This morning Hong Kong took a giant leap forward in protecting transgender rights in a judgment of the Court of Final Appeal which will allow a trans* woman to marry her partner. In a judgment that some Irish politicians could do well to take note of the Court concluded that in multicultural jurisdiction such as Hong Kong, the nature of marriage as a social institution had undergone many alterations in that the importance of procreation as an essential constituent “has much diminished”. In a 4-1 running, the Court held that it is “contrary to principle to focus merely on biological features fixed at the time of birth and regarded as immutable” and held in favour of the Appellant.
The appellant, W, is a post-operative transsexual woman who wishes to marry her male partner. However the Registrar of Marriages (Registrar) declined to confirm that the appellant was permitted to marry her partner. The appellant commenced judicial review proceedings against the Registrar on the ground that the Registrar misinterpreted ss 21 and 40 of the Marriage Ordinance (Cap 181). This raised the issue of construction of whether a post-operative male-to-female transsexual was a woman or female for the purposes of the Marriage Ordinance. The same issue also arose in respect of s 20(1)(d) of the Matrimonial Causes Ordinance (Cap 179). The appellant sought an order quashing the Registrar’s decision and a declaration that the decision was unlawful on the basis that the Registrar misdirected himself in law by misinterpreting ss 21 and 40 of the Marriage Ordinance. The appellant’s alternative case, in the event it was held that the Registrar had not misinterpreted the statutory provisions in question, was that ss 21 and 40 of the Marriage Ordinance, in failing to recognise her as a woman or female, were unconstitutional in that they were inconsistent with Article 37 of the Basic Law and/or Articles 14 and 19(2) of the Hong Kong Bill of Rights and/or Articles 17 and 23(2) of the International Covenant on Civil and Political Rights. These constitutional provisions concerned the right to marry and the right to privacy. On that basis, the appellant sought declaratory relief that ss 21 and 40 of the Marriage Ordinance were unconstitutional insofar as they did not recognise a post-operative male-to-female transsexual as a woman or female.
Cheung J  6 HKC 359 dismissed the case at first instance and the Appellant also lost her appeal in front of the Court of Appeal in November 2011  1 HKC 88. One issue that was intentionally not raised by the appellant in her appeal was the question of the legality of same sex marriages. There was no contest that, in Hong Kong, marriage was heterosexual and she sought to marry her male partner as a transsexual woman in her post-operative gender. Nor was there any challenge by the appellant to the fact that she was correctly registered at birth as a male. The question for the Court was therefore whether the Registrar had misconstrued the Ordinance in coming to his conclusion precluding the appellant from marrying her partner. And if not, whether the Ordinance so construed is compatible with the right to marry guaranteed by the Basic Law and the Bill of Rights or with the right to privacy guaranteed by the Bill of Rights.
While Sex Reassignment Surgery (SRS) is publicly funded in Hong Kong and a person can be issued with a replacement identity card and passport reflecting his or her gender, the practice has been to refuse to alter the sex recorded in birth certificates on the basis that the document states historical fact which cannot be altered on the basis of a surgical sex reassignment. And, as occurred in the present case, a post-operative transsexual person was regarded as ineligible to marry someone of the gender opposite to his or her acquired gender.
The appellant placed reliance on Thorpe LJ’s strong dissenting judgment in Bellinger in the Court of Appeal where he noted (at §128) that the concept of marriage has changed since the time of Lord Penzance’s definition:
… We live in a multi-racial, multi-faith society. The intervening 130 years have seen huge social and scientific changes. Adults live longer, infant mortality has been largely conquered, effective contraception is available to men and women as is sterilisation for men and women within marriage. Illegitimacy with its stigma has been legislated away: gone is any social condemnation of cohabitation in advance of or in place of marriage. Then marriage was terminated by death: for the vast majority of the population divorce was not an option. For those within whose reach it lay, it carried a considerable social stigma that did not evaporate until relatively recent times. Now more marriages are terminated by divorce than death. … Marriage has become a state into which and from which people choose to enter and exit. Thus I would now redefine marriage as a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligations.
In its judgment, on addressing the question whether a post-operative transsexual like the Appellant is a woman so as to be entitled to marry a man, the Court held that it is contrary to principle to focus merely on biological features fixed at the time of birth and regarded as immutable. The Court found that it 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 SRS has occurred. Article 37 of the Basic Law and Article 19(2) of the Bill of Rights 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 stated that “whether a consensus regarding a transsexual’s right to marry exists among the people of Hong Kong is not a relevant consideration”, because reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is “inimical in principle to fundamental rights”. In a co-written judgment by Chief Justice Ma Tao-li and Ribeiro PJ. the Court stated that “We think it would be quite wrong to exclude such a transsexual person from the right to marry in her acquired gender by characterising her as a pseudo-type of woman”. As such, the Court held that the provisions of the Matrimonial Causes Ordinance and Marriage Ordinance are unconstitutional and found it unnecessary to consider whether W’s right to privacy under Article 14 of the Bill of Rights
The Court recognised that legislative intervention would be highly beneficial in various respects and that it would be preferable for the legislature to introduce legislation similar to the United Kingdom’s Gender Recognition Act 2004. This judgment challenges the social meaning and construction of gender in Hong Kong but it must be noted that a disproportionate section of the judgment does focus on genitalia and gender reassignment surgery. However the Court has left open the question whether transsexual persons who have undergone less extensive treatment than SRS might also qualify. For the moment the Court has proposed to suspend the operation of the orders for 12 months from today to enable consideration to be given to possible legislation.