Law gender-neutral so sex change no bar, court told

PUBLISHED : Tuesday, 10 August, 2010, 12:00am
UPDATED : Tuesday, 10 August, 2010, 12:00am

If the right to marriage is interpreted only as the right to marry a chromosomal opposite, that is not a right at all in the case of one post-operative transsexual woman who wants to wed her boyfriend, a court heard yesterday.

'That is no choice at all. That is grotesque in the extreme, to suggest she can only marry a woman when she has had irreversible surgery,' Philip Dykes SC, representing the woman, said.

The barrister was speaking on the first day of a two-day hearing of a challenge by the woman, who under a court order can only be identified publicly as W, to a ruling by the Registrar of Marriages that she cannot marry her boyfriend.

Referring to an article in the Basic Law, he said it guaranteed the right to marriage for residents and did not specify that the resident must be a man or a woman. Had it stipulated a man or a woman, there would be more room for argument. But as the article was gender-neutral, W should have the right to marry.

The woman is seeking a court declaration that she is a woman for the purposes of the Marriage Ordinance or, alternatively, that as far as her right to marriage is concerned, the ordinance is incompatible with the Basic Law and Bill of Rights.

The landmark case drew transsexuals, lawyers and journalists to a packed courtroom at the Court of First Instance yesterday.

W was born male and had sex-change surgery under the public health system. She has had her gender changed on her ID card, government doctors have certified her as female, and if she were to apply for a passport, she would say she was female, Dykes said. 'W perceives herself to be a woman. W is, as far as is possible, a woman.'

But last year, the Registrar of Marriages decided she could not marry. The sticking point appears to be her chromosomes. 'As W has a man's chromosomes, the respondents,' Dykes said, referring to the Registrar of Marriages, 'say she can't marry'. W also cannot change the gender on her birth certificate.

Dykes quoted some who say chromosomes are no longer the determining factor in gender and that although they play a part, they are not the unique determinant.

Historically, transsexuals were treated as freaks, Dykes said, noting that a Chinese term for them, yan yiu, meant 'strange person'. But society was now more tolerant and tried to be more inclusive, which was reflected in the government's treatment of these individuals.

Dykes said the current reading of the Marriage Ordinance took away W's right to marriage, and this could not have been the legislative intent.

'According to the contemporary values, the idea of one man, one woman for life for the purposes of procreation no longer holds,' he said. The mainland, Singapore and Malaysia allowed transsexuals to marry.

But Monica Carss-Frisk QC, for the government, said there was a significant difference between the issue of sexual identity for purposes of identification and for marriage.

The government had made it possible for W to live to a great extent in her preferred identity, being able to change the gender on her ID card, Carss-Frisk said. But doing so for marriage would have wider consequences. If W was right, it would have far-reaching consequences on issues of criminal law and inheritance. That, she said, was a sign that the judge was being asked to legislate.

The House of Lords held that the equivalent British legislation could not be interpreted the way W wanted, and the Hong Kong variant shared a common legislative history, she said.

The case continues today before Mr Justice Andrew Cheung Kui-nung.