Hong Kong’s LGBT movement made a landmark victory today. The Court of Final Appeal ruled that the definition of sex in Hong Kong’s marriage laws was in contravention of the freedom of marriage enshrined under Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights Ordinance. Miss W, a transsexual and called by the Court as “a post-operative male-to-female transsexual person”, therefore has the right to marry with her male partner.
Miss W sued the Registrar of Marriage and fought for her right to marry a biological man all the way from High Court to the Court of Final Appeal. A year ago, the Registrar refused her application to get married with her fiancé on the ground that her gender was male as shown in her birth certificate. Even though her Hong Kong identity card showed that she was a woman and she had undergone successful sex change surgical operation, the Registrar refuses to take it as a fact of her gender.
Miss W is transgendered. She was born with chromosomes and a sexual organ of a man but her soul and mind are of a woman. Like all transgendered persons, she disliked her sexual organ and she eventually managed to get it off by sex reassignment surgery by the Hospital Authority in Hong Kong. She and her male partner wished to get married but the Regisrar refused to celebrate their marriage, deciding that she did not qualify as “a woman” under the Marriage Ordinance and the Matrimonial Causes Ordinance. Today, the Court of Final Appeal said that Miss W could marry with a biological man.
Dr. Ng Man-lun, a Hong Kong leading advocate on LGBT’s rights and member of The Hong Kong Sex Education Association was asked to comment on Miss W’s case. “I am happy but not too happy with Miss W’s winning case because Hong Kong is quite behind already. China has accepted transsexual marriages for years and they can adopt children too. I read on the web many negative responses to this court judgement, still a lot of ignorance and prejudice. We need to educate Hong Kong people more on this topic. Otherwise the transsexuals will still have a lot to suffer. I hope the judgement gives impetus to the Hospital Authority to improve its medical services for the transsexuals too,” said Dr. Ng.
The Court of Final Appeal ruled by a 4:1 majority favouring Miss W, with Mr Justice Patrick Chan PJ dissenting. The Court held that in enacting the Matrimonial Causes Ordinance, the legislative intent was to adopt an English statute which endorsed the decision of the English court in Corbett v Corbett,holding that procreative intercourse was an essential constituent of a marriage at common law, and therefore that biological factors were the only appropriate criteria for assessing the sex of an individual for the purposes of marriage. The Marriage Ordinance covered the same ground and was to be similarly interpreted. The Registrar was therefore correct in construing the relevant sections as excluding the Miss W as a woman for the purposes of marriage.
Article 37 of the Basic Law and Article 19(2) of HKBOR protect the right to marry. While the institution of marriage is necessarily subject to legal regulation, such legal rules must not be inconsistent with and operate so as to impair the very essence of that right. The Court noted that in present-day multi-cultural Hong Kong, the nature of marriage as a social institution had undergone far-reaching changes and the importance of procreation as an essential constituent has much diminished. In addressing the question whether a post-operative transsexual like the Miss W qualifies as “a woman” so as to be entitled to marry a man, it is contrary to principle to focus merely on biological features fixed at the time of birth and regarded as immutable. The Court should consider all circumstances relevant to assessing a person’s sexual identity at the time of the proposed marriage, including biological, psychological and social elements and whether any sex reassignment surgery has occurred.
In restricting the criteria for ascertaining a person’s gender to merely biological factors, the Court held that the relevant provisions in the Matrimonial Causes Ordinance and Marriage Ordinance are inconsistent with and fail to give proper effect to the constitutional right to marry. In denying a post-operative transsexual woman like W the right to marry a man, those provisions realistically preclude her from marrying at all. They therefore impair the very essence of W’s right to marry. As such, the Court held that the provisions are unconstitutional. It is unnecessary to consider whether W’s right to privacy under Article 14 of Hong Kong Bill of Rights Ordinance may support her constitutional right to marry.
In summary, the Court of Final Appeal made two major points:
- the laws must be read and given effect so as to include within the meaning of the words “woman” and “female” a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority to have changed as a result of sex reassignment surgery; and
- Miss W is in law entitled to be included as “a woman” under relevant provisions of the laws and is eligible to marry a man.
The Court made further remarks that whilst the Courts could formulate a test and decide questions regarding the implications of recognising an individual’s acquired gender for marriage purposes, it would be distinctly preferable for the legislature to introduce legislation similar to the United Kingdom’s Gender Recognition Act 2004 (“GRA”). The GRA sets up machinery for an expert panel to vet gender recognition claims on a case-by-case basis, and grants gender recognition certificates which recognise successful applicants in his/her new sex. It also provides a practical model for possible approaches to deal with other legal ramifications of recognising a person’s acquired gender.
Finally, the Court recognised that whether new legislations should be enacted is entirely a matter for the legislature to decide. It proposed to suspend the operation of the orders to be made for the period of 12 months from the date of judgment to enable consideration to be given to possible legislation. The Miss W will be entitled to the declared reliefs at the end of that period whether or not new legislation is in place.
Albeit Miss W’s victory, Hong Kong remains to be one of the places in the world which denies same-sex legal marriage. This is perhaps another major battle that Hong Kong’s LGBT movement leaders have to fight for in the forthcoming days.