bathroom sequence, like the earlier scenes in which Tai-hung cross-dresses in secrecy, is shot in a darkened space. It begins with Tai-hung undressing in front of the mirror, then shows her taking out the blade from the razor with trembling hands, and ends with her collapsing in pain in the shower. These scenes together further the notion that SRS is the sine qua non of the trans experience by suggesting that a trans person must be so fully committed to their identity that they are ready to perform the operation on themselves if there is no family support for the medical option.

Tai-hung’s dangerous self-attempt at genital surgery finally causes her wife to relent. They divorce, and Tai-hung transitions. In one of the final moments of the film, the audience is brought inside a posthumous exhibition of Ching’s photographic works. The exhibition, entitled “People in My Life,” showcases photos of people who had emotionally touched the photographer while he was alive. The camera then follows the post-operative Tai-hung as she wanders past the exhibits. Dressed in an elegant Tyrian purple outfit and donning a matching wig, she reaches the centerpiece of the exhibition: it is a picture of her former self, lying in the bushes next to a waterfall she once visited with Ching. Ching must have been taken the picture while they were both in high school. The waterfall is a site which recurs in Tai-hung dreams; it seems that, unbeknownst to Tai-hung, this was a site that had also haunted Ching all these years. After contemplating the image of the person she once was, Tai-hung raises her glass and says a farewell to her former, male, self. In the last scene of the film, Tai-hung also comes out to her mother, who, much to Tai-hung’s relief, tells her child that she loves her no matter what her gender is. Tracey closes with the message that only those trans people who persist till the end with their surgery will find closure to their troubled, gender dysphoric lives, and in doing so affirms the model of gender identity furthered by the courts.

3.2. A Woman Is a Woman

The film centers on the lives of two trans individuals: Chiu Ling-fung and Sung Chi-yu. Ling-fung is a high school student; he still conceives of himself as a “he,” though he is starting to come to terms with his gender identity amidst a growing, if inchoate, sense that a male subjectivity does not quite adhere to his sense of self. Since Ling-fung does not explicitly self-identify as a woman for much of the film, I will use the pronoun “he” when referring to him. Chi-yu is a post-operative transwoman who lives with her husband and his daughter from a previous marriage. The husband does not realize that his wife is trans until he accidentally discovers an old photograph of her as a boy. Chi-yu’s teenage daughter, who goes to the same school as Ling-fung and is romantically interested in him, provides a point of intersection between the two strands of the film.

A Woman Is a Woman presents the experience of trans selfhood as living with a split identity: Chi-yu describes the experience as a disjuncture between her inner self and her physical body, and Ling-fung describes it as an incongruence between himself and the world around him. The theme of splitting is foregrounded by the narrative structure: the film is split between the two parallel narratives about Ling-fung and Chi-yu; it moves back and forth between them and consciously juxtaposes key scenes so that they echo against one another. For instance, at the beginning of the film we see Chi-yu reflecting on her life as she slowly walks along Hong Kong’s Central Business District; the camera follows her from behind, so that we only see the back of her head. This sequence is followed by Ling-fung reflecting on his life as he walks into the male bathroom in his school; in the bathroom sequence the camera is also positioned from behind the character, so that we only see the back of his head. The two plotlines move alongside one another, yet never fully come together. By juxtaposing the interior monologues of the two characters, and by placing them in the same position vis-à-vis the camera, the film stylistically represents transness as a split between different parts that co-exist but that do not, and cannot, cohere.

This conception of identity is further accentuated by a ghostly figure in the film: Ling-fung’s inner self is represented as a spectral female presence known as Rose. In an early scene, in which Ling-fung returns home on a tram, he sees Rose sitting across from him. This split between Ling-fung and Rose, between his inner self and his corporeal self, gives visual form to the sense of incongruence between the psychological and physical manifestations of his gender. Later on, as Ling-fung contemplates abandoning the idea of transitioning in face of the strongly adverse reaction of his parents, his struggles are represented as a determined attempt by him to strangle Rose, even as tears run down his face at the very thought of destroying her.

A Woman Is a Woman also presents SRS as the defining feature of an authentic trans identity: the operation is represented as a central aspect of both Chi-yu and Ling-fung’s sense of who they are. The surgery-centric representation of trans identity is even more problematic in this film than in Tracey because it self-consciously markets itself as giving voice to a plurality of transwomen. The film ends with a quotation from writer and activist Janet Mock reiterating that transwomen are amongst the “many kinds of women” that exist in society, but instead of giving us a portrait of the many different modalities of trans existence, it restricts the representation of trans identity to the surgery-centric model. The syntax of the caption at the beginning of the film also inadvertently reflects this collapse of diversity into singularity. The caption states that A Woman Is a Woman tells “an untold story of transwomen”: while purporting to represent the experiences of transwomen—in the plural—it nonetheless gives only one version of events, through a single story premised on a singular conception of trans identity defined by surgery.

The thematization of SRS can further be seen in a heated argument between Chi-yu and her husband. The husband is furious when he finds out about Chi-yu’s past, and accuses her of “deliberate deception.” His views are rooted in the transphobic perception of Chi-yu’s identity as mere disguise, and for him the surgery is little more than part of a masquerade. In her plea to him, Chi-yu points out that her surgery is firm evidence that, contra his beliefs, she is not a man. Moreover, in the film the post-operative body is portrayed as a crucial part of what enables trans individuals to come to terms, however uneasily, with themselves: reflecting on her transition, Chi-yu observes that this new identity is a site where she has learned to reconcile her past with her present, where “the me from the past” can still be “a part of my current life.”

The crystallization of Ling-fung’s own understanding of self follows a practical joke at this high school, where he and his friends swap school uniform with their female classmates to scandalize the teachers on the school’s “Dress Down Day.” Ling-fung feels at home in the uniform, and it is at this point that his sense of trans selfhood fully dawns on him. His realization is expressed through another appearance by Rose, Ling-fung’s spectral alter ego. Ling-fung is taking a bath; when he looks up he sees Rose gazing at him from the edge of the bathtub. She picks up a razor blade, and slowly places it in his hand, and then guides his hand towards his genitals. He holds the blade uncertainly, and then looks down at his genitals. The sequence then ends abruptly, and it is unclear whether what transpired was a dream, a part of his imagination, or a part of reality. The point here is that by aligning the crystallization of Ling-fung’s gender identity with self-castration, the film once again represents SRS as a definitive part of trans selfhood: being trans is inextricably intertwined with genital surgery. This is reiterated in Ling-fung’s confrontation with his parents, during which he tells them plainly that “this is my body. I will have the surgery.” The focal point is once again the surgery.

A Woman Is a Woman ends on a similarly insistent note about realizing one’s authentic self as Tracey, though in a somewhat less optimistic register. It ends, as it begins, with two interior monologues: one by Ling-fung, the other by Chi-yu. Once again, two narrative strands coexist, but elide one another. The two characters are brought together at Ling-fung’s high school through a dance performance: Ling-fung is there to take part in the performance, and Chi-yu is there because her daughter is in it. They are in the same space but walk past one another. Ling-fung ponders over his future as he dances on stage: “I don’t know what will happen, and I don’t know what else life will bring. All I know is, I must keep going. […] All I know is, I must carry on.” Insistent as he is on transitioning, he is uncertain about the level of acceptance he will find. As Ling-fung thinks about his future, Chi-yu thinks about her past: “The world remains cruel. Yet cruel as it is, I would have made the same choice if I had the chance to choose again.” Ultimately, the film gives a sensitive, sympathetic portrayal of trans existence, but only in relation to those who adhere to the identity model it prescribes.

4. Independent queer film and the question of gender identity

I have so far argued that law and popular films aimed at a general audience can reaffirm and reinforce each other’s representations of trans identity. These films culturally entrench the law’s surgery-centric construction of identity as hegemonic, and in doing so participate in the erasure of ways of trans living that do not conform to that model. How, then, might it be possible to break out of the representations in these fields? In this section, I propose that independent queer filmmaking can help us reimagine trans identity.

Unlike mainstream commercial cinema, independent queer films are less concerned with being financially successful than with socially empowering marginalized or underprivileged communities. Especially critical to social empowerment is the short film. These are usually produced on a shoestring budget, and are aimed at the queer community rather than at the general audience. They are also relatively easy to produce: as film scholar Stuart Richards notes, increasing access to technology underpins the formation of a “digital democracy” whereby newcomers or even outsiders to the film industry who wish to tell their stories and disseminate unconventional ideas about identity can produce work “directly challenging the inherent heteronormative inequalities embedded in the means for feature film production.”³⁷ Unshackled from the demands of funding bodies and sponsors, short-film directors have a much freer hand at putting forward new ideas about gender and sexuality. The short film can be a platform for telling stories about the lives of sexual minorities considered too marginal, odd, or distasteful for a general audience.

Short films are regularly showcased at queer film festivals around the world. Of course, film festivals themselves are not entirely unconcerned with sales and sponsorship, but such concerns do not necessarily undermine their political mission of empowering minorities.³⁸ Richards has argued that queer film festivals can be thought of as operating in a way akin to social enterprises: while they program enough popular films pandering to existing societal conceptions of gender and sexuality in order to make a profit, they will also use the revenue from these more popular films to provide a space for less lucrative short films and other alternative film forms. The latter films—less commercially successful, but more politically engaged—can in fact be thought of as “the making of the queer film festival’s moral and social legitimacy.”³⁹ Over time, the ideas encapsulated in the films are disseminated from the queer viewers that constituted their original audience to their friends, colleagues, and families, and more gradually into wider society. Skadi Loist goes further than Richards when she observes that queer film festivals can often be thought of as “activist festivals” which seek to throw into question existing norms about sex, gender, and sexuality.⁴⁰

In the remainder of this section, I examine two recent short films screened at the queer film festival in Hong Kong to demonstrate how they can enable us to move beyond the representations of identity in the law courts and in popular culture. One of the most striking aspects of these short films is that they foreground a term which is absent from the court cases and the more mainstream films discussed so far: non-binary. The question of what non-binary identities mean, and how they should be articulated, is one which is becoming increasing urgent around the world, and East Asia is no exception: as one journalist observes, there now exist proposals for a new character in the Chinese language for non-binary Chinese people.⁴¹ Yet perhaps because of their presumption that trans identity is necessarily premised on a complete change from one gender to another made possible by SRS, the question of the relationship between “non-binary” and “trans,” and whether or how a trans person can be non-binary, is not one which has been addressed or even conceptualized by the legal cases or the feature films. By contrast, the short films address this question directly, and as such constitute cultural products which interrogate the construction of gender in Hong Kong law and popular culture, and expand the city’s imaginative capacity for understanding what transness can be.

Sophia Shek and Hugo Kenzo’s Vincy is a seven-minute interview with a trans musician named Vincy Chan. The directors’ questions are edited out, so only Chan speaks. In contrast to the full-length feature films, where the characters speak their lines from a script, the interview format enables Chan, who goes by the pronoun “they,” to address the audience directly and articulate their experience in the own voice. The film can be regarded as a moment of speaking back to the representations of trans identity in law and mainstream cinema.

In the film, Chan evinces a self-awareness about their narrative as a reaction to existing discourses about gender identity. They begin with a confident assertion of who they are: “I am a non-binary trans, singer-songwriter, illustrator.” The foregrounding of the term “non-binary” suggests that the short film consciously interrogates prevailing gender constructions: it not only challenges the use of surgery as a marker of trans selfhood, but also questions the need to make binary gender structures a basis for articulating an identity. As Chan observes in a separate interview: “A lot of people, when they think about gender, they think about male and female. Being trans simply means, usually by definition, that you don’t identify with the gender you were assigned with,” without any stipulation of identifying with the opposite gender.⁴² Through the experience of an individual whose gender identity does not find representation in more mainstream discursive domains, Vincy shines a light not only on those who do not subscribe to the surgery-centric model of law, but also on those who do not adhere to the gender narratives even of the litigants in the Q and Tse case who, despite arguing against the surgery requirement, still conceive of gender in a binary frame.

Describing their experience of growing up, Chan remembers experiencing gender as “this weird not,” or a “chronic disturbance” which arose from, and in turn troubled, the paradigms of binarism. By framing gender in these negative terms—as a “not” and a “disturbance”—the film offers a representation of gender that is less an identity and more an anti-identity, or not so much something that affirms structures and more something that unsettles them. In contrast to W, Navarro, Q and Tse, Tracey, and A Woman Is a Woman, Vincy offers a queer conception of identity whereby being trans consists of not conforming to any of what Chan calls “approved gender representations.”

Candle Leung’s Forever Queer (2022) is a thirty-six-minute documentary about queer life in Hong Kong. It opens with a segment on Law Siu-fung, a non-binary genderqueer bodybuilder. As with Vincy, Siu-fung begins with a confident assertion of identity: “I am Siu-fung. I identify as a gender-fluid person.. . . I am assigned female at birth, but I am socially male. . . I see myself not completely as a man, and not completely as a woman.” As they speak, Siu-fung looks directly, and defiantly, at the camera, a gesture indicating that their performance of gender on the screen is intended as a way of forthrightly challenging the narratives perpetuated by law and popular culture.

Siu-fung’s self-description is reinforced by the close-ups of their body in the film. The most striking visual dimension of Siu-fung’s self-presentation is their muscular physique: in the segment, they flex their muscles and are not shy about showing off their body. The camera alternates between two different gender performances. In the first set of images, Siu-fung is presented as more masculine: they do not wear any make up, tie back their hair, and wear nothing but gym shorts or Lycra pants. In another set of images, they are presented in a more conventionally feminine mode: they wear lipstick and eyeshadow, as well as a bra and high heels. They also let their hair loose. Yet the movement between the two sets of images does not simply suggest that Siu-fung switches between the two poles of being male and female, for it is difficult to unambiguously identify them as belonging to either gender category in any of these images. Siu-fung’s identity can be said to be one in which the opposition between “male” and “female” starts to break down. Speaking of their lifelong interest in bodybuilding, Siu-fung seems to be engaging in a direct critique of the law’s fixation on sex reassignment surgery as the determinant of identity: for Siu-fung, the bodybuilding, which gave them the body they now have, constitutes “an example [of] how a biologically female body could actually change, and not necessarily with surgeries.”

In the final moments of the segment, Siu-fung proclaims that they are attracted to human beings, “regardless of gender or gender identity.” When it comes to meaningfully engaging with a person, what matters is their intrinsic qualities, and not their chromosomal, anatomical, or psychological profile. In this seemingly simple statement by its subject, Leung’s short film points us towards a utopian conception of humanity, far from the insistence on gender distinctions which currently structure both law and popular culture in Hong Kong.

5. Conclusion

In this article, I have examined the relationship between law and film to argue for the need to be attuned to the ways in which legal representations of trans identity may impact upon non-legal domains. By reading the key Hong Kong legal cases on trans rights together with the city’s major films about trans life from the same period, I have demonstrated that the trans identities constructed in the cases became registered in cultural discourses beyond them, and that law and popular culture can operate in tandem with one another to shape a society’s understanding of transness. Through a textual analysis of two recent short films screened at the Hong Kong Lesbian and Gay Film Festival, I have also explored the potential for subgenres such as independent queer film to encourage a reconsideration of prevailing or dominant representations of gender identity. As the struggle for trans equality continues, it is imperative for us to analyze not only the ways in which identities are constructed in law, but the discursive journeys which those identities undertake as they travel from the courtroom to other domains.

I would like to thank Yoyo Pun for her invaluable research assistance. I acknowledge the support from the General Research Fund of the Hong Kong Research Grants Council (Grant Number 17610320).

In this article, I discuss, inter alia, the Court of Appeal’s decision in Q & Tse Henry Edward v. Comm’r of Registration [2022] H.K.C.A. 172. The Court of Final Appeal handed down its judgment on the case after this article went to press. I am therefore unable to engage with its reasoning here, but please see Q & Tse Henry Edward v. Comm’r of Registration [2023] HKCFA 4. The CFA decision does not detract from the analysis of the interactions between legal and cinematic representations of trans identity that took place prior to it, which I present below.

Footnotes

1

For a selection of works in the vibrant domain of “law and film” scholarship, see The Scene of the Mass Crime: History, Film, and International Tribunals (Christian Delage & Peter Goodrich eds., 2013); Steve Greenfield, Guy Osborn, & Peter Robson, Film and the Law, (2d ed. 2020); Paul Kahn, Finding Ourselves at the Movies: Philosophy for a New Generation (2013); Mónica López Lerma, Sensing Justice through Contemporary Spanish Cinema: Aesthetics, Politics, Law (2021); William P. MacNeil, Lex Populi: The Jurisprudence of Popular Culture (2007); Richard K. Sherwin, Visualizing Law in the Age of the Digital Baroque (2011); Sharon Sliwinski, Human Rights in Camera (2011); Marco Wan, Film and Constitutional Controversy: Visualizing Hong Kong Identity in the Age of “One Country, Two Systems” (2021).

2

W. v. Registrar of Marriages [2013] H.K.C.F.A. 39.

3

Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China art. 37 [hereinafter Basic Law].

4

Q & Tse Henry Edward v. Comm’r of Registration [2022] H.K.C.A. 172.

5

See, e.g., Adriana Rosati, Film Review: Tracey (2018) by Jun Li, Asian Movie Pulse (Mar. 11, 2019), https://asianmoviepulse.com/2019/03/film-review-tracey-2018-by-jun-li/; Elizabeth Kerr, Tracey (Chiu-See): Film Review, Hollywood Reporter (Nov. 9, 2018), www.hollywoodreporter.com/movies/movie-reviews/tracey-chui-see-film-review-1159906/; Edmund Lee, Philip Keung Mesmerising in Hong Kong Transgender Drama, S. China Morning Post (Nov. 21, 2018), www.scmp.com/culture/film-tv/article/2174380/tracey-film-review-philip-keung-mesmerising-hong-kong-transgender.

6

W [2013] H.K.C.F.A. ¶¶ 84–9.

7

Id. ¶ 115.

8

Id. ¶ 13.

9

Id. ¶ 8.

10

Id. ¶ 138.

11

Navarro Luigi Recasa v. Commissioner of Correctional Services [2018] 4 H.K.L.R.D. 38.

12

Navarro, ¶ 6 (emphasis added).

13

Id. ¶ 4 (emphasis added).

14

Q & Tse Henry Edward v. Comm’r of Registration [2022] H.K.C.A. 172, ¶¶ 46, 69.

15

Id. ¶ 107.

16

Id. ¶ 123.

17

Id. ¶ 52.

18

Id. ¶ 58.

19

Id. ¶ 70.

20

Q, R, & Tse Henry Edward v. Commissioner of Registration [2019] C.F.I. 295, ¶ 58.

21

Id. ¶ 57.

22

On trans identity and parenthood, see Anniken Sørlie, Trans Reproduction: Continuity, Cis-normativity, and Trans Inequality in Law, 21 Int’l J. Const. L. 625 (2023); Daniela Alaattinoğlu & Alice Margaria, Trans Parents and the Gendered Law: Critical Reflections on the Swedish Regulation, 21 Int’l J. Const. L. 603 (2023).

23

Q & Tse Henry Edward v. Comm’r of Registration [2022] H.K.C.A. 172, ¶ 16.

24

Q, R, and Tse [2019] CFI ¶ 27, citing Bellinger v. Bellinger [2003] UKHL 21, ¶ 42.

25

Human Rights Act 1998, c. 42, § 4 (U.K.); Matrimonial Causes Act 1973, c. 18 (U.K.); European Convention on Human Rights, arts. 8, 12, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter ECHR].

26

Gender Recognition Act 2004, c. 2 and 3 (U.K.).

27

Id. § 2.

28

House of Commons, Women & Equalities Comm., Transgender Equality, 2015–16, HC 390, para. 30 (U.K.).

29

Changes to Gender Recognition Laws Ruled Out, BBC News (Sept. 22, 2020), https://www.bbc.com/news/uk-politics-54246686.

30

W. v. Registrar of Marriages [2013] H.K.C.F.A. 39, ¶ 138.

31

Carol J. Glover, Law and the Order of Popular Culture, inTrial Films on Trial: Law, Justice, and Popular Culture 17, 19 (Austin Sarat, Jessica Silbey, & Martha Merrill Umphrey eds., 2019).

32

Id. at 26.

33

Richard K. Sherwin, Introduction: Law, Culture, and Visual Studies, inLaw, Culture and Visual Studies at xxxiii, xxxiv (Anne Wagner & Richard K. Sherwin eds., 2014).

34

Richard K. Sherwin, When Law Goes Pop: The Vanishing Line Between Law And Popular Culture 21 (2000). For other works on law and popular culture, see Lawrence M. Friedman, Law, Lawyers, and Popular Culture, 98 Yale L.J. 1579 (1989); Cultural Legal Studies: Law’s Popular Cultures and the Metamorphosis of Law (Cassandra Sharp & Marett Leiboff eds., 2016); West of Everything: Law and New Media (Christian Delage, Peter Goodrich, & Marco Wan eds., 2019).

35

Sherwin, supra note 34, at 34.

36

Chris Lau, Henry Tse, Who Lodged an Unsuccessful Judicial Review, Tells How Living Life as a Transgender Person Can Be Difficult in Hong Kong, S. China Morning Post (Feb. 2, 2019), www.scmp.com/news/hong-kong/article/2184758/henry-tse-who-lodged-unsuccessful-judicial-review-tells-how-living.

37

Stuart J. Richards, The Queer Film Festival: Popcorn And Politics 183–4 (2018).

38

Id. at 11.

39

Id. at 183.

40

Skadi Loist, Crossover Dreams: Global Circulation of Queer Film on the Film Festival Circuits, 61 Diogenes 57 (58).

41

Wee Kek Koon, How Non-binary Chinese People Seeking a Gender-Neutral Third-Person Pronoun for Themselves Are Coming Up with Solutions, Including a New Chinese Character, S. China Morning Post (Feb. 24, 2022), https://www.scmp.com/magazines/post-magazine/short-reads/article/3168100/how-non-binary-chinese-people-seeking-gender.

42

Jennifer Creery, “It Depends on Allies”: Non-binary Transgender Activist Vincy Chan on Pushing Hong Kong’s LGBT+ Narrative Forward, H.K. Free Press (Nov. 11, 2018), https://hongkongfp.com/2018/11/11/depends-allies-non-binary-transgender-activist-vincy-chan-pushing-hong-kongs-lgbt-narrative-forward/.