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Summarised by Zhong Lin Yue, Roselyn (Associate)
W was born male and subsequently diagnosed with gender dysphoria. After having successfully undergone male-to-female “sex change” operations, she was issued with a new identity card and a new passport stating her new sex as female. W’s request to marry her boyfriend was rejected by the Registrar of Marriages on the basis that W, recorded as male on her birth certificate, did not qualify as a woman under s.20(1)(d) of the Marriage Ordinance (Cap 181) as well as the Matrimonial Causes Ordinance (Cap 179) , and same sex marriage is not allowed in Hong Kong. W then brought judicial review proceedings to challenge the decision of the Registrar.
1) Whether post-operative male-to-female transsexual can be construed as a “woman” to be eligible for marriage as provided in the Marriage Ordinance and the Matrimonial Causes Ordinance?
2) Whether the Marriage Ordinance and the Matrimonial Causes Ordinance, as construed in issue 1, are unconstitutional for violating the fundamental right to marry given by Art 37 of the Basic Law and Art 19(2) of the Hong Kong Bill of Rights and/or for violating the right to privacy under art 14 of the Hong Kong Bill of Rights?
Holdings and rationale
The majority allowed the appeal of W:
1) The statutory intent of both s 20(1)(d) of the Matrimonial Causes Ordinance and s 40 of the Marriage Ordinance is to endorse the criteria in Corbett v Corbett, where procreative heterosexual intercourse is regarded as the essential determinant of marriage. Therefore, when it comes to the issue of marriage, the assessment of one’s sexual identity depends on the biological conditions of the individual at birth. A transsexual in W’s position cannot be recognized as a “woman” for the purpose of marriage under the Ordinances.
2) The Basic Law and the Hong Kong Bill of Rights were living instruments that could accommodate the development of the society with changing needs and circumstances. The present-day social conditions in the culturally-diverse Hong Kong are very different from that in the time of Corbett, so the premise that procreation is essential to marriage is not justified to restrict the definition of “woman” to biological criteria fixed at birth, which fails to take into account the medical advances and changed societal attitudes towards transsexualism. In determining whether a transsexual person is in law entitled to marry, the court should instead consider all the relevant circumstances, including biological, psychological, and social factors, to judge the person’s present sexual identity.
3) Because of the irreversible surgery which has removed the crucial male features of W and her innate rejection of male identity, it is impossible for W to marry a woman. The relevant provisions in the Matrimonial Causes Ordinance and the Marriage Ordinance would then have the effect of depriving W of her constitutional right to marry as provided in the Basic Law and the Hong Kong Bill of Rights. Therefore, the statutory provisions are unconstitutional.
Chan PJ dissenting:
1) There was no evidence that in Hong Kong, the words “man” and “woman” for the purposes of marriage have gained any new contemporary meanings which were different from the common understandings that they referred to only biological man and woman.
2) Marriage also conferred legal status on the children and relatives of the married couple, so marriage cannot be entirely separated from procreation.
3) There must be strong and compelling evidence for the court to depart from the traditional position of law and to give new meanings as required by the circumstances to constitutional provisions, especially for the marriage institution which is based on societal attitudes of the community. However, there was insufficient evidence of changing circumstances to justify such an act of the court to expand the interpretation of Art 37 of the Basic Law to include marriages of transsexual persons.
This case can be regarded as a major progress in the pursuit of obtaining equal rights for the minority in society, in particular the LGBT group. By confirming W’s right to marry a man, the CFA has arguably set a beginning for prospective developments in this area of law. However, as acknowledged by the CFA, the answer to the question of whether and to what extent post-operative transsexuals may qualify for marriage is still uncertain due to the difficulty and possible implications of line-drawing. It is preferable for the legislature to put forth a more well-developed and comprehensive legal mechanism on this topic, taking inspiration from the counterpart in United Kingdom: the Gender Recognition Act 2004 which discusses in details the legal rights of transsexual individuals in different aspects of life.