Overruling the Registrar of Marriages in Hong Kong, who refused to issue a marriage license to a “post-operative” transgender woman who sought to marry her male partner, the Court of Final Appeal of the Hong Kong Special Administrative Region ruled on May 13 that the woman, identified as W in court papers, was entitled to the license, although the majority of the court was not unanimous in its reasoning. Ironically, such a right for a transgender woman to marry in her preferred gender is already recognized in mainland China, according to the court. The Registrar’s position reflects Hong Kong’s previous status as a British possession in which the courts continue to follow British legal precedents. In the U.K., such marriages are now legal by virtue of legislation enforcing a ruling by the European Court of Human Rights, but former British colonies may continue to enforce outdated British court rulings on the subject.
For the majority of the court, the ruling here was premised on the fact that W has gone through the entire cycle of gender transition, including surgery necessary to make it possible for her to engage in sexual intercourse with her male partner although, of course, such intercourse cannot lead to pregnancy. The court noted that the ability to procreate through sexual intercourse is not a necessary feature of marriage in the modern state, in which people who are incapable of conceiving due to age or medical conditions are fully able to marry. Indeed, the court majority was not even willing to hold that the ability to consummate the marriage through sexual intercourse was a necessary prerequisite. Focusing on the facts of the case before it, the court held that surely W qualified, and that it would be up to the Hong Kong legislature to respond to the decision with a statute that develops the necessary criteria to govern in other cases.
The major different between the majority of the court and the concurring judge was over whether this case required resort to constitutional interpretation or could be resolved through statutory interpretation. The marriage laws in Hong Kong unequivocally require that marriage be between a man and a woman, so the question is whether W can be deemed a woman for purposes of these laws. Hong Kong has already gone a long way towards this conclusion by authorizing the issuance of new identity papers and passports designating somebody as legally a woman after gender transition, but the jurisdiction does not allow for changes on birth certificates, taking the position that such certificates are a historical record of gender as determined at birth.
The Registrar, in denying the license, relied on old British precedents holding that a person’s sex for purposes of the right to marry is the sex identified at birth. As a matter of normal statutory interpretation, the majority of the Court held that this could not be questioned, and it was necessary to consider constitutional arguments over equality, especially as the Hong Kong legislature had followed the lead of the British Parliament in1971 when that body codified the old judicial precedent of Corbett v. Corbett, a 1970 decision by the Law Committee of the House of Lords. Hong Kong had adopted amendments to its marriage law incorporating the same view.
The court looked to Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights. Article 37 provides: “The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.” Article 19(2) provides: “The right of men and women of marriageable age to marry and to found a family shall be recognized.”
The court concluded that under the Corbett ruling and the Registrar’s decision implementing it in W’s case, W would, in effect, be precluded from the right to marriage. Having gone through a total gender transition, including anatomical alteration, she is physically a woman who desires to marry a man, and her right to marry as a woman is thus totally denied. She can’t marry another woman even if she wanted to, because Hong Kong law makes marriage available only to different-sex couples, and the court emphasized that this case did not, in its view, involve the question of same-sex marriage, since W is legally recognized as a woman. Since Hong Kong recognizes W in law as a woman, the court found that the only way to effectuate her right to marry is to declare the existing statute unconstitutional insofar as it would preclude her from marrying.
However, the majority recognized the administrative difficulties this might create due to the different degrees of transition through which any particular transgender woman might have gone when she seeks a marriage license. The court pointed out that the U.K. has established through legislation a detailed procedure for determining gender identity as a response to the European Court’s ruling that transgender individuals should be not deprived of their right under the European Convention to marry and form a family. Under the British model, surgical transition is necessary for a transgender woman to be able to marry a man. While the court ordered that W be granted the license she is seeking, it stayed its ruling as to any other persons for up to a year to give the legislature time to enact the necessary provisions through which a determination can be made in any particular case whether the transgender women seeking a marriage license is qualified to receive one. The court strongly hinted that a law patterned on the U.K. measure would be appropriate. Although of course the ruling is not binding on the Hong Kong court, the court paid much attention to the European Court of Human Rights’ Goodwin decision, which had prompted the U.K. to adopt its Gender Recognition Act.
The concurring judge, Justice Bokhary, differed with the majority on the need to reach the constitutional question, opining that the court could, through “remedial interpretation,” bring the existing law up-to-date consistent with current understandings of gender identity and the ability of modern surgery to alter a transgender woman so as to justify a legal sex designation change. Dissenting, Justice Chan contended that society’s views on these matters had not evolved so far in Hong Kong as they had in Europe, and that the question of marriage should be dealt with legislatively, not through a constitutional ruling of the court.
W was quoted in the press as hailing the decision but insisting that it was just one step in a larger struggle to achieve equal rights for transgender individuals in Hong Kong. Chief Justice Ma and Justice Ribeiro were identified as joint authors of the majority decision, to which Lord Hoffmann signified concurrence. Justice Chan dissented. Justice Bokhary concurred in the result.