Queer Temporalities and Transgender Rights: A Hong Kong Case Study

AuthorMarco Wan
Date01 August 2021
DOI10.1177/0964663920948950
Published date01 August 2021
Subject MatterArticles
Article
Queer Temporalities
and Transgender Rights:
A Hong Kong Case Study
Marco Wan
University of Hong Kong, Hong Kong
Abstract
This article investigates how theoretical explorations of queer time can shed light on our
understanding of law. Taking transgender rights in Hong Kong as a case study, it argues that
legal judgments can entrench normative temporal structures and impose tropes such as
linearity, futurity, and finality onto the life scripts of trans subjects. Through close readings of
the Court of Final Appeal decision in W v. Registrar of Marriages and the recent judicial review
challenges that have emerged in its aftermath, it demonstrates how the cases exclude
transqueer individuals who do not fit into those temporal trajectories from the realm of rights
protection. It also suggests ways of thinking about the temporalities of transgender issues
differently. The analysis here stages an encounter between law and literary/cultural theory,
and provides a new perspective on the current state of transgender rights in Hong Kong.
Keywords
Hong Kong, law and time, legal narratives, queer temporalities, rights, sex reassignment
surgery, transgender
In recent years, a strand of theoretical inquiry on queer time has emerged as an important
paradigm in the analysis of queer identities within literary and cultural studies (Dinshaw
et al., 2007; Edelman, 2004; Freeman, 2010; Halberstam, 2005; Stockton, 2009). Despite
their seeming heterogeneity, these texts all take their cue from ongoing discussions of
what constitutes the ‘human’ in the cultura l imaginary, and seek to interrogate ‘the
normative narratives of time that form the base of nearly every definition of the human
in almost all of our modes of understanding’ (Halberstam, 2005: 152). In other words,
Corresponding author:
Marco Wan, Faculty of Law, University of Hong Kong, 10th Floor, Cheng Yu Tung Building, Pokfulam, Hong
Kong.
Email: mwan@hku.hk
Social & Legal Studies
2021, Vol. 30(4) 563–580
ªThe Author(s) 2020
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DOI: 10.1177/0964663920948950
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they foreground how humanity is molded by the ways in which a subject’s gender
identity fits into a collective temporal schema, or conforms to a standard, linear progres-
sion from the past, through the present, to the future. Contemporaneously, a ‘temporal
turn’ can be said to be underway in legal scholarship (Grabham, 2016; Lazar, 2019;
Lzquierdo, 2015; McNeilly, 2019; Manderson, 2019; Ranchord´as and Roznai, 2020), yet
there has been surprisingly little dialogue between legal scholars of temporality and
literary-cultural theorists of queer time. In this article, I take recent cases on transgender
rights in Hong Kong as a case study to demonstrate how ideas about queer temporalities
can shed light on our understanding of law.
It has become commonplace to say that the time of transgender rights has come in
Hong Kong. In the 2013 case of W v. Registrar of Marriages (2013) 16 HKCFAR 112
(hereafter W), the highest court held in favor of a male-to-female transsexual who had
undergone sex reassignment surgery and who was arguing for the right to marry in her
acquired gender. As I will discuss below, a number of judicial review challenges to
existing discriminatory laws and policies have emerged in the wake of the Court of Final
Appeal’s Wdecision. One transgender man observed that, with the Wvictory, Hong
Kong is finally moving away from the ‘long-held belief [ ...] that transgenders were
“unnatural” or “freaks”’ (Scott, 2013). While, ‘in the past’, there were social reservations
about recognizing trans existence, the decision seemed to usher in a new era (Scott,
2013). Trans activism also gained traction, with a growing number of campaigners and
their allies coming forward to claim a place for transgender individuals in civic society
(Evans, 2013; Winter, 2013). In 2018, transphobia was chosen as the theme of the Hong
Kong chapter of IDAHOT, or the International Day Against Homophobia, Transphobia,
and Biphobia (Mirandilla, 2018). In the same year, Jun Li’s film Tracey, which cast a
prominent local actor in the lead role as a closeted transgender person coming to terms
with their identity, became the first local mainstream movie about transgenderism to
appear in Hong Kong film history. When asked why he decided to focus on the trans
community, Li replied that ‘it was about time’ such a film was made (Tokyo Interna-
tional Film Festival Event Report, 2018).
This article places the complex interactions between law, transgender identity, and
queer temporalities at the forefront of analysis to examine what it might mean to say that
the time of an idea has come. It stages an encounter between law and literary/cultural
theory, and provides a new perspective on the current state of trans rights in Hong Kong.
I argue that despite apparent advancements in legal protections, the key cases are struc-
tured by normative narratives of time which they in turn impose on trans subjects.
In other words, I show how ideas about linearity, progress and futurity underpin legal
reasoning, and the impact such ideas have on trans lives. In Part I, I explain what I mean
by queer temporalities, and demonstrate how the foundational Wcase entrenches and
perpetuates hegemonic temporal trajectories in the legal and cultural construction of
trans identities. In Part II, I amplify the voic es of those people who do not readily
conform to law’s temporal narratives, and who are therefore left out of the current rights
regime. In Parts III and IV, I provide close readings of the city’s latest trans rights cases,
Navarro Luigi Recasa v. The Commissioner of Correction Services and the Commis-
sioner of Police [2018] HKCFI 1815 (hereafter Navarro) and Tse Henry Edward v.
Commissioner of Registration [2019] HKCFI 295 (hereafter Tse) respectively, to
564 Social & Legal Studies 30(4)

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