On 16th July, the Hong Kong Court of Final Appeal in W v. The Registrar of Marriages made a declaration that the words “woman” and “female” in the Matrimonial Ordinance must be read and given effect so as to include a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority (para 11). Such declaration serves as a safeguard of the right to marry enshrined in Article 37 of the Hong Kong Basic Law (the mini-constitution of the region) and Article 19(2) of the Hong Kong Bill of Rights (an equivalence to Article 23(2) of the International Covenant on Civil and Political Rights).
The triumph of the appellant Miss W did not come easily. She failed in both the Court of First Instance and the Court of Appeal. Her reliance on the international jurisdiction was not accepted, despite the written submission from the International Commission of Jurists to the Hong Kong court – “Corbett should not now be regarded as good law in Hong Kong since it had been overturned by the ECHR in Goodwin and called into question by the House of Lords in Bellinger and since then superseded by statute” (para 147 in the Court of Appeal). Reference was also made to Japan, Singapore, the PRC, South Korea, and that “most Asian countries permit a transgender individual to marry in his or her acquired gender or have erected no legal barrier” (para 149), which was also rejected as evidence of having societal consensus in Hong Kong in construing the words “woman” and “female” inclusive of Miss W.
The Court of Final Appeal adopts a more liberal approach. To quote from the summary, the court held that in enacting the relevant matrimonial laws in dispute, the legislative intent was to adopt the decision of the English court in Corbett v Corbett. Yet, the nature of marriage as a social institution had undergone far-reaching changes and the importance of procreation as an essential constituent has much diminished. To restrict the criteria for ascertaining a person’s gender to merely biological factors would be inconsistent to the constitutional right to marry. The Court 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 sex reassignment surgery has occurred.
This decision will come to effect in 12 months. In the meanwhile the Legislature is considering whether Hong Kong should follow the United Kingdom’s Gender Recognition Act 2004 and formulate tests to decide questions regarding the implications of recognising an individual’s acquired gender for marriage purposes.
Brian Chan is a research assistant in the University of Hong Kong and a Juris Doctor Candidate. He benefited from the International Human Rights Law Programme in 2011 during his stay at New College, Oxford.