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W v The Registrar Of Marriages

Judgment Cited authorities 23 Cited in Precedent Map Related
Vincent
Judgment Date13 May 2013
Year2013
Citation[2013] 3 HKLRD 90; (2013) 16 HKCFAR 112
Judgement NumberFACV4/2012
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES FACV4/2012 W v. THE REGISTRAR OF MARRIAGES

FACV No. 4 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2012 (CIVIL)

(ON APPEAL FROM CACV NO. 266 OF 2010)

_____________________

Between :

W Appellant
- and -
The registrar of marriages Respondent
______________
Before : Chief Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Bokhary NPJ and Lord Hoffmann NPJ
Dates of Hearing: 15 to 16 April 2013
Date of Judgment : 13 May 2013

_____________________

J U D G M E N T

_____________________

Chief Justice Ma and Mr Justice Ribeiro PJ:

1. The appellant, W, is a post-operative male-to-female transsexual person. In common parlance, she is a transsexual person who has undergone “sex change” operations and now lives as and appears in all respects to be a woman. She and her male partner wish to get married. However, the Registrar of Marriages has decided that she does not qualify as “a woman” under the Marriage Ordinance and the Matrimonial Causes Ordinance, so that there is no power to celebrate a marriage between her and her male partner.

2. The appellant brought judicial review proceedings to challenge that decision, contending that she ought in law to count as a woman for the purposes of marriage. The challenge failed at first instance[1] and in the Court of Appeal.[2] Lord Pannick QC, appearing for the appellant,[3] makes it clear that it is no part of the appellant’s case that same sex marriage should be permitted. The contention advanced is that she is for legal purposes a woman and entitled to marry a person of the opposite sex. We should make it clear that nothing in this judgment is intended to address the question of same sex marriage.

3. Leave to appeal was granted by the Court of Appeal on the basis that the following questions of great general or public importance arise on the appeal:

Whether 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 answer to Question 1 is ‘No’, whether sections 21 and 40 of the MO are unconstitutional having regard to the Appellant's right to marry under Article 37 of the Basic Law and/or Article 19(2) of the Hong Kong Bill of Rights ['HKBOR']) and/or her right to privacy under Article 14 of the HKBOR?

4. The questions for the Court are therefore whether the Registrar has misconstrued the Ordinance in coming to his conclusion precluding the appellant from marrying her male 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. We will consider in turn the question of statutory construction and the constitutional question. But first, we should examine the condition of transsexualism and the appellant’s circumstances.

A. The condition of transsexualism

5. It is now well-established that transsexualism is a condition requiring medical treatment. The World Health Organization classifies transsexualism as a species of gender identity disorder involving:

“A desire to live and be accepted as a member of the opposite sex, usually accompanied by a sense of discomfort with, or inappropriateness of, one’s anatomical sex, and a wish to have surgery and hormonal treatment to make one’s body as congruent as possible with one’s preferred sex.”[4]

6. As Dr Ho Pui Tat[5] explained, it is possible to regard the sexual identity of an adult individual as determinable by reference to psychological and biological factors. The psychological aspects include gender identity (self perception of being male or female); social sex role (living as male or female); sex orientation (homosexual, heterosexual, asexual or bisexual); and sex of rearing (whether brought up as male or female). The biological aspects include the genetic (the presence or absence of the Y chromosome); the gonadal (the presence of ovaries or testes); the hormonal (circulating hormones and end organ sensitivity); internal genital morphology (the presence or absence of male or female internal structures such as the prostate gland and the uterus); external genital morphology (the structure of male or female external genitalia); and secondary sexual characteristics (body hair, breasts and fat distribution).

7. In the vast majority of people, these indicia are all congruent, that is, they all point in the same direction, identifying the individual as either male or female.[6] However, people who have the misfortune of suffering from the gender identity disorder or gender dysphoria of transsexualism possess the chromosomal and other biological features of one sex but profoundly and unshakeably perceive themselves to be members of the opposite sex. They may persistently experience acute emotional distress, feeling themselves trapped in a body which does not correspond with what they firmly believe to be their “real” sex.

8. The aetiology of the condition is uncertain. It has traditionally been regarded as psychological in origin but there is a body of scientific and medical opinion favouring the hypothesis that it may have a genetic or organic explanation. But whatever the aetiology, there is no doubt that in severe cases, it can give rise to much suffering and possibly self-destructive behaviour. As Professor Sam Winter[7] stated in his affidavit, transsexual persons:

“... consider themselves females imprisoned in the male bodies, or vice versa, and intensely resent their own sexual organs which constantly remind them of their biological sex. They go to great lengths to relieve themselves of their psychological distress. For example, transsexual men put on make-up, remove facial and pubic hair, and use oestrogen to promote the development of female breasts. They implore doctors to perform operations to remove their male genital organs and construct for them a vagina from their penis. Some of them mutilate themselves in order to be rid of the gonads and genitalia they detest. ... the inner turmoil transsexuals experience prompts some of them to undergo prolonged and painful surgery or even take their own lives.”

9. Professor Winter noted that their “mental and emotional well-being is also affected by other’s perception of and judgment on them.” The gender recognition which the law accords to them is obviously relevant in this context.[8]

10. Professor Robyn Emerton[9] has pointed out[10] that intrusive social pressures can cause great hardship and even lead to tragic consequences:

“The plight of Hong Kong’s transgender persons recently came to the fore after the suicide of Louise Chan, a young transgender woman, on 21 September 2004. Louise first came to the public’s attention when she was stalked and ‘outed’ by the local media in 2003 resulting, amongst other things, in the loss of her job. Two days after Louise’s death, another transgender woman, Sasha Moon, also committed suicide.”

11. It is generally recognized that transsexualism does not respond to psychological or psychiatric treatment. The only accepted therapy involves effecting hormonal and surgical changes to make the patient’s body conform sexually as closely as possible with his or her self-perception and thus to address his or her psychological needs. As Dr Ho Pui-tat explained, the management of persons with the relevant symptoms begins with a full psychiatric assessment. If the diagnosis of gender identity disorder is confirmed, the patient is usually required to go through a “real life experience”, living in the preferred gender for about two years while having hormones of the opposite sex administered to produce reversible physical changes in the body and to ease the patient’s psychological discomfort. If it appears from this process that the patient can successfully live as a person of the opposite sex, he or she is considered medically eligible for sex reassignment surgery (“SRS”).

12. However, as Dr Ho noted, not all transsexual patients choose to undertake SRS. The level of psychological discomfort in people with gender identity disorder differs, ranging from mild gender dysphoria to severe transsexualism. Those less severely afflicted may decline surgery. There may also be social constraints, for instance, a desire not to put good careers at risk by undergoing a sex reassignment. Or the patient may not be willing to face the painful process of surgery with what may be an uncertain outcome, especially in the case of female to male transsexuals where the surgery is more complex and difficult.

13. Dr Albert Yuen Wai Cheung[11] explained that where the decision is made to proceed with SRS, the surgery comprises at least two elements: breast and genital surgery,[12] the procedures differing for male-to-female and female-to-male patients. Dr Yuen described what can and cannot be achieved by surgical intervention as follows:

“For male-to-female transsexual surgery, breast augmentation is done for patients whom the breast enlargement after hormone treatment is not sufficient for comfort in the social gender role. Genital surgery includes at...

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