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Author: Athena Liu
Summarised by: Rachel Mo (Associate)
The author seeks to argue that the Court of Appeal’s decision in W v Registrar of Marriages in dismissing a postoperative male-to-female transsexual person’s constitutional claim based on the right to privacy and right to marry is a poor outcome for the law and society. It is envisaged that the Court of Final Appeal (“CFA”) would discharge its constitutional duty and consider going beyond as to engage Goodwin v United Kingdom (2002) 35 EHRR 18 as part of the Hong Kong’s human rights jurisprudence. This would imply the HKSAR government to safeguard the right of marriage to minority transgenders.
The Court considered the 1970 holding in Corbett v. Corbett that, for the purpose of marriage, sex was determined by biological criteria and was fixed at birth. This had the effect of excluding post-operative transsexuals (i.e. W) from marrying under British law.
Human Rights Provisions relevant to the constitutional issue on the right to privacy and the right to marry
The question for the Court of Appeal (“CA”) is whether the Corbett test is inconsistent with Hong Kong's constitutional protection of the right to privacy (i.e. Article 14, Hong Kong Bill of Rights) and the right to marry (Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights).
Jurisprudence of the European Court of Human Rights (ECtHR) in Sheffield and Horsham v United Kingdom (Sheffield) and Goodwin v UK (Goodwin)
Both cases concerned the European Convention which protects the right to respect for
private life (Article 8) and the right to marry (Article 12).
The author further explains (i) why Goodwin unanimously decided not to follow Sheffield and (ii) how, with Goodwin's landmark development, the rights of a post-operative transsexual person to private life and to marry in their acquired sex eventually prevailed. Goodwin's interpretation of Article 8 as protecting human dignity, human freedom and personal autonomy, was fundamental to its conclusion that the United Kingdom had violated both Article 8 and Article 12.
W contended that the right to marry is a strong one and ‘is intertwined with a person's dignity and well-being’. Her claim is same as those in Sheffield and Goodwin. It is argued that it is important for CFA to note that before analysing the right to marry, the right to privacy is fully canvassed so that its impact upon the right of a post-operative transsexual person to marry in their acquired sex may be fully appreciated.
In both cases, the claimants alleged that the failure of the UK to recognize a post-operative transsexual person's new gender amounted to a violation of Art 8's positive obligation. ECtHR needs to strike a fair balance between the applicants' rights and the public interest. The outcome of the assessment differs in the two cases.
In Goodwin, through balancing the right of “transsexuals to personal development and to physical and moral security” against “difficulties posed” for the State and “important repercussions which any major change in the system will inevitably have”. The government have to show there exists sufficient public interests against gender recognition to justify their stance.
Goodwin found that no concrete or substantial hardship or detriment to the public interest had been demonstrated as likely to flow from any change to the status of transsexuals. Sheffield took the view that transsexualism raises complex social issues, and the claimant was not suffering sufficiently serious as to override the state’s margin of appreciation. As a result, the UK had no positive obligation to modify its system of birth registration.
Court of Appeal's Treatment of Ms W's Claim
The author focuses on three aspects of the Court of Appeal's judgment under the heading “the
1. the way that Ms W's claim was effectively recast,
2. the summary of Goodwin which suggests a limited understanding of the case, and
3. the fact that the Court of Appeal appeared to have been more influenced by the discarded decision of Sheffield than by Goodwin.
Even though Ms W's claim is factually almost identical with that in Goodwin, her case was dealt with differently. Goodwin reached its decision based on the importance of the right to respect for private life (mandating gender recognition) before giving its assessment on the right to marry. In so doing, the conclusion on gender recognition was able to positively influence the outcome of Ms. Goodwin's right to marry.
By focusing predominantly on the right to marry, omitting reference to personal autonomy underlying the interpretation of the right to privacy, and reducing the right to marry to one of definition, W’s claim was rejected. The CA thus failed to engage in a complete assessment of whether denying Ms. W the ability to marry her male partner impeded her right to marry, nor whether such a restriction was rational, necessary and proportionate.
It is also acknowledged by the author that several significant features in Goodwin were not accurately refereed to, leading to the dismissal of W’s claim. The CA failed to take into account the crucial passages which addressed the fundamental relevance of personal autonomy. Two important factors including the 1) concept of personal autonomy and 2) a continuing international trend towards legal recognition of the new gender identity of post-operative transsexual persons were not given sufficient weight.
The CA never explicitly stated that it preferred the reasoning in Sheffield, yet judging from the re-casting of Ms. W's claim as well as the limited understanding of Goodwin, it would seem that the CA was influenced by Sheffield more than Goodwin. The Court did not follow Goodwin's acceptance of the importance of a continuing “international trend” in favour of gender recognition. Instead, it followed the discarded search for “consensus” in Sheffield.
“Consensus” is less flexible to trend, where the sense of ‘majority’ is required and the CA opined that the degree of changing societal attitudes internationally falls short of the degree to constitute the reach of consensus.
With CA preferring Sheffield, the author expressed regrets on the Court’s dismissal of W’s constitutional claim with the lack of justification of the reasons for framing W’s claim differently, applying Goodwin in such a limited way and why the discarded Sheffield decision is preferred. Regarding ‘consensus’, though it may be commonly regarded as no societal consensus in Hong Kong on post-operative transsexual person's right to marry, Andrew Cheng J’s statement in the Court of First Instance decision in W v Registrar of Marriages may be conducive to our understanding where he stated that fundamental rights are an exception to the democratic principle of majority rule.
In addition, the author argued that logical flaw exists in Respondents’ case. Even though there exists no societal consensus, the government publicly fund sex reassignment surgery and allow change of ID cards. However, from W’s case, the government adopt the same reasoning (i.e. apparent lack of societal consensus) to defend its non-acceptance of the consequence of SRS. This illustrates the poor reality as even if W shows her ID card to the Registrar of Marriages, she is only entitled to marry a female.
The author opined that the first question to be addressed is the question of gender identity of a person before the question of the sex of a person for the purpose of marriage can even arise. The lack of understanding of Goodwin and the underlying issue that gender identity concerns any person irrespective of his or her relationships to other people should be acknowledged as to generate a desirable outcome for the minority.
The author has made coherent arguments in considering the CA judgement as not conducive towards the development of equal rights. The court is reluctant to allow flexibility in its reasoning and it is suggested that a thorough understanding towards gender identity would be beneficial to Hong Kong in jumping on the bandwagon of international communities under the current legal climate.