To what extent does W v Registrar of Marriages enshrine transgender marriage rights in Hong Kong?

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​https://med.stanford.edu/news/all-news/2022/01/mental-health-hormone-treatment-transgender-people.html

Summary of W v Registrar of Marriages (2013) 16 HKCFAR 112Facts: The appellant, “W”, is a transgender woman (note: the case judgement written in 2013 uses the term “transsexual” but the accepted term used today is “transgender”) who had undergone gender confirmation surgery, and lives and presents as a woman. She wished to marry her male partner, but was denied by the Registrar of Marriages on the basis of not qualifying as a Woman under 1) the Marriage Ordinance (Cap.181) section 40(1) and 40(2), which provides that “Every marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage”  between “one man and one woman to the exclusion of all others” and  2) the Matrimonial Causes Ordinance (Cap.179), which provides in section 20(1)(d) that “a marriage not between a male and female shall be void”. 

W subsequently brought judicial review proceedings against the decision (ie. challenging its constitutionality as to whether it adheres to the Basic Law), and contended that she was a woman for the purposes of marriage.

Procedural history: W’s application was denied at the Court of First Instance and again at the Court of Appeal. The proceedings were then brought before the Court of Final Appeal (CFA), the highest court in Hong Kong. CFA judgements are binding on all lower courts.

Issues (ie. legal questions) before the CFA: The first question was “[w]hether on a true and proper construction of the Marriage Ordinance (Cap.181) (MO), the words “woman” and “female” in [sections] 21 and 40 of the MO include a post operative male to female transsexual?”

If the words “woman” and “female” in the above sections did include a “post operative male to female transsexual,” the court then had to decide whether sections 21 and 40 of the MO were unconstitutional. This was considered in regards to Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights (HKBOR)— which provide for the right to marry— as well as Article 14 of the HKBOR which provides for the right to privacy.

Ruling: The court held in favour of W for the following reasons on constitutionality. Firstly, “The Basic Law (and the [International Covenant on Civil and Political Rights] as given constitutional effect by the Hong Kong Bill of Rights and [Article] 39 of the Basic Law) are living instruments intended to meet changing needs and circumstances”. Secondly, in Hong Kong today, procreation is not regarded as an essential part of marriage. Thus, there was no reason to only consider biological sex for the purposes of marriage.

Furthermore, the court considered not only the biological, but also the psychological and social circumstances of W to determine whether someone like W was a “woman” entitled to marry a man. It would thus be too restrictive and unconstitutional to construe sections 20(1)(d) and 40 of the Marriage Ordinance to exclude transgender people like W by mere reason of biological sex and capacity to procreate. The court concluded that in light of her irreversible gender confirmation surgery and complete rejection of male sexual identity, denying W the right to marry a man would completely deny her the right to marry (as guaranteed under Article 37 of the Basic Law) because “there was no question of [W] enjoying in any meaningful sense the right by being able to marry a woman” either.

Finally, the public opinion in Hong Kong regarding whether individuals similar to W should be allowed to marry someone of the opposite gender was not relevant to the issue of constitutionality. Rejecting W’s application on the basis of public consensus would flout the principle of fundamental rights.
DiscussionWhile the ruling in W v Registrar of Marriages is undoubtedly positive progress in the broader recognition of transgender rights in Hong Kong, the ruling leaves gaps in enshrining the right of marriage for all transgender individuals. As a result, there is arguably still a long way to go.

Gender confirmation surgery is a personal choice, and not all transgender people opt to undergo the procedure.

The medical doctor who gave testimony for the CFA, Dr Ho, was cited in the judgement to have stated some reasons transgender people may not opt for gender confirmation surgery, such as the painful and irreversible nature of the surgery, fear of social stigma (such as jeopardising their careers) as a result of getting the surgery, uncertainty about the outcome of the surgery especially for male-to-female gender affirmation surgery which entails a more difficult and complex procedure, or having a milder case of gender dysphoria and experiencing less psychological discomfort than those with more severe cases of dysphoria.

However, under regulation 14 of the Registration of Persons Regulations (Cap.177A) and section 5 of the Hong Kong Special Administrative Region Passports Ordinance (Cap.539), the Director of Immigration only issues a replacement identity card and passport reflecting the gender of the transgender person after they have obtained a letter of proof from the Hospital Authority certifying that they have undergone gender affirmation surgery and satisfied the requisite “real life experience” as their gender under the monitoring of the Hospital Authority.

The silence of the judgement on the marriage status for transgender individuals who opt not to undergo gender confirmation surgery, coupled with the court’s strong emphasis on W having undergone gender confirmation surgery and treatments, acquiring of an identity card and passport that identified her as female, and undergoing the prerequisite “living period” and psychiatric evaluation thus leaves a worrying gap in the case law on protecting the marriage rights of transgender individuals who do not meet the aforementioned criterion. 

Neither does legislation serve to patch up the gap in enshrining such rights. As discussed by the Equal Opportunities Commission in May 2014, the Marriage (Amendment) Bill 2014 that was introduced subsequent to W v Registrar of Marriages specifically requires that transgender people undergo gender confirmation surgery to have their gender recognised by law. Additionally, it fails to provide for the process for transgender people to legally change their gender, nor the rights of transgender people once they have their gender legally recognised.

References:
Equal Opportunities Commission, Questions and Answers on the Rights of Transexual People in Hong Kong, May 2014, https://www.eoc.org.hk/eoc/upload/20145271057166461.pdf 
W v Registrar of Marriages (2013) 16 HKCFAR 112