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 Continue reading “Protecting Transgender Rights in Hong Kong: Equal Marriage Rights”