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W v Registrar Of Marriages

Judgment Cited authorities 22 Cited in Precedent Map Related
Vincent
Judgment Date05 October 2010
Year2010
Judgement NumberHCAL120/2009
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL120/2009 W v. REGISTRAR OF MARRIAGES

HCAL 120/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 120 OF 2009

____________

BETWEEN

W Applicant
and
REGISTRAR OF MARRIAGES Respondent

____________

Before: Hon Andrew Cheung J in Court

Dates of Hearing: 9 and 10 August 2010

Date of Judgment: 5 October 2010

_______________

J U D G M E N T

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1 INTRODUCTION

1.1 Issues raised

1. This application for judicial review raises questions of some general public importance. The immediate issue it raises is whether a post-operative male-to-female transsexual may marry a man (as opposed to a woman) in Hong Kong, either as a matter of law pursuant to the provisions of the Marriage Ordinance (Cap 181), or as a matter of constitutional entitlement under the Basic Law and the Hong Kong Bill of Rights.

2. However, by parity of reasoning, the issue so raised also affects the analogous case of a post-operative female-to-male transsexual, that is to say, whether such a transsexual person may marry a woman, as opposed to a man, in Hong Kong.

3. Indeed the position of a post-operative male-to-female transsexual and that of a post-operative female-to-male transsexual are so similar that in these proceedings, they have been dealt with together without much differentiation. The Court’s decision on the right to marry of a post-operative male-to-female transsexual would inevitably also determine, at least as a matter of principle, the analogous right of a post-operative female-to-male transsexual person to marry.

4. On the other hand, there are issues which this application for judicial review does not directly raise, and which the Court’s decision would not directly answer. However, it would be unrealistic to pretend that the Court’s decision would not have a general bearing on these wider or related issues.

5. First, the position of pre-operative transsexual persons in terms of their right to marry. I will presently come to the significance of the relevant surgical procedures, referred to properly as sex reassignment surgeries (SRS) or gender reassignment surgeries, or commonly as sex change operations. Depending on the Court’s decision on whether a post-operative transsexual person may marry in his or her desired sex, the position of a pre-operative transsexual could be affected. In other words, if the Court were to decide that a post-operative transsexual person cannot, as a matter of Hong Kong law, marry in his or her desired sex, by the same reasoning, neither may a pre-operative transsexual person.

6. On the other hand, if the Court were to come to the opposite conclusion and decide that a post-operative transsexual may marry in his or her desired sex (whether generally or in some specified circumstances), the same reasoning or logic may or may not overflow to cover the case of a pre-operative transsexual. There may or may not be sufficient distinguishing features to differentiate the two cases, whether in terms of the undergoing of SRS or otherwise.

7. Secondly, depending on how “sex” is to be defined, this application might be regarded as raising the question of same sex marriage in Hong Kong. If sex here is viewed as meaning biological sex determinable and determined at birth which cannot be changed subsequently, the present case does directly raise the question of whether same sex marriage, meaning marriage between two persons of the same biological sex, is permitted in Hong Kong, at least so far as post-operative transsexual persons are concerned.

8. On that basis, one cannot shy away from the fact that the determination by the Court of the issue actually raised in this application would have implications for other possible forms of same sex marriage, such as marriage of homosexual or lesbian couples.

9. The Court’s determination of the issue raised in this application would have ramifications from another perspective. The Court’s decision on whether a post-operative transsexual person may marry, as a matter of law, in his or her desired sex, would obviously not only affect the transsexual’s and his/her intended spouse’s personal and marital status, but could also affect their rights and interests in many areas of law, such as family (including adoption), succession, immigration, property rights, taxation, criminal law (gender-specific offences) and social welfare. This is because determination of the question of what constitutes a “man” or “woman” for the purposes of the law of marriage could also affect how those words and related terms are understood in other areas of law.

10. Having said all that, one must, nonetheless, focus on the immediate issue raised in the present application for judicial review, namely, whether a post-operative male-to-female transsexual person can, as a matter of Hong Kong law, marry a man?

11. This question has been approached on two levels in these proceedings, and the same approach will be followed in this judgment. The two levels are: first, under the Marriage Ordinance and related legislation; and secondly, on the constitutional level.

1.2 Sex and transsexualism

12. Most laymen would like to think that there is no difficulty in identifying a person’s sex. That must be true in most cases. Normally, physical appearances would be a sufficient guide. Physical appearances would include what are called secondary sexual characteristics, such as body hair, breasts, and fat distribution. A person’s voice and the presence or absence of an Adam’s apple are also good indicators. Where necessary, from a layman’s point of view, an examination of the person’s external sex organ (genital) would be conclusive. To those who know something about human anatomy, they may include the presence or absence of male or female internal organs, such as ovaries, testes, prostate gland and uterus, to the list of indicators. Still for those who have heard something about chromosomes and the X and Y chromosomes, they would say that the ultimate test of a person’s sex is his or her chromosomal make-up (ie “XY” for male and “XX” for female).

13. All of these may be loosely described as the biological indications of a person’s sex, and a person’s sex determined in accordance with such indications is referred to as the biological sex of the person. In a majority of cases, all these indications would be congruent; in most cases, there can be no doubt regarding a person’s biological sex, even at birth, leaving aside the relatively rare and special case of inter-sexed persons.

14. Yet there is another side to the story. There are a minority of people who, genuinely, do not accept their own “sex” as determined by the biological indications described above. One is not talking about here sexual orientation, ie the preferences for sexual relationship with a male or a female. One is concerned with people who are unhappy with, and indeed do not accept, their own biological sex. They genuinely believe that they belong to the opposite sex. Whilst many others might view the phenomenon as a psychological problem on the part of the person in question and regard the individual as suffering from a wholly misconceived, albeit genuine, perception of his or her own sex, to the individual concerned, it is the other way round. To the individual, what is wrong is not his or her perception and conviction, what is wrong is the body, which is out of harmony with the mind. In other words, the person feels and believes that he or she is trapped in a body of the wrong sex. From their perspective, their desire, and the ultimate solution, lie not with the “correction” of their subjective belief and conviction. The ultimate cure lies with the conversion of their body, so far as is humanly possible, to the body of the opposite sex to which they believe they belong. To such a person, his or her “true” sex is represented by their own belief, rather than by what their body otherwise suggests. The sex identity that the person believes he or she has may be referred to as the person’s psychological sex.

15. Thus analysed, it is immediately apparent that what a person’s sex is, whether a person is “male” or “female”, and whether such a person, in adulthood, should be described as a “man” or “woman”, are ultimately questions of definition. Put another way, the crucial issue is: whose definition?

16. Before dwelling on this question further, it is necessary to give further descriptions of the condition that the person under discussion has medically. Such a person is described as a transsexual or a transsexual person. He or she is suffering from a medicallyrecognised condition known as transsexualism, gender identity disorder (GID), or gender dysphoria. Some, including those who believe that the aetiology of the condition is at least partly biological in nature, do not prefer the description “disorder”. Apart from the stigma that the word may possibly carry, one consideration that is relevant to the issues raised in these proceedings is that the use of such a word may beg the very question that the Court has to answer, that is to say, what really is the sex of the person who is having this condition under discussion. To say that the person is suffering from a “disorder” might suggest that what is wrong with the person is his or her non-acceptance of, or inability to accept, their own (biological) sex, rather than that their body does not match their perceived sex; and thereby prejudging the ultimate issue.

17. From the evidence, it would appear that medical science’s understanding of a person’s sex and its determination thereof have moved away from a purely biological approach to a more holistic one. The modern approach involves a consideration of not only the biological indicators, but also of other...

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