III. Legal Framework
The State has the primary responsibility to combat all rights violations against people
living within its borders, including transgender individuals. It is therefore the duty of
the State to enact good laws (eg anti-discrimination laws) and remove bad laws (eg
criminalization of marginalized groups) to meet their obligations under international
human rights law. As Non-State discrimination is also a significant problem for
transgender individuals, it is even more imperative that the State takes firm action to
adequately protect and promote transgender rights. The State’s failure to do so is not
only a derogation of their responsibility it can also be viewed as justification by private
citizens and even State actors to continue abuse and discrimination, unless properly
checked.
Legal Recognition in China
China acknowledges the right of individuals to undergo gender reassignment surgery,220
but has never enacted formal laws to protect the rights of transgender people. Instead,
there are only some departmental regulations and memos issued by certain ministries,
commissions and local governments on specific cases.221
Sex reassignment surgery (SRS)
Sex reassignment surgery (SRS) is not just one surgical procedure but a complex
process normally involving several procedures. For persons diagnosed with
transsexualism or profound GID [gender identity disorder], SRS has proven to be an
effective treatment, but is not necessarily a solution or desired outcome for all.
SRS and other gender affirming health services, including horomone therapy, are
legal in China. However, in the 20 years from when the first case of SRS was publicly
reported in 1990222 until the tabling of the first management standards on SRS in 2009,
China did not enact any laws or regulations applying to SRS. The growing demand
for gender reassignment was not matched by hospital capacity, with many lacking
the necessary expertise or equipment to perform SRS. Previously, people within the
220 “Sichuan: Men changing to female documents following surgery alarms the Ministry of Public Security.” [四川：手术之后男变女换证惊动公安
部]. Hebei Daily, May 19, 2011. http://www.aibai.com/infoview.php?id=473 (accessed October 20, 2014).
221 Lü Qunrong. “Recommendations for protective legislation for the civil rights of transsexuals.” [变性人的民事权益保护立法建议] Henan Social
Sciences, Vol. 18, No. 3 (May 2010): 202-204.
222 Zuo Chen. “The 20-year road of legalizing gender reassignment surgery.” [变性手术20年合法路]. Law and Life Magazine, August 28, 2009. http://
news.sina.com.cn/c/sd/2009-08-28/153618532895.shtml (accessed October 20, 2014).
52