In December of last year, the Ministry of Health and Welfare (MOHW) in Taiwan recommended that transgender individuals wishing to change their genders should not have to go through psychiatric evaluations nor be subjected to surgery removing their sex organs.

Though this was merely the MOHW’s recommendations after a consultation meeting with various stakeholders, it was widely reported erroneously in Taiwan and abroad as an official change in the regulations.

The fact that it came from just the MOHW should have been clear that this was not binding, as a change in regulation would also require that the approval of the Ministry of Interior (MOI), the governmental department in charge of household registrations and identification cards.

This past week, the Ministry of Interior decided to not adopt the recommendation from MOHW. In a press release dated 11 December, the MOI asserted that there is room for discussion on this issue because of the human rights of the transgender individuals, but it also warned that social order and harmony must be maintained.

It went on to state that the feelings of non-transgender people who share public accommodations such as pools, restrooms, bath houses, and gyms with transgender people must also be considered.

Therefore, as ordered by the secretary-general of the Executive Yuan, the cabinet in Taiwan’s government system, there will be further consultations involving both the MOHW and MOI on this issue before a decision is made, and the status quo requiring two psychiatric evaluations and the removal of sex organs for a legal gender change is maintained in the interim.

Transgender activists, including the Intersex, Transgender and Transsexual People Care Association, are understandably upset that a policy recommendation that would have been one of the most progressive in the world in terms of gender transitioning (most jurisdictions that do not mandate surgery still require psychiatric evaluations) is not being adopted.

Furthermore, the justification used by the MOI for its lack of action – the well-being and comfort of non-transgender people – gives the impression that the basic human rights of transgender people are dependent on the approval of non-transgender people.

This rhetoric of balancing human rights and the ‘will of the people’ is typical of cabinet decisions under President Ma Ying-jeou.

President Ma has justified the continued use of capital punishment and not legalizing same-sex marriage with public opinions polls that purport to show the people backing his positions.

Will public opinion polls also be used to determine the human rights of transgender people? If that turns out to be the case, it would be a sad day for human rights in Taiwan.