TRANSGENDER HEALTH CARE IN CHINA

Final Report & Recommendations

Prepared for:
Psychological Team for Trans People in China

March 2019

Written by:

Julia Dahlkemper, Benjamin Diaz, Feyi Lawanson

Jeffrey Messina, Ebony Morris

Supervised by:

Brian Citro, Elise Rose Meyer

 TABLE OF CONTENTS
Executive Summary ...................................................................................................................... 3

Recommendations Summary ....................................................................................................... 3

Introduction ................................................................................................................................... 5

Background and History .............................................................................................................. 5

A. Definitions ................................................................................................................................... 5

B. History and Overview of Transgender Rights and Stigma in China ...................................... 5

i. Origins of Discrimination................................................................................................................. 6

ii. Current Challenges .......................................................................................................................... 7

Current Laws, Policies and National Health Plans in China..................................................... 9

A. Access to Gender Affirming Health Services ........................................................................... 9

iii. Gender Affirming Surgery ................................................................................................................ 9

iv. Hormone Therapy ......................................................................................................................... 11

B. Legal Gender Recognition: Changing Gender Markers and Names .................................... 11

C. Protection from Discrimination .............................................................................................. 12

i. Employment ................................................................................................................................. 12

ii. Criminal....................................................................................................................................... 13

iii. Marriage ...................................................................................................................................... 13

The Realities of Life as a Transgender Individual in the People’s Republic of China ........... 14

A. Healthcare Education ............................................................................................................... 14

i. The Pathologization of Transgender People ...................................................................................... 15

ii. Lack of Trust in Doctors ............................................................................................................... 16

iii. Individual Initiatives...................................................................................................................... 16

B. Workplace Turmoil ................................................................................................................... 18

i. Institutional Discrimination ........................................................................................................... 18

International and Comparative Perspectives on the Appropriate Standard of Care ............... 19

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 A. Overview of the WPATH-SOCs and Other Alternative Standards of Care ....................... 19

B. Assessment ................................................................................................................................ 21

i. Assessment and Treatment of Adults .............................................................................................. 21

ii. Assessment and Treatment of Children ........................................................................................... 26

Recommendations........................................................................................................................28

1 - Modify legal definitions of “gender” in antidiscrimination statutes to include protections for

transgender people. ................................................................................................................................ 28

2 - Specialized inquiries in epidemiological research in order to raise awareness and bring attention
to the unique needs and challenges of transgender people. ................................................................ 28

3 - Remove the gender affirming surgery requirement for modifying government identification. . 28

4 - Promote access to safe, reliable and affordable hormone therapy in China for transgender
persons. ................................................................................................................................................... 29

5 - Enact stronger legal protections for violations of health privacy laws. ........................................ 29

6 - Reduce cost or ensure insurance coverage for transition related services. .................................. 29

7 - Reduce the role of mental health professionals as gatekeepers by adopting aspects of the
Informed Consent Model SOCs encouraging patient autonomy. ...................................................... 30

8 - Modify the policy on criminal records related to gender affirming surgery. ................................ 30

9 - Enact widespread grassroots education and activism in order to promote education on gender
identity and acceptance of transgender people within the Chinese community. .............................. 31

10 - Create counseling services specifically designed for minors grappling with gender identity
issues. ....................................................................................................................................................... 31

Bibliography .................................................................................................................................32

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EXECUTIVE SUMMARY
This report investigates transgender people’s access to healthcare in China. Our partner is the
Psychological Team for Trans People in China, a non-profit established in 2018 which provides direct
mental health services to transgender people, including counseling and operating a hotline. This report
is aimed at supporting the organization in its advocacy effort towards shedding light on the poor
health outcomes of transgender people in China.

Stigmatization of and discrimination against transgender people in China is a human rights concern.
Stigma and discrimination negatively impacts the lives of transgender people in China in a number of
ways, including increasing barriers to healthcare and psychological support, increasing workplace
inequality and preventing marriage equality. According to the UNDP in a report issued in 2017 on
China’s Lesbian, Gay, Bisexual and Transgender (LGBT) community, “trans people face the highest
levels of discrimination, especially within the family, schools and workplaces.”1

The constitution of China enshrines the principle of equality before the law, personal dignity and
creates an obligation on the government of China to preserve the human rights of its citizens. Despite
these constitutional guarantees, there is no express law protecting transgender people in China from
discrimination. The purpose of this report is to assess the discrimination against transgender people
in China which can be linked to the health challenges that they face and make recommendations for
addressing these problems. The recommendations are made in order to support our partner in its
advocacy goals and objectives towards sensitizing Chinese society about its transgender population.

RECOMMENDATIONS SUMMARY
In order to address the health care challenges faced by the transgender community in China, we have
made the following recommendations for where to place advocacy efforts:2

1. Modify legal definitions of “gender” in antidiscrimination statutes to include protections for

transgender people.

1 Agence France-Presse, China’s Transgender People ‘step forward’ from the shadows, SOUTH CHINA MORNING POST (Jun. 14,
2018, 10:27 PM), https://www.scmp.com/news/china/society/article/2150773/chinas-transgender-people-step-
forward-shadows.
2 These recommendations are discussed in more detail in Part VI of this report.

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2. Specialized inquiries in epidemiological research in order to raise awareness and bring attention
to the unique needs and challenges of transgender people.
3. Remove the gender affirming surgery requirement for modifying government identification
documents.
4. Promote access to safe, reliable and affordable hormone therapy in China for transgender
persons.
5. Enact stronger legal protections for violations of health privacy laws.
6. Reduce cost or provide insurance coverage for transition related services.
7. Reduce the role of mental health professionals as gatekeepers by adopting aspects of the
Informed Consent Model Standard of Care encouraging patient autonomy.
8. Create counseling services specifically designed for transgender youth.
9. Modify the policy on criminal records related to gender affirming surgery.
10. Encourage widespread grassroots education and activism in order to promote education on
gender identity and acceptance of transgender people within the Chinese community.

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INTRODUCTION
This report outlines some of the challenges faced by transgender people when trying to access
appropriate health care in China, with a focus on hormone therapy, surgery and psychological support.
It will describe the origin and history of stigma of and discrimination against transgender people in
China; the laws, policies and national health plans relevant to transgender people in China; and the
barriers and challenges transgender people face when trying to access medical care and psychological
support. This report will also discuss international standards that promote the right to health of
transgender people as well as mechanisms adopted by other jurisdictions (United States, Canada,
Thailand, Europe) in meeting the health needs of the transgender community. Lastly, this report will
provide recommendations for where to focus advocacy efforts in order to alleviate the health
challenges currently facing the transgender community in China.

BACKGROUND AND HISTORY

A. Definitions
In this report, we use the term transgender as “[a]n umbrella term for people whose gender identity
and/or expression is different from cultural expectations based on the sex they were assigned at
birth.”3 Importantly, “being transgender does not imply any specific sexual orientation. Therefore,
transgender people may identify as straight, gay, lesbian, bisexual etc.”4

B. History and Overview of Transgender Rights and Stigma in China

The legal status of the transgender community in China is uncertain. 5 Presently, the Chinese
government has not enacted laws that expressly protect the rights of transgender people against
discrimination.6 And no laws exist that protect transgender individuals’ right to access quality
healthcare.7

3 Human Rights Campaign, Glossary Terms, https://www.hrc.org/resources/glossary-of-terms (last visited Feb. 10, 2019).
4 Supra note 3.
5 Arber Mavraj, The LGBT Movement in China: public Perception, Stigma, and the Human Rights Debate, 8, INQUIRIES JOURNAL,

1/21 (2016).
6 Gabriel Dominguez, Juan Ju, Marginalized and stigmatized – China’s transgender sex workers, (Jan. 1, 2015),

https://www.dw.com/en/marginalized-and-stigmatized-chinas-transgender-sex-workers/a-18214489.
7 Id.

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There are no official statistics reflecting the size of the transgender community in China.8 However,
studies suggest “0.1 percent to 1.1 percent” of the Chinese population are transgender. 9

i. Origins of Discrimination

Because sexuality and gender identity are often conflated, stigma of homosexuality can attach to
transgender people who may or may not be gay. Therefore, the stigmatization and discrimination faced
by transgender people in China is closely linked to intolerance for homosexuality in China. Such
intolerance grew by reason of western influence, the end of dynastic rule in China,10 and, some have
argued, the influence of Confucian philosophy within Chinese society.11

The introduction of western religious materials in China and the study of western ideas, which
condemned and criminalized homosexuality as a sin and a deviant behavior deserving punishment,
contributed to the intolerance of homosexuality by Chinese society.12 These views compounded after
the establishment of the “Chinese Communist Party and creation of the People’s Republic of China.”13

Before this time, and as early as 650 B.C., male sexual diversity was accepted by Chinese royal courts
and had been developed within its literature.14 In fact, non-heterosexual identities are said to “have
had long-standing roots in Chinese History” for thousands of years.15 There was tolerance for
homosexuals as they were depicted in Chinese poetry, and they faced less persecution before the
introduction of western ideas of morality (which was Christian-based), into Chinese society.16

An important aspect of Chinese culture is the continuity of the family line. 17 This idea emanated from
the influence of Confucian philosophy in China. 18 Confucianism largely influenced the Chinese society
by placing “special importance on having children, especially male offspring, as a filial obligation in

8 Id.
9 Id.
10 Agi Veres, A safe and Inclusive Society for Transgender People in China, UNITED NATIONS DEVELOPMENT PROGRAM

(UNDP), (Nov. 13, 2018), http://www.cn.undp.org/content/china/en/home/ourperspective/ourperspectivearticles/

2018/a-safe-and-inclusive-society-for-transgender-people-in-china.html.
11 Hunter Gray, Negotiating Invisibility: Addressing LGBT Prejudice in China, Hon Kong and Thailand, (2014),

https://scholarworks.umass.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1029&
context=cie_capstones.
12 Supra note 5.
13 Id.
14 Id.
15 Supra note 11.
16 Id.
17 Supra note 5.
18 Supra note 11.

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order that children continue the paternal family.”19 This idea to continue the family line has
contributed to the stigma of and discrimination against LGBT people who are perceived as distorting
this Chinese traditional value.20 It is also said to contribute to the guilt LGBT people feel regarding
“coming out” about their sexual orientation and gender identity. 21 The pressure on the younger
generation to have a family in Chinese culture rests on the need for them to care for their elders and
continue the family lineage by bearing children. 22

ii. Current Challenges

The transgender population in China are discriminated against and stigmatized both within their
families and in society at large.23 As a result, China’s transgender community faces a number of
challenges.

Transgender people do not have equal access to social services including health care due to the
misconceptions around their sexual orientation and identity. 24 According to the UNDP, “a recent
survey of transgender people in China reflects that among 62 percent of respondents demanding
access to hormone therapy, only 6 percent were able to access satisfactory care.”25 There is also a
shortage of medical institutions available to transgender people in China for accessing counselling,
transition support, hormone treatment, etc. Institutions providing specialized services regarding
“hormone use and gender change” are fewer than ten, with the public medical institutions lacking
expertise and competency in this area.26

Violence is another problem faced by transgender people in China. Recently, there has been media
attention concerning the huge number of rape cases within the country. 27 However, violence against
transgender women remain largely overlooked or taken seriously.28 The authorities, particularly the
police, have been accused of mocking transgender people who are survivors of sexual violence. They

19 Id.
20 Judith A. Berling, Confucianism, ASIA SOCIETY, https://asiasociety.org/education/confucianism.
21 Supra note 5.
22 Id.
23 Supra note 5.
24 Id.
25 Supra note 10.
26 Supra note 7.
27 Puja Changoiwala, India: No Country for Transgender Women, SOUTH CHINA MORNING POST, (Jun. 8, 2018, 2:47 PM),

https://www.scmp.com/week-asia/society/article/2154077/india-no-country-transgender-women.
28 Id.

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have been accused of not viewing transgender women as “women” with the anatomy for a sexual
violence allegation to hold any weight. 29

Closely related to this are reports that a large number of transgender people are forced to become sex
workers due to “social ostracism as well as legal and economic marginalization,” thereby promoting
disenfranchisement and discrimination against them in China. 30 Added to this issue is the fact that
being a sex worker in China is illegal. Due to this, transgender individuals who follow this path tend
to have more interaction with local authorities and are prone to face abuse from the Chinese police
who have a habit of mocking them as well as verbally and physically abusing them.31

In addition, the transgender community in China is at high risk of HIV infection. 32 Current research
indicates that transgender women, especially those who have joined the sex workforce are mostly
affected by HIV.33 According to DW, “Globally, transgender women are 49 times more likely to
acquire HIV than the general public. The HIV infection rate among transgender female sex workers
is 27.3 percent, which is nine times higher than female sex workers, and three times higher than male
sex workers.”34

Regarding workplace and employment equality, a major issue faced by transgender people is legal
identity.35 According to Chinese law “only those who have undergone sex reassignment surgery (SRS),
can alter the gender on their identity cards.”36 According to Chinese law “post-operative trans-sexuals
are entitled to update their gender identity on household registration and identity cards; however,
trans-sexuals are unable to update their gender identity on academic records or other crucial
documents.”37 According to UNDP, due to the difficulty in changing their information on official
documents and identification, transgender people face the risk of being unemployed as employers
refuse to recognize their qualifications from educational institutions.38 For these reasons, transgender

29 Id.
30 Supra note 7.
31 Id., Supra note 27.
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 China LBT Rights Initiative, Discrimination Faced by Lesbian, Bisexual and Transgender Women in China,

https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CHN/INT_CEDAW_NGO_CHN_16577_O
.pdf.
38 Supra note 10.

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people have identity cards that fail to reflect their desired gender identity. 39 This problem also leads to
them having to reveal their status in their work places and when making use of public services.40

Fortunately, in early 2018, a Guiyang appeals court ruled on the first lawsuit filed in China against
employment discrimination of transgender individuals.41 According to UNDP, the lower court’s
decisions was upheld by the appeals court which stated that, “workers should not experience
differential treatment based on their gender identity and expression.”42 Although the appellate court’s
ruling may be regarded as a major step towards achieving workplace equality for transgender people
in China, the discrimination they face persists.43

CURRENT LAWS, POLICIES AND NATIONAL HEALTH PLANS IN CHINA

The Constitution of China states that:

[a]ll persons holding the nationality of the People’s Republic of China are citizens of the People’s Republic of
China. All citizens of the People’s Republic of China are equal before the law. The State respects and preserves
human rights. Every citizen is entitled to the rights and at the same time must perform the duties prescribed by
the Constitution and other laws.44

Despite this broad protection from the highest legal authority in the country, laws and administrative
regulations promulgated by the National People’s Congress and State Council respectively, abridge
transgender people’s rights in three main areas: (1) access to gender affirming health services, (2) legal
recognition of gender identity and (3) protection from discrimination.

A. Access to Gender Affirming Health Services

iii. Gender Affirming Surgery

The National Health Commission is the executive agency under the State Council responsible for
health-related policies and enforcement. The Sex Reassignment Procedural Management Standards

39 Supra note 7.
40 Supra note 10.
41 Id.
42 Id.
43 Id.
44 CONSTITUTION OF THE PEOPLE’S REPUBLIC OF CHINA, Mar. 4, 2004, ch. 2. art. 33.

9
(“Sex Reassignment Standards”) issued by the Commission in 2017, require transgender individuals
to meet the following requirements to be approved for gender affirming surgery: the desire to change
sex has existed, and been persistent, for over five years with no history of hesitation in pursuing this
desire; psychological/psychiatric therapy has been provided for over a year prior to surgery, with no
effect; the patient is unmarried; the patient is over 20 years old and has complete civil capacity; the
patient has no other contraindications to surgery.45

Notably, the requirement that the person is at least 20 years old conflicts with the definition of the
“age of persons with full capacity for civil conduct” in the General Principles, and the General
Provisions of the Civil Law of the People's Republic of China.46

In addition, under the Sex Reassignment Standards, patients are required to submit the following
materials before they are eligible for sex affirming surgery: verification issued by the local Public
Security Bureau that the patient has no prior criminal record; verification issued by a psychologist or
psychiatrist of a diagnosis of transsexualism; verified written request from the surgical patient
requesting the surgery; verification that the surgical patient has already notified family of the intention
to undergo sex reassignment surgery.47 Although technically only parental notification, not approval,
is required “[i]n practice, such requirement is often misinterpreted by surgeons who usually require
the...applicants to provide the consent form from their parents or guardians.”48

A recent survey of transgender people in China found that 89.1% of transgender people who wanted
sex affirming surgery reported that they were unable to get it. 49 Two commonly cited reasons were
parents disagreeing with the procedure (65.3%) and the age restriction (34.4%).”50

The Sex Reassignment Standards also require that doctors performing gender affirming procedures
have: a valid license to practice medicine, and be a registered doctor with the medical facility’s surgical
department; over 10 years of clinical medical work experience specializing in plastic surgery, and have
held a professional position of deputy director of the department or higher professional technical
qualification for over five years; independently completed no fewer than 10 sexual organ

45 UNDP and China Women’s University, Legal Gender Recognition in China: A Legal and Policy Review, sec. 3.1.3 (2018).
46 Id. at p. 10.
47 Id. at sec. 3.1.3.
48 Id.
49 Beijing LGBT Center, 2017 Chinese Transgender Population General Survey Report, sec. 2.2 (2017)

http://chinadevelopmentbrief.cn/wp-content/uploads/2017/11/2017-Chinese-Transgender-Population-General-
Survey-Report.pdf (hereinafter 2017 Chinese Transgender Survey)
50 Id.

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reconstruction procedures (those performing female-to-male gender-reassignment surgeries need to
have completed no fewer than five penis reconstruction surgeries); undergone systematic training
certified by the province-level Health and Family Planning Commission administrative department,
and possess the necessary skills to perform gender- reassignment procedures.51 These requirements
make it difficult for transgender individuals to find a doctor who is both willing and qualified to
perform the surgery.

iv. Hormone Therapy

Access to safe and reliable hormone therapy for transgender persons in China is also highly restricted.
Seventy-one per cent of transgender people who “wanted hormone therapy thought that obtaining
safe, reliable information about hormone therapy drugs, and being able to safely and properly receive
hormone therapy at the direction of medical personnel was ‘difficult,’ ‘extremely difficult’ or ‘nearly
impossible.’”52 As a result, many transgender people resort to purchasing hormones from the black-
market, relying on recommendations from other individuals in the transgender community regarding
the type of hormone and dosage to take.53 Without access to supervised hormone therapy, these
individuals often suffer “considerable side effects from the wrong use of hormones.”54

B. Legal Gender Recognition: Changing Gender Markers and Names

According to directives issued by the State Council’s Ministry of Public Security, an individual is only
permitted to change the gender marker on official documents after sex affirming surgery. 55 After
surgery is completed, the person must submit a “certificate of gender authentication” issued by a
hospital authorized to perform the surgery, and a verification of the certificate from a notary public.”56
Under these guidelines, even people who have had gender affirming surgery face difficulties gathering
the required documentation, and only 50% have been able to change the gender markers on their
official identity documents.57

51 UNDP & China Women’s University, Legal Gender Recognition in China: A Legal and Policy Review, sec. 3.1.3 (2018).
52 2017 Chinese Transgender Survey, sec. 1.2
53 UNDP, USAID, Being LGBT in Asia: China Country Report, 39 (2014). Available at: http://www.undp.org/

content/undp/en/home/librarypage/hiv-aids/-being-lgbt-in-asia--china-country-report.html.
54 Id.
55 UNDP & China Women’s University, Legal Gender Recognition in China: A Legal and Policy Review, sec. 3 (2018).
56 Id.
57 2017 Chinese Transgender Survey at sec. 7.3; Manya Koetse, Transsexual Chinese Woman Cannot Change Post-Surgery Gender

What's on Weibo (2016), https://www.whatsonweibo.com/transgender-woman-cannot-change-official-gender-after-

11
After changing gender markers on official identity documents, many transgender people still have to
change the gender markers on other documents, like diplomas and professional certifications. 58 The
laws and policies applicable to these organizations and schools are not apparent, and transgender
people have reported that many institutions refuse to change the documents. 59

Chinese law allows a transgender person to change his or her name.60 However, a name change
requires “extensive documentation, including approval from one’s family and work unit, and
ultimately relies on the discretion of the local household registration office where a transgender person
was born or legally resides.”61 In cases where a request for a name change changing a name has been
denied on minor grounds, the courts have affirmed the discretion and authority of the household
registration authorities.62

C. Protection from Discrimination

China does not have policies or laws that “recognize sexual and gender minorities or protect them
from discrimination and unfair treatment on the basis of their gender identity or sexual orientation.” 63
Additionally, conversion therapy is legal in China, and almost 12% of transgender individuals have
been forced into conversion therapy by their parents or guardians.64

i. Employment

Article 12 of the Labor Law of the People’s Republic of China bans discrimination against workers
based on “nationality, race, sex, or religious belief,” 65 and Article 13 provides that “women shall enjoy

surgery/ (last visited Feb 10, 2019); GLOBAL TIMES, Transgender people talk about changing sex and life in China,
http://www.globaltimes.cn/content/991992.shtml (last visited Feb 10, 2019).
58 UNDP & China Women’s University, Legal Gender Recognition in China: A Legal and Policy Review, sec. 3 (2018).
59 10% of respondents revealed that they had been met with refusal after applying to change their name and gender

marker on professional accreditation documents. 36% of respondents signaled that they had been met with obstacles in
the process of changing the name and gender marker on diplomas and educational certificates, with 12% of these further
indicating that the school itself had refused. 2017 Chinese Transgender Survey, sec. 7.3.
60 GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE’S REPUBLIC OF CHINA, 1986, art. 99; REGULATIONS OF

THE PEOPLE’S REPUBLIC OF CHINA ON HOUSEHOLD REGISTRATION, 1958, art. 18.

61 UNDP & APTN, Legal Gender Recognition: A Multi-Country Legal and Policy Review in Asia, sec. 5.2.A (2017).
62 Id.
63 UNDP, Being LGBTI in China – A National Survey on Social Attitudes towards Sexual Orientation, Gender Identity and Gender

Expression (2016).
64 2017 Chinese Transgender Survey at sec. 3.3.
65 LABOUR LAW OF THE PEOPLE’S REPUBLIC OF CHINA, July 5, 1994, art. 12.

12
equal rights as men in employment. Sex shall not be used as a pretext for excluding women from
employment...Nor shall the standards of recruitment be raised when it comes to women.” 66 Similar
protections are promulgated in the Employment Promotion Law of the People’s Republic of China,
and the Law on the Protection of Rights and Interests of Women, however none of the employment
discrimination laws explicitly protect discrimination on the basis of gender identity.67

Due to the age restrictions promulgated in the Sex Reassignment Standards, most sex affirming
surgeries are conducted after a transgender person has graduated school and started a career. Because
a transgender person must obtain approval from the employer, they are forced to disclose their sex
change, which can result in discrimination or dismissal.68

ii. Criminal

Many criminal laws also fail to protect transgender victims. China criminalizes rape, but only if the
victim is a woman.69 Criminal sanctions for sexual harassment were limited to circumstances where
the victim was a woman until August 29, 2015 when the National People’s Congress Standing
Committee passed a motion to amend the law to expand the protection to “any person.” 70

iii. Marriage

The Marriage Law of the People’s Republic of China does not recognize same-sex marriage,71 and
there is no law recognizing same-sex partnerships. Transgender people may marry a person only if the
couple’s gender markers are different. Unmarried couples receive no protection for “basic partner
rights such as joint property, inheritance, tax and mortgage benefits, or joint adoption.” 72

66 Id. at art. 13.

67 EMPLOYMENT PROMOTION LAW OF THE PEOPLE’S REPUBLIC OF CHINA, 2015, art. 3
68 UNDP & China Women’s University, Legal Gender Recognition in China: A Legal and Policy Review, sec. 3.2.3 (2018).
69 The law states: “whoever, by violence, coercion or other means, rapes a woman is to be sentenced to not less than

three years and not more than 10 years of fixed-term imprisonment.” CRIMINAL LAW OF THE PEOPLE’S REPUBLIC OF
CHINA, 1997, art. 236.
70 CRIMINAL LAW OF THE PEOPLE’S REPUBLIC OF CHINA, Aug, 29, 2015, art. 237.
71 UNDP, USAID, Being LGBT in Asia: China Country Report, supra note 9 at 39.
72 Id.

13
THE REALITIES OF LIFE AS A TRANSGENDER INDIVIDUAL IN THE
PEOPLE’S REPUBLIC OF CHINA
In addition to the legal barriers that transgender individuals experience there are social and cultural
obstacles that effect the rights of transgender people. Chinese common opinion about lesbian, gay,
bisexual, and transgender (hereinafter LGBT) rights is “to let things drift if they do not affect one
personally.”73 China has a history of cross-dressing that is viewed by the general public as solely for
the idea of “gender as a performance.”74 While this type of performance is well-established in Chinese
culture, it was viewed as strictly “casual, momentary breaching of the gender boundary.”75 With the
increasingly blurred lines that have arisen in the modern era, the gender norms became “more strictly
upheld.”76 This historical context also speaks to why feminine presenting transgender individuals are
reported to have a slightly easier time with navigating their transition and integration into the
community.

The general refusal of understanding or acceptance can be seen more distinctly on a micro scale;
relatives often become cruel when they discover the gender/sexuality of the LGBT individual and
workplaces seek to isolate colleagues.77 Persons who are not fortunate enough to be surrounded by a
community willing to embrace them have increasingly faced pressures to engage in “fake marriages”
in order to present a “normal” lifestyle.78 It is estimated that there are over 4 million transgender
individuals in China, but only 2.2 percent of this population reports having a support system of either
trans friends or family.79 The effectiveness, or lack thereof, of government policies in real-life
circumstance can be seen in healthcare education and workplace culture.

A. Healthcare Education

73 Pi Jun, Transgender in China, 7 Journal of LGBT Youth 346, 352 (2010).

74 THE DIPLOMAT, China’s Complicated Approach to Transgender Rights, https://thediplomat.com/2017/10/chinas-
complicated-approach-to-transgender-rights/ (last visited Feb 10, 2019).
75 THE WORLD OF CHINESE, Crossing the Gender Lines: Transgenderism Might Just Be A Step Too Far For China,

http://www.theworldofchinese.com/2013/11/crossing-the-gender-lines/ (last visited Feb 10, 2019).

76 Id.
77 Pi Jun, Transgender in China, 7 Journal of LGBT Youth 346, 352 (2010).
78 Id.
79 Asia Catalyst, “My Life is too Dark to See the Light”: A Survey of the Living Conditions of Transgender Female Sex Workers in

Beijing and Shanghai (2015) http://asiacatalyst.org/wp-content/uploads/2014/09/Asia-Catalyst-TG-SW-Report.pdf; The

Williams Institute at The University of California Los Angeles School of Law, Public Support for Transgender Rights a Twenty-
Three Country Survey (2016) https://williamsinstitute.law.ucla.edu/wp-content/uploads/23-Country-Survey.pdf

14
 i. The Pathologization of Transgender People

Regulatory approaches are the primary means by which information regarding transgender rights and
education has been disseminated amongst the population. This approach has resulted in the
pathologization of transgender people – that is, viewing transgender people as mentally ill. 80 The
requirement for transgender persons to be diagnosed as having a mental illness in order to pursue
sexual reassignment surgery has opened up a rift between the transgender community and the medical
community, and this is only the initial diagnosis that is required. Many transgender individuals do not
wish to pursue this process for such a deep mischaracterization and advocates further state that it
undermines their “dignity, privacy, right to self-determination and recognition before the law, as well
as other human rights.”81

The April 2001 version of the 3rd Edition of the Chinese Classification of Mental Disorders (“CCMD-
3”) outlined diagnostic criteria for “gender identity disorder” through the lens of behavioral expression
and time duration as follows:

 Behavioural expression:
o The individual’s behaviour in dress, manner of speaking, and other external expression
conformed to that expected of the “gender opposite their own physiological sex”.
o The individual refused to participate in activities expected of the individual’s gender.
Persistent and firm rejection of their physiological sex characteristics.
 Time duration:
o Behavioural symptoms, as identified above, should persist for longer than six months.82

Diagnostic criteria for “transsexualism” have an emphasis on terms such as “disgust,” “psychological
tension,” and “desire to change one’s psychological characteristics.”83 It is of note that this is a
diagnosis that is to be made after all other checks have made for other mental illnesses, physical

80 UNDP and China Women’s University, Legal Gender Recognition in China: A Legal and Policy Review, sec. 4.1 (2018).
81 Id.
82 Id.
83 Id. citing Zhang Xiaohui and Tong Huijie. Diagnosing Gender Identity Disorder: Perspectives from the DSM-4, CCMD-3, ICD-

10, 5 Journal of Neuroscience and Mental Health 376 (2006).

15
abnormalities, and other alterations. The phrasing of this criteria has lead therapists and doctors to
view individuals as “sufferers of transsexualism.”84

ii. Lack of Trust in Doctors

The difficulties transgender individuals face in obtaining approval and conducting sexual reassignment
surgery has made the stakes incredibly high and the regulations even more unlikely to be followed. 85
In 2014, data from the Changzheng Hospital and Shanghai Ninth People’s Hospital, two major centers
for sexual reassignment surgery, suggests that less than 800 transgender patients have been treated in
the past 30 years.86 Among these operations, male-to-female is considered less complicated, and the
number of these operations also continues to decrease in state owned hospitals.87

The Sexual Reassignment Standards were created with good intentions, but there have been
suggestions that they need substantial revision due to how onerous the process is, failure of the
regulation to align with prevailing guidelines, and the lack of mention of hormone therapy. 88 Further,
the regulation does not specify any penalties for possible violation, which leaves potential patients
unsure of their methods of relief in the event there is an issue with their medical procedure.89 Critics
of the current standards argue that regulations should be aimed at promotion of more humane
practices and better general health rather than mere health management, the evidence of which can
be seen even in how Chinese doctors choose to manage the pain of the surgery: it has been of note
that doctors at one point did not even prescribe analgesic.90

iii. Individual Initiatives

The aforementioned difficulties between the Chinese medical community and the transgender
community have led to some individuals pursuing less than ideal measures to meet their needs,
sometimes with dire results.91 There has been a growing trend of transgender persons of resorting to

84 UNDP and China Women’s University, Legal Gender Recognition in China: A Legal and Policy Review, sec. 4.1 (2018).
85 See generally UNDP and China Women’s University, Legal Gender Recognition in China: A Legal and Policy Review (2018).
86 Hua Jiang, et al., Transgender Patients Need Better Protection in China, 384 The Lancet 2109, 2109-10 (2014).
87 Id.
88 Id.
89 Id.
90Id.; Pi Jun, Transgender in China, 7 Journal of LGBT Youth 346, 353 (2010).
91 SINA NEWS, Man Died in a Rental House in Beijing after Completing a Sex Change Operation in Thailand,

http://news.sina.com.cn/s/2006-02-06/00188128730s.shtml (last visited Feb 10, 2019).

16
self-dosing and obtaining surgery overseas (notably, Thailand) as a means of circumventing the
Chinese system.92

While this has worked for some, individuals have attested to health complications of varying severity
as a result of self-dosing. One woman, Pipi, who lives in the Liaoning Province resorted to self-dosing
more than 15 years ago and developed diabetes from taking the drugs. 93 This was during the first days
of the internet, but more recent developments of online pharmaceuticals have led to e-commerce
platforms that sell some of the hormonal products that are necessary to undergo changes, which has
encouraged individuals to “fabricate prescriptions and…disguise themselves as pharmaceutical
professionals to directly buy drugs” from pharmacies. There is no practical way to verify the quality
of the medicine, however, with individuals only having the availability of “the descriptions and
certifications the online shops display” to make their determinations. 94 Obtaining the drugs is only the
first step – individuals them must determine the doses that would work best for them, which has
created a niche in the online community with others providing their personal experiences for
comparison. The dangers here cannot be understated – using incorrect does “can damage people’s
internal organs, especially their kidneys, and the side effects can be fatal.”95

Many people do not wish to assume the risk of self-diagnosis and have access to capital that will take
them abroad to conduct the surgery. Notably, Thailand is a nearby country that is common for
individuals to travel to in order to conduct gender reassignment surgery. One person quoted her
surgery at 70,000 yuan in total (approx. 10,378 USD) and being away from more than 20 days. The
experience was markedly different, “in China…people often face discrimination… [unlike] in Thailand
they can enjoy good service.”96 Others have utilized benefits in countries such as Germany while they
are students overseas because “surgery fees can be paid for by the government” itself. 97 This is a stark
contrast to a quote of the service in China coming at a cost of 100,000 yuan (approx. 14,826 USD)
and nearly a year in the hospital.98

92 GLOBAL TIMES, No Tolerance for Transgender Prejudice, http://www.globaltimes.cn/content/676640.shtml (last visited

Feb 10, 2019).
93 Id.
94 Id.
95 Id.
96 Id.
97 Id.
98 Pi Jun, Transgender in China, 7 Journal of LGBT Youth 346, 353 (2010).

17
 B. Workplace Turmoil
In a landmark decision in the southwestern city of Guiyang (in China’s Guizhou province), a trans
man by the name of Mr. C*99, won a discrimination case against his former employer. 100 Mr. C claimed
that he was unfairly fired in 2015 because of his gender identity. Mr. C, like many others, chose to
dress in a manner that reflected his personality yet was respectful of workplace dress, yet he was
accused by the company’s human resource manager of dressing “like a gay man” and there was cause
for concern that he “might damage the company’s reputation.”101 The statement in question alongside
the details of the ruling highlight just how far China still has to go with addressing transgender rights
in the workplace.102

Mr. C’s case was decided in 2016 and was China’s first transgender discrimination lawsuit, however,
the details of the lawsuit leave much to be desired when it comes to the judicial certainty of transgender
rights in the workplace. Mr. C’s case resulted in the courts determining that he was unfairly fired, but
the court stated that “there was no proof that Mr. C’s termination has resulted from the company’s
discriminatory attitude toward transgender people and did not grant Mr. C’s demand for an apology.”
The reasons behind this portion stem from the plaintiff’s inability to verify two documents directly
related to the firing itself.

i. Institutional Discrimination

Nonetheless, this landmark case highlighted what has been coined “invisible discrimination,” as
transgender individuals face workplaces that stigmatize their lifestyle choices and often choose to fire
them for superficial reasons unrelated to their gender/sexuality and the timing is suspect at best. 103
Situations like these typically arise once the transgender individual seeks to change the gender listed
on their government identification post-surgery. Important files and documents, such as university
degree certificates, are linked to their government identification. In the interest of consistency, once

99 Name edited for the protection of his family’s privacy.

100 VOX, Transgender activists in China Just Scored a Historic Victory,
https://www.vox.com/world/2017/7/27/16049820/china-transgender-discrimination-lawsuit-mr-c (last visited Feb 10,
2019).
101 Id.
102 THE NEW YORK TIMES, Transgender Man was Unfairly Fired but Bias Not Proved, Chinese Court Says,

https://www.nytimes.com/2017/01/02/world/asia/china-transgender-lawsuit.html?mcubz=1&_r=0 (last visited Feb

10, 2019).
103 Id.

18
one is changed, all of them must be changed. This process is complicated, bureaucratic, and as one
can imagine, lengthy. At the end of this long journey comes some of the smaller changes – notifying
extended networks and most importantly, employers. The completion of changing all paperwork is
critical because consistency in records is a distinct part of background checks for employment.
Education and employment records that do not match an individual’s gender can result in job
applications being rejected because the “qualifications cannot be verified.” 104

It does not help that there have been some mixed signals from government organs. One very notable
instance in 2011 when Jin Xing105, who is arguably China’s most well-known transgender person, was
selected as a judge on the Chinese reality series We Are the Music but was pulled from judging at the
last minute. Officials from the Zhejiang Administration of Radio, Film and Television claimed that
“her transgender identity could have negative effects on society.”106 The negativity portrayed in this
instance, and in generally negative media portrayals of transgender individuals in china, does not bode
well for individuals who are looking to their communities at large for support. Unfortunately, it is
common that they turn toward grey areas of employment to make ends meet.107

INTERNATIONAL AND COMPARATIVE PERSPECTIVES ON THE

APPROPRIATE STANDARD OF CARE

A. Overview of the WPATH-SOCs and Other Alternative Standards of Care

The World Professional Association for Transgender Health (WPATH) 108 is the primary organization
which publishes a complete set of model standards of care (SOCs) for addressing transgender health
issues. The SOCs are used by governments, health care providers, health care payers, patients, and

104 THE DIPLOMAT, China’s Complicated Approach to Transgender Rights, https://thediplomat.com/2017/10/chinas-

complicated-approach-to-transgender-rights/ (last visited Feb 10, 2019).
105 SOUTH CHINA MORNING POST, Who is Jin Xing, China’s Only Transgender Celebrity?,

https://www.scmp.com/magazines/style/people-events/article/2173609/who-jin-xing-chinas-only-transgender-
celebrity (last visited Feb 10, 2019).
106 SINA NEWS, Transsexual Actress Slams Prejudice, http://english.sina.com/life/p/2011/0921/398970.html (last visited

Feb 10, 2019).

107 THE GUARDIAN, Transgender Sex Workers Are China’s Most Marginalized People,

https://www.theguardian.com/world/2015/jan/16/transgender-sex-workers-china-most-marginalised (last visited Feb

10, 2019).
108 Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, WPATH,

https://www.wpath.org/publications/soc (last visited Feb 6, 2019).

19
other stakeholders.109 WPATH was formerly known as the Harry Benjamin International Gender
Dysphoria Association, and released the seventh and current revision of its SOC in 2011. 110 The
WPATH states that the unifying goal of its standards of care is “to provide clinical guidance for health
professionals to assist transsexual, transgender, and gender nonconforming people with safe and
effective pathways to achieving lasting personal comfort with their gendered selves, in order to
maximize their overall health, psychological well-being, and self-fulfillment.”111

Although there are some local standards of care in countries such as Germany, Italy, and the
Netherlands, these are most often based on earlier versions of the WPATH-SOCs, illustrating the
extent to which the WPATH operates as the principal provider of model standards of care.112 Two
notable alternatives are the set of model standards developed by the International Conference on
Transgender Law and Employment Policy, Inc. (ICTLEP), and the Informed Consent Model (ICM).

The ICLETP standards are somewhat more lenient than that of the WPATH, while SOCs based on
prior revisions of the WPATH standards are often stricter in imposing requirements for access to
various procedures and treatments. Most notably, the ICTLEP standards do not contain so-called
“real life experience” requirements, which provide that individuals seeking gender reassignment
surgery should be either mandated or encouraged to live as their desired gender for a period of time
before becoming eligible for reassignment surgery.113 The 7th version of the WPATH, released in
2011, did away with a mandatory three month real life experience requirement for hormone therapy
and a one-year requirement for breast augmentation and other surgeries, but still advocates that these
three-month and one-year RLE’s are recommended, a recommendation that many doctors and
countries follow.114 In the United Kingdom, for example, the National Health Service typically

109 Lin Fraser & Gail Knudson, Past and Future Challenges Associated with Standards of Care for Gender Transitioning Clients, 40
Psychiatric Clinics of North America 15–27 (2017).
110 WPATH: History of the Organization (2019), WPATH, https://www.wpath.org/about/history (last visited Feb 6, 2019).
111 Supra note 108.
112 Timo O. Nieder & Bernhard Strauss, Transgender health care in Germany: Participatory approaches and the development of a

guideline, 27 International Review of Psychiatry 416–426 (2015); Transgender Healthcare Netherlands: Information and Links,
https://www.transgenderhealth.com/transgender-healthcare-netherlands-information-and-links/ (last visited Feb 6,
2019).
113 Supra note 108.
114 Ibid., Eli Coleman, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, Principles of

Gender-Specific Medicine 69–75 (2017).

20
requires that individuals undergo hormone therapy for 12 months before taking any further steps
toward their goal of undergoing gender reassignment surgery. 115

The primary difference between the Informed Consent Model (ICM) and the WPATH SOCs is the
involvement of a mental health professional. The WPATH standards require assessments by mental
health professionals at many stages of treatment. The ICM, however, strives to provide greater
autonomy and respect for patients by stressing that the patient is the best positioned to judge the
potential benefits and drawbacks of treatment. 116 Accordingly, the ICM requires the involvement of
mental health professionals only in specific situations such as where the patient might have a mental
condition that undermines the capacity for informed consent.117

The forthcoming text seeks to outline the key tenets of the WPATH SOCs and to assess them from
a scientific, ethical, and cultural standpoints in order to identify criticisms of and alternatives to these
standards of care. WPATH’s clinical recommendations for assessment are addressed first, followed
by an analysis of the WPATH-SOCs’ three categories of treatment options: social, hormonal, and
surgical.

B. Assessment
The WPATH SOC divides assessment protocols into separate sections for children and adults given
the unique challenges associated with minors. For both children and adults, the WPATH divides
treatment options into three categories: social, hormonal, and surgical.

i. Assessment and Treatment of Adults

The WPATH SOCs, require that mental health professionals be involved in the assessment of
individuals in order to determine if they should undergo treatment. This requirement is controversial,
as will be discussed below. The WPATH defines mental health professionals to include psychologists,

115 Hayley Westcott, Transgender people face two-year wait for NHS appointment, BBC News Online, January 30, 2018,
https://www.bbc.com/news/uk-england-42774750 (last visited Feb 6, 2019).
116 Timothy Cavanaugh, Informed Consent in the Medical Care of Transgender and Gender-Nonconforming Patients, 18 The AMA

Journal of Ethics 1147–1155 (2016).

117 Id.

21
social workers, psychiatrists and other types of therapists, and states that they should (1) achieve a
masters degree or equivalent, (2) be able to understand the Diagnostic Statistic Manual of Mental
Disorders (DSM) and/or the International Classification of Diseases (ICD), (3) recognize co-existing
mental health issues, (4) have training in therapy or counselling, (5) be knowledgeable about gender
dysphoria and non-conforming identities, and (6) have access to continuing education, such as
workshops and seminars.118

In addition to these six credentials, the WPATH advises that clinicians should have “cultural
competence,” or edification on pertinent community or public policy issues.119 The WPATH-SOCs
mention of “cultural competence” may belie the fact that, in order to be effective, standards of care
must be tailored and adapted to individual countries. Indeed, the WPATH itself acknowledges that
its perspective is North American and European, stating that “WPATH recognizes that the SOC have
grown out of a Western tradition and may need to be adapted depending on the cultural context.”120

Once equipped with the appropriate credentials, health professionals should follow five steps when
presented with a client with gender dysphoria according to the WPATH SOCs. The first step is to
assess the patient, which includes recording the development of the client’s gender dysphoria,
evaluating the impact of stigma on the client’s mental health all while considering whether the client’s
dysphoria would be better accounted for by another “primary” diagnosis.121 Second, the health
professional should educate the client with information that will facilitate discovery of a comfortable
gender expression and provide knowledge about potential medical intervention. The third step is to
discuss and educate the client with treatment options for co-existing mental health issues. Fourth and
fifth involve assessing the client for treatment options, the former detailing hormonal treatment and
the latter surgical. Both hormone therapy and surgery can be initiated by a referral from a mental
health professional, but such professionals should keep front of mind that such decisions are client
decisions that should result from an informed perspective and coordination among health
professionals. While hormone therapy and chest surgery require one referral letter, two referrals from
independent health professionals are needed for genital surgery.122

118 Supra note 108.

119 Id.
120 Id.
121 Id.
122 Id., p. 26-7.

22
Departing from the WPATH SOC is the Informed Consent Model (ICM), which does not require the
involvement of a mental health professional and is believed by its proponents to provide greater
autonomy and respect for patients.123 While the ICM still emphasizes the importance of discussions
between patient and clinician, it emphasizes the patient as the best positioned to judge the potential
benefits and drawbacks of treatment. 124 The ICM does not proscribe the involvement of mental health
professionals in specific situations such as where the patient might have a mental condition that
undermines the capacity for informed consent. However, requiring such a professional for all patients
serves as another hoop in an already difficult process and may engender unhelpful therapeutic
relationships where the patient tells the therapist what they need to hear to get the referral. A drawback
of the ICM relates to insurability, as some insurers default to WPATH SOCs which require the
involvement of the mental health professional as a gatekeeper. The degree to which this matter varies
by health insurance company. 125

The requirement that individuals see a mental health specialist ties closely with the classification of
conditions related to transgender identification as mental disorders under the WHO’s ICD-10, which
was released in 1990. As Robles et al. explain:

The definition of conditions related to transgender identity as mental disorders has been used to justify denial of
coverage for these conditions by governments and private health plans and has contributed to the perception
that transgender people must be treated by psychiatric specialists, further restricting access to services that could
be provided at other levels of care.126

The rationale given for mental health referrals is based on the idea that treatment is often irreversible,
so ensuring that a patient is fully committed is important.127 Opinions on irreversibility are changing,
on the other hand, as medical techniques such as penis reconstruction and the cessation of hormone
therapy can somewhat reverse specific processes. Other defenses of the policy are that it helps the

123 Timothy Cavanaugh, Informed Consent in the Medical Care of Transgender and Gender-Nonconforming Patients, 18 The AMA
Journal of Ethics 1147–1155 (2016).
124 Id.
125 Id.
126 Rebeca Robles et al., Removing transgender identity from the classification of mental disorders: a Mexican field study for ICD-11, 3

The Lancet Psychiatry 850–859 (2016).

127 Timothy J Murphy, Should Mental Health Screening and Psychotherapy Be Required Prior to Body Modification for Gender

Expression?, 18 The AMA Journal of Ethics 1079–1085 (2016).

23
patient inform and clarify what is important in relieving gender dysphoria, e.g., body modifications,
social changes, or changing relationships. 128 The WPATH SOC are considered flexible guidelines, so
while the current version still strongly advises the gatekeeping role of mental health professionals, it
may not be necessary in all cases. However, while the consensus remains that mental health
professional referral is an important step for treatment, 129 it is important to emphasize the human
rights issue at hand, specifically, autonomy over one’s body. 130

Additionally, in China, family members serve as an additional gatekeeper when it comes to sexual
reassignment surgery. As Jiang et. al. reports, “patient[s] must get approval from direct relatives” in
order to undergo reassignment. 131 This additional barrier to gender reassignment surgery is largely
unique to China and reflects the prevalence of family-based decision making in Chinese culture.132 In
countries other than China, parental consent is usually only a consideration with respect to minors, as
will be discussed below.

Finally, the WPATH has come under some criticism for using the language “disorders of sexual
development,” or DSD, to refer to “a somatic condition of atypical development of the reproductive
tract.”133 While the WPATH includes a separate section on the assessment and care of individuals
with such somatic conditions due to its view that these individuals have unique treatment needs, some
have criticized the WPATH for their use of the term “disorder.” Just as the previously discussed study
in Mexico outlined the negative impact that the classification of gender dysphoria as a mental disorder
had on patients, critics of the WPATH’s use of “disorder” make much the same argument.134 A study
by the Lurie Children’s Hospital found that both clinicians and patients widely object to the use of the
term “disorder” to refer to atypical sexual development, and instead prefer to use the terms “intersex”

128 Id.
129 Medical students’ ability to care for lesbian, gay, bisexual, and transgendered patients, American College of Obstetricians and
Gynecologists’ Committee on Adolescent Health, Committee Opinion No. 685 (2017).
130 Lin Fraser & Gail Knudson, Past and Future Challenges Associated with Standards of Care for Gender Transitioning Clients, 40

Psychiatric Clinics of North America 15–27 (2017).

131 Hua Jiang et al., Transgender patients need better protection in China, 384 The Lancet 2109–2110 (2014).
132 Sam Winter, Cultural Considerations for the World Professional Association for Transgender Health Standards of

Care: The Asian Perspective, 11 International Journal of Transgenderism 19–41 (2009).

133 Hughes, I. A., Houk, C. P., Ahmed, S. F., Lee, P. A., & LWPES1/ESPE2 Consensus Group, Consensus statement on

management of intersex disorders, 91 Archives of Disease in Childhood, 554-563 (2006).

134 Rebeca Robles et al., Removing transgender identity from the classification of mental disorders: a Mexican field study for ICD-11, 3

The Lancet Psychiatry 850–859 (2016).

24
and “differences in sexual development.”135 Other advocates take an even stronger stance in their
criticism of the use of the DSD terminology. Davis et al. argue that the underlying purpose of
classifying intersex development as a disorder is to push the condition “neatly into medical turf and
safely away from critics of its medicalization.”136

After referral, criteria for hormone therapy requires documentation of the condition, informed
consent, client age of majority, and control over pertinent client mental health concerns. Hormone
therapy can be administered by doctors (specialists or primary care physicians) or nurses but should
be accompanied by proper coordination among health care professionals. Because no formal training
programs exist (at least in 2011 when version 7 of the WPATH SOC was published) clinicians should
keep current with medical literature and discuss hormone therapy with other professionals through
networks established by WPATH. Six tasks encompass the core responsibilities of hormone therapists:
an initial evaluation, a discussion of expected effects with the patient (which on average are observed
over a 2 year period) confirmation that patient has capacity to understand the treatment, ongoing
medical monitoring, communication across all health providers, and finally, if necessary, the provision
of written documents to aid the patient in providing proof of therapy when necessary, e.g., with police
and other authorities. Clinicians should perform thorough physical exams consisting of blood
pressure, height, and weight measurements as part of any assessments. In addition to the above
guidelines, WPATH details the regimens for both masculinizing and feminizing therapies. 137

Before initiating surgery, the client must have documented persistent gender dysphoria by a healthcare
professional as discussed above. Doctors who perform surgery should be board certified and can be
urologists, gynecologists, plastic surgeons, or general surgeons. In addition, genital reconstruction
experience must be documented and skills should be peer reviewed.138 Surgeons should be
communicative with other health professionals in the client’s care plan, such as the referring mental
health clinician. Before performing surgery, the patient must be informed and have a pre-surgical

135 Emilie Johnson et al., Attitudes towards ‘disorders of sex development’: nomenclature among affected individuals, 13 Journal of
Pediatric Urology (2017)
136 Georgiann Davis et al., DSD is a Perfectly Fine Term: Reasserting Medical Authority through a Shift in Intersex Terminology, 12

Sociology of Diagnosis (Advances in Medical Sociology) 155-82 (2011).

137 Supra note 108.
138 Id.

25
consultation with the surgeon. After surgery, long-term follow up should be included as part of the
care plan.139

ii. Assessment and Treatment of Children

WPATH creates separate care standards with respect to children, as the treatment of children presents
unique challenges. Puberty is a complicating factor, as is the fact that some children may explore the
possibility that they are transgender while on a path of self-discovery that ultimately ends with them
determining that they are not, in fact, transgender.140
Puberty suppression is a controversial area within transgender health care. The WPATH SOCs note
that studies have shown that only 12-27% of prepubescent children with gender dysphoria continue
to experience dysphoria in adulthood, while adolescents with gender dysphoria were found to almost
universally continue to experience dysphoria into adulthood. 141

WPATH categorizes puberty suppressing treatments into three categories: fully reversible, partially
reversible, and irreversible interventions. WPATH recommends that children experience puberty
until at least Tanner stage 2 before becoming eligible for even fully reversible interventions, and thus
does not advocate for the treatment of children with gender dysphoria with anything other than
counseling.142 MPATH further states that irreversible interventions should only be carried out on
adults.

This view on puberty suppression is the prevailing one, but other clinicians offer alternative
perspectives. Lambrese argues that “The importance of preventing development of secondary sex
characteristics during this period cannot be overstated…, [as] [o]nce these children… undergo the
pubertal development of the “wrong” sex, their psychological well-being deteriorates significantly, and

139 Id.
140 Joshua Lambrese, Suppression of Puberty in Transgender Children, 12 American Medical Association Journal of Ethics 645–
649 (2010).
141 de Vries, A. L. C., Doreleijers, T. A. H., Steensma, T. D., & Cohen-Kettenis, Psychiatric comorbidity in gender dysphoric

adolescents. Journal of Child Psychology and Psychiatry (2011); Zucker, K. J., Gender identity development and issues. Child and
Adolescent Psychiatric Clinics of North America, 13(3), 551-568 (2004)
142 Supra note 108.

26
many develop depression and suicidal ideation.”143 Another US doctor, Giordano, shares this belief,
arguing that “if allowing puberty to progress appears likely to harm the child, puberty should be
suspended.”144

Special issues relating to informed consent also crop up with respect to children, particularly those
born with intersex characteristics. As noted by Dreger, parents often “choose a gender” for children
born with both male and female characteristics, and often do not fully inform these children of their
own medical histories. This lack of information is often supported by children’s’ doctors, and thus
reduces the extent to which they are fully informed when making subsequent medical decisions.145 Dr.
Patricia Martin echoes this, noting that “consent remains an issue even if the recommended standard
is followed and a psychologist is involved, because the course of treatment decided upon often
includes deliberately withholding medical information from the child.”146

143 Joshua Lambrese, Suppression of Puberty in Transgender Children, 12 American Medical Association Journal of Ethics 645–
649 (2010).
144 Giordano S., Lives in a chiaroscuro. Should we suspend the puberty of children with gender identity disorder?, 34 Journal of Medical

Ethics 580-584 (2008).

145 Alice Dreger, Ambiguous Sex or Ambivalent Medicine?, 28 The Hastings Center Report (1998),

http://www.isna.org/library/dreger-ambivalent.htm (last accessed 2/9/2019).

146 Patricia Martin, Moving toward an international standard in informed consent: the impact of intersexuality and the Internet on the

standard of care, Duke Journal of Gender Law & Policy, Summer, 2002, p.135(35)

27
RECOMMENDATIONS

1 - Modify legal definitions of “gender” in antidiscrimination statutes to include

protections for transgender people.

The Chinese Government could enact laws that expressly address the discrimination, stigmatization
and marginalization faced by the transgender community within the various institutions of Chinese
society. These laws could seek to adequately address all the issues discussed above particularly in
respect to accessing healthcare and psychological counselling and support.

2 - Specialized inquiries in epidemiological research in order to raise awareness

and bring attention to the unique needs and challenges of transgender people.

Regarding the current HIV epidemic in China and its research and treatment programs, it has been
reported that transgender women are not treated as a separate group of individuals for the purpose of
epidemiological study.147 This has in turn affected the level of attention, resources, knowledge and data
that is available regarding the rate of infection and treatment of transgender’s who are women in China
and are HIV positive.148 These groups of people are said to be grouped with men who have sex with
men (MSM) for the purpose of HIV/AIDS research and health interventions/ programs.149 This gap
in research and data on transgender and HIV/AIDS needs to be addressed urgently by the
Government of China.

3 - Remove the gender affirming surgery requirement for modifying government

identification.

Not all transgender individuals want gender affirming surgery, and many cannot afford it. Additionally,
China does not have enough qualified medical professionals to diagnose and operate on all of the
transgender people in China. By forcing people to undergo surgery in order to change their identity
card, the Chinese government is ignoring the autonomy of many transgender individuals and

147 Supra note 7., Best, John et al., Sexual behaviors and HIV/syphilis testing among transgender individuals in China: implications for
expanding HIV testing services, 42,5 PMC.J 281-5 (2015).
148 Id.
149 Id.

28
overburdening their system. By removing this requirement, the government will allow transgender
people to decide which gender affirming services are suitable and increase access to surgery for those
who decide that they need it.

4 - Promote access to safe, reliable and affordable hormone therapy in China for
transgender persons.

Access to safe, reliable and affordable hormone therapy for transgender persons in China is highly
restricted. As a result, transgender people purchase hormones from unqualified black market
vendors and treat themselves without professional medical supervision or accurate information on
the correct hormone types and dosages. This leads to the use of inappropriate hormones, ineffective
therapy, and adverse side effects. Safe, reliable and affordable hormone therapy should be available
to all transgender persons in China, through appropriate and effective regulation of the quality,
safety and cost of these therapies, including ensuring accessible, accurate and comprehensive
information about the hormones, their appropriate combinations and dosages, and their side effects.

5 - Enact stronger legal protections for violations of health privacy laws.

Members of the transgender community in China attested to the interference of their family life with
their health care in that doctors often contact the families of transgender persons, without the person’s
consent, to discuss confidential medical information. None of this shared information would be health
information that is critical to the safety and wellbeing of the patient, instead the doctor felt culturally
influenced to utilize the parents to potentially slow down or stop the process altogether. It is important
that transgender individuals’ privacy is protected in light of issues related to discrimination within their
communities. There was no information that arose in our research that demonstrated any sort of
enforcement mechanisms for these violations of privacy. The violations of privacy of transgender
patients is one of the many contributing factors to individuals choosing much riskier methods to gain
access to hormone therapy and gender reassignment surgery.

6 - Reduce cost or ensure insurance coverage for transition related services.

Currently, services related to sexual reassignment surgery and related mental health services are not
available to be subsidized under Chinese medical insurance. The financial costs of the procedure and
the lack of insurance coverage are major barriers to accessing health care for transgender individuals.

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These services can cost significantly less in other countries, and the hormones can be procured for
cheaper prices on the black market.150 Due to the lack of official coverage, transgender individuals also
have no official way to take medical leave of absence from their jobs for a surgery that, in China, could
hospitalize them for up to a year.151 In advocating for increased safety related to any medical
undertaking that a transgender individual seeks, it is imperative that the cost of these services is
adjusted – and insurance coverage provided – to reduce the risk of patients turning to much more
dangerous options.

7 - Reduce the role of mental health professionals as gatekeepers by adopting

aspects of the Informed Consent Model SOCs encouraging patient autonomy.

The shortage of certified mental healthcare professionals and the requirement that individuals receive
approval from these professionals in order to become eligible for surgical procedures makes these
professionals de facto gatekeepers that those wishing to undergo surgery must work hard to satisfy. The
shortage of these professionals in China makes them at the very least a bottleneck in the process, and
our client has spoken of how mental health professionals often act as a barrier to surgery by, among
other things, seeking patients’ families’ approval before giving patients the required authorization to
undergo surgery. Mental health professionals in China thus do not often align with a rights-based
approach to health promotion, nor do they comport with an informed consent model of standard of
care.

8 - Modify the policy on criminal records related to gender affirming surgery.

Requiring evidence of no criminal record is problematic because it discriminates against individuals

who have committed a crime. Because the evidence required for a name and gender marker change
allow the Chinese government to maintain a link between an individual’s past and current identity,
allowing someone with a criminal conviction would not endanger society or allow a person to evade
prosecution. Thus, this requirement serves no purpose but to discriminate against and further punish
those who have a criminal record. Ideally the requirement would be removed in its entirety, however,
at a minimum a differentiation should be made between serious offenses and minor violations.

150 GLOBAL TIMES, No Tolerance for Transgender Prejudice, http://www.globaltimes.cn/content/676640.shtml (last visited
Feb 10, 2019).
151 Pi Jun, Transgender in China, 7 Journal of LGBT Youth 346, 353 (2010).

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 9 - Enact widespread grassroots education and activism in order to promote
education on gender identity and acceptance of transgender people within the
Chinese community.

There is an urgent need for sensitizing and educating the Chinese society at large, on the acceptance
and tolerance of the transgender population in order to demystifying their lives in the eyes of Chinese
society and eradicate the social stigmas and discrimination they face within society.152 By confronting
these social stigmas and engaging in educating the population at all levels, only then will the
transgender population be able to achieve social inclusion in China and eliminate the prevailing
stigmas, discrimination and violence they face.153

10 - Create counseling services specifically designed for minors grappling with

gender identity issues.

As is highlighted by the WPATH’s creation of extensive, separate standards of care for children and
adolescents, gender identity issues often begin in young adulthood, and sometimes even prior to
puberty. Given China’s age requirement of 20 years old for the commencement of any medical
treatment for gender dysphoria, and the stigma associated with identifying as transgender in China,
there is a need for the Chinese government and organizations like our partner, the Psychological Team
for Trans People in China, to offer counseling services to children and young adults grappling with
gender identity issues.

152 Supra note 5.

153 Id.

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BIBLIOGRAPHY
1. Agence France-Presse, China’s Transgender People ‘step forward’ from the shadows, SOUTH CHINA
MORNING POST (Jun. 14, 2018, 10:27 PM),
https://www.scmp.com/news/china/society/article/2150773/chinas-transgender-people-step-
forward-shadows.
2. Agi Veres, A safe and Inclusive Society for Transgender People in China, UNITED NATIONS
DEVELOPMENT PROGRAM (UNDP), (Nov. 13, 2018),
http://www.cn.undp.org/content/china/en/home/ourperspective/ourperspectivearticles/2018
/a-safe-and-inclusive-society-for-transgender-people-in-china.html.
3. Arber Mavraj, The LGBT Movement in China: public Perception, Stigma, and the Human Rights Debate,
8, INQUIRIES JOURNAL, 1/21 (2016).
4. Asia Catalyst, “My Life is too Dark to See the Light”: A Survey of the Living Conditions of Transgender
Female Sex Workers in Beijing and Shanghai (2015) http://asiacatalyst.org/wp-
content/uploads/2014/09/Asia-Catalyst-TG-SW-Report.pdf.
5. The Williams Institute at The University of California Los Angeles School of Law, Public Support
for Transgender Rights a Twenty-Three Country Survey (2016).
https://williamsinstitute.law.ucla.edu/wp-content/uploads/23-Country-Survey.pdf
6. Beijing LGBT Center, 2017 Chinese Transgender Population General Survey Report (2017)
http://chinadevelopmentbrief.cn/wp-content/uploads/2017/11/2017-Chinese-Transgender-
Population-General-Survey-Report.pdf
7. Best, John et al., Sexual behaviors and HIV/syphilis testing among transgender individuals in China:
implications for expanding HIV testing services, 42,5 PMC.J 281-5 (2015).
8. China LBT Rights Initiative, Discrimination Faced by Lesbian, Bisexual and Transgender Women in
China,
https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/CHN/INT_CEDAW
_NGO_CHN_16577_O.pdf.
9. CONSTITUTION OF THE PEOPLE’S REPUBLIC OF CHINA, Mar. 4, 2004.
10. CRIMINAL LAW OF THE PEOPLE’S REPUBLIC OF CHINA, Aug, 29, 2015.
11. de Vries, A. L. C., Doreleijers, T. A. H., Steensma, T. D., & Cohen-Kettenis, Psychiatric comorbidity
in gender dysphoric adolescents. Journal of Child Psychology and Psychiatry (2011)
12. THE DIPLOMAT, China’s Complicated Approach to Transgender Rights,
https://thediplomat.com/2017/10/chinas-complicated-approach-to-transgender-rights/ (last
visited Feb 10, 2019).
13. Eli Coleman, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming
People, Principles of Gender-Specific Medicine 69–75 (2017).
14. Emilie Johnson et al., Attitudes towards ‘disorders of sex development’: nomenclature among affected
individuals, 13 Journal of Pediatric Urology (2017)
15. EMPLOYMENT PROMOTION LAW OF THE PEOPLE’S REPUBLIC OF CHINA, 2015.
16. Fenway Health, Glossary of Gender and Transgender Terms, (Jan 2010),
https://fenwayhealth.org/documents/the-fenway-institute/handouts/Handout_7-
C_Glossary_of_Gender_and_Transgender_Terms__fi.pdf.
17. Gabriel Dominguez, Juan Ju, Marginalized and stigmatized – China’s transgender sex workers, (Jan. 1,
2015), https://www.dw.com/en/marginalized-and-stigmatized-chinas-transgender-sex-
workers/a-18214489.
18. GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE’S REPUBLIC OF CHINA, 1986.

32
19. Georgiann Davis et al., DSD is a Perfectly Fine Term: Reasserting Medical Authority through a Shift in
Intersex Terminology, 12 Sociology of Diagnosis (Advances in Medical Sociology) 155-82 (2011).
20. GLOBAL TIMES, No Tolerance for Transgender Prejudice,
http://www.globaltimes.cn/content/676640.shtml (last visited Feb 10, 2019).
21. GLOBAL TIMES, Transgender people talk about changing sex and life in China,
http://www.globaltimes.cn/content/991992.shtml (last visited Feb 10, 2019).
22. THE GUARDIAN, Transgender Sex Workers Are China’s Most Marginalized People,
https://www.theguardian.com/world/2015/jan/16/transgender-sex-workers-china-most-
marginalised (last visited Feb 10, 2019).
23. Hayley Westcott, Transgender people face two-year wait for NHS appointment, BBC News Online,
January 30, 2018, https://www.bbc.com/news/uk-england-42774750 (last visited Feb 6, 2019).
24. Hua Jiang et al., Transgender patients need better protection in China, 384 The Lancet 2109–2110
(2014).
25. Hughes, I. A., Houk, C. P., Ahmed, S. F., Lee, P. A., & LWPES1/ESPE2 Consensus Group,
Consensus statement on management of intersex disorders, 91 Archives of Disease in Childhood, 554-563
(2006).
26. Hunter Gray, Negotiating Invisibility: Addressing LGBT Prejudice in china, Hon Kong and Thailand,
(2014)
,https://scholarworks.umass.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&http
sredir=1&article=1029&context=cie_capstones.
27. Human Rights Campaign, Glossary Terms, https://www.hrc.org/resources/glossary-of-terms (last
visited Feb. 10, 2019).
28. Joshua Lambrese, Suppression of Puberty in Transgender Children, 12 American Medical Association
Journal of Ethics 645–649 (2010).
29. Judith A. Berling, Confucianism, ASIA SOCIETY, https://asiasociety.org/education/confucianism.
30. LABOUR LAW OF THE PEOPLE’S REPUBLIC OF CHINA, July 5, 1994.
31. Lin Fraser & Gail Knudson, Past and Future Challenges Associated with Standards of Care for Gender
Transitioning Clients, 40 Psychiatric Clinics of North America 15–27 (2017).
32. Manya Koetse, Transsexual Chinese Woman Cannot Change Post-Surgery Gender What's on Weibo
(2016), https://www.whatsonweibo.com/transgender-woman-cannot-change-official-gender-
after-surgery/ (last visited Feb 10, 2019).
33. Medical students’ ability to care for lesbian, gay, bisexual, and transgendered patients, American College of
Obstetricians and Gynecologists’ Committee on Adolescent Health, Committee Opinion No.
685 (2017).
34. THE NEW YORK TIMES, Transgender Man was Unfairly Fired but Bias Not Proved, Chinese Court Says,
https://www.nytimes.com/2017/01/02/world/asia/china-transgender-
lawsuit.html?mcubz=1&_r=0 (last visited Feb 10, 2019).
35. Pi Jun, Transgender in China, 7 Journal of LGBT Youth 346, 352 (2010).
36. Puja Changoiwala, India: No Country for Transgender Women, SOUTH CHINA MORNING POST, (Jun.
8, 2018, 2:47 PM), https://www.scmp.com/week-asia/society/article/2154077/india-no-
country-transgender-women.
37. Rebeca Robles et al., Removing transgender identity from the classification of mental disorders: a Mexican field
study for ICD-11, 3 The Lancet Psychiatry 850–859 (2016).
38. REGULATIONS OF THE PEOPLE’S REPUBLIC OF CHINA ON HOUSEHOLD REGISTRATION, 1958.
39. Sam Winter, Cultural Considerations for the World Professional Association for Transgender
Health Standards of Care: The Asian Perspective, 11 International Journal of Transgenderism
19–41 (2009).

33
40. SINA NEWS, Man Died in a Rental House in Beijing after Completing a Sex Change Operation in Thailand,
http://news.sina.com.cn/s/2006-02-06/00188128730s.shtml (last visited Feb 10, 2019).
41. SINA NEWS, Transsexual Actress Slams Prejudice,
http://english.sina.com/life/p/2011/0921/398970.html (last visited Feb 10, 2019).
42. SOUTH CHINA MORNING POST, Who is Jin Xing, China’s Only Transgender Celebrity?,
https://www.scmp.com/magazines/style/people-events/article/2173609/who-jin-xing-chinas-
only-transgender-celebrity (last visited Feb 10, 2019).
43. Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, WPATH,
https://www.wpath.org/publications/soc (last visited Feb 6, 2019).
44. Timo O. Nieder & Bernhard Strauss, Transgender health care in Germany: Participatory approaches and
the development of a guideline, 27 International Review of Psychiatry 416–426 (2015)
45. Timothy Cavanaugh, Informed Consent in the Medical Care of Transgender and Gender-Nonconforming
Patients, 18 The AMA Journal of Ethics 1147–1155 (2016).
46. Timothy J Murphy, Should Mental Health Screening and Psychotherapy Be Required Prior to Body
Modification for Gender Expression?, 18 The AMA Journal of Ethics 1079–1085 (2016).
47. Transgender Healthcare Netherlands: Information and Links,
https://www.transgenderhealth.com/transgender-healthcare-netherlands-information-and-
links/ (last visited Feb 6, 2019).
48. UNDP & APTN, Legal Gender Recognition: A Multi-Country Legal and Policy Review in Asia (2017).
49. UNDP and China Women’s University, Legal Gender Recognition in China: A Legal and Policy Review
(2018).
50. UNDP, Being LGBTI in China – A National Survey on Social Attitudes towards Sexual Orientation,
Gender Identity and Gender Expression (2016).
51. UNDP, USAID, Being LGBT in Asia: China Country Report, 39 (2014). Available at:
http://www.undp.org/ content/undp/en/home/librarypage/hiv-aids/-being-lgbt-in-asia--
china-country-report.html.
52. VOX, Transgender activists in China Just Scored a Historic Victory,
https://www.vox.com/world/2017/7/27/16049820/china-transgender-discrimination-lawsuit-
mr-c (last visited Feb 10, 2019).
53. THE WORLD OF CHINESE, Crossing the Gender Lines: Transgenderism Might Just Be A Step Too Far For
China, http://www.theworldofchinese.com/2013/11/crossing-the-gender-lines/ (last visited
Feb 10, 2019).
54. WPATH: History of the Organization (2019), WPATH, https://www.wpath.org/about/history (last
visited Feb 6, 2019).
55. Zhang Xiaohui and Tong Huijie. Diagnosing Gender Identity Disorder: Perspectives from the DSM-4,
CCMD-3, ICD-10, 5 Journal of Neuroscience and Mental Health 376 (2006).
56. Zucker, K. J., Gender identity development and issues. Child and Adolescent Psychiatric Clinics of
North America, 13(3), 551-568 (2004).

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