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Author: Karen Lee Man Yee
Summarised by: Ryan Choy (Associate)
The case of W v Registrar of Marriages about the marriage rights of a male-to-female post-operative transexual sparked the debate concerning the legal meanings of "man" and "woman" in Hong Kong. Karen Lee in this article tackles the debate with consideration of the international recognition of transexuals marriage rights, and explores the relevant implication on same-sex marriage rights and even the definition of marriage itself. Lee concludes her article by arguing that the concept of sexuality is fluid and not binary, and defining it is not easy. Hence, it is necessary to have discussions on the definition of marriage and implications the W case brings, no matter the results.
W v Registrar of Marriages
The case W v Registrar of Marriages ("the W case") held in the Court of First Instance that a post-operative male-to-female transsexual was not a woman, hence not eligible to marry his boyfriend. The judgment was not only disappointing for LGBT+ rights advocates, but also confusing for traditionalists as the judgment implied that post-operative transsexual gays and lesbians may marry their partner, implicitly recognising same-sex marriage rights. In light of this confusion, Lee explores the legal grounds of the judgment.
From Corbett to Goodwin
The issue in the case of W is whether W could be regarded as a woman for the purpose of entering into a heterosexual marriage. In making its decision, the judgment at the Court of First Instance relied heavily on the half-century old case Corbett v Corbett. The Corbett case held that the "capacity for natural heterosexual intercourse" between a man and woman is the essential character of marriage, hence a marriage between a post-operative male-to-female and a man is void. With this half-century old judgment, the Hong Kong Court held against W.
However, the world has changed rapidly since Corbett v Corbett. Multiple jurisdictions have allowed post-operative transsexuals to marry in their new gender, including the EU, Canada, Australia and a few states in the United States. Especially in the case of Goodwin v UK, the European Court of Human Rights held that the UK Government had violated the transsexual claimant’s right to marry in her new gender. These jurisdictions better represent the reality in the world recognition of marriage rights of transsexuals. Nonetheless, such changes are not the end of the issue. This change will certainly lead to multiple possible implications concerning marriage rights and the concept of marriage.
The Fluidity of Sexuality
While the judgment in the European Court of Human Rights is clear, its implications are not. The judgment sparks more questions, including what if a personal having received hormonal treatment was medically unfit to undergo a major surgery? Or more fundamentally, should the successful completion of some sort of surgical intervention be an essential prerequisite to the recognition of gender assignment? These questions are essential for considering the issues in W, and in considering these questions, attention must be drawn to sexuality itself.
Lee therefore turns to examining the concept of sexuality and its legal implications. The traditional understanding, especially the one in Corbett v Corbett, assumes that there must be a "discoverable, true sex" for every single person. However, the definition becomes more complex as one examines the reality.
In examining the transgender community, the wide spectrum of sexuality can be observed and support Lee’s claim that sexuality is a fluid concept. In this community, there are non-transexual people who do not conform to their biological sex, for example cross-dressers generally identifies themselves as heterosexual, but nonetheless behaves differently from their biological sex. There are also individuals that live in ways to reject the dichotomy of gender in society. These individuals reflect the fact that there are numerous possible genders and social identities, that the definitions of "gender" and “sexuality” are not as black and white as the Court assumes it to be.
Under the fluidity of sexuality, it becomes evident that it is impossible to define marriage as a construct that is only between male and female, for it assumes a binary understanding of sex. Lee proposes the following example. If a biological female falls in love with a female-to-male post-operative transsexual who now has a male sexual identity, with some male bodily features such as chest muscles, but retains a biological vagina, should they be allowed to marry each other? This example once again highlights the fluidity of sexuality, that the concept of male and female is a continuum instead of a binary distinction. If this couple is allowed to marry, then the meaning of marriage, man and woman are necessarily fluid and socially constructed, just like how their physical appearances cannot define their sex. The definition of gender has to be in a continuum instead of a dichotomy. Male, transsexuals and female therefor necessarily exist on the same continuous spectrum, and allowing transsexuals to marry therefore logically leads to same-sex marriage or even removing the sexual requirement in marriage.
On Social Consensus
Indeed, in W, the Court followed Corbett and adopted a purely biological view on sex determination. However, this does not stop the question of whether the law should be changed. The Judge in the case of W commented that it should be informed by the societal consensus in making its decision, and as there is no societal consensus in Hong Kong on regarding transsexuals as their post-operative sex, the Court held against W. However, the Judge also revealed a dilemma—protection of fundamental rights should not be subject to majority opinion either. Along with the problem that the judgment against W implies recognising marriage right of homosexual transgenders, these problems complicates the case.
Lee’s article therefore reveals the complication in the matter of marriage among transsexuals and homosexuals. Even though the W case focuses on regarding W as a woman for the purpose of marriage only, the implication it entails on same-sex marriage, the conception of sexuality and definition of marriage are so complicated. Hence, Lee argues that discussions should begin as soon as possible in Hong Kong regarding these matters.
Lee’s argument is strong in pointing out the difficult problem faced in the issue of transgender marriage rights. Her argument that gender is a continuum poses a great challenge against the traditional understanding of marriage, and indeed requires more discussion in Hong Kong. However, gender being in a continuum does not necessarily imply that it is indivisible and impossible for the Court to draw a line within the continuum, at the very least, it is possible to distinguish male and female, the two extremes in the continuum of sexuality. Lee’s claim that transgender marriage right implies same-sex marriage right therefore might require a stronger support.