Legislation best route on sex change, court told

PUBLISHED : Wednesday, 11 August, 2010, 12:00am
UPDATED : Wednesday, 11 August, 2010, 12:00am

If there were a desire to change attitudes towards transsexuals, it should be achieved through legislation, rather than by having a court interpret marriage law, the Registrar of Marriages argued before the Court of First Instance yesterday.

The government was arguing in reply to a case brought by a male-to-female transsexual identified only as W, who is challenging the registrar because it has barred her from marrying her boyfriend.

W is seeking a court declaration that, for the purposes of the Marriage Ordinance, she is a woman, or alternatively, that so far as her right to marry is concerned, the Marriage Ordinance is inconsistent with the Basic Law and the Bill of Rights.

Yesterday concluded the two-day hearing of the landmark case in a courtroom overflowing with interested parties, including transsexuals.

W's lawyers had argued that the law guaranteed the right of marriage to 'residents' without stipulating whether they were male and female. As the law was gender-neutral, she should have the right to marry.

Government doctors have classified W as female, and she has had her gender on her ID changed to female. However, the registrar says she cannot marry her boyfriend because her chromosomes still say she is male.

Referring to various cases, Monica Carss-Frisk QC, for the registrar, said: 'These cases are really not so much about interpretation, but about legislation.' The issue, she said, should be dealt with by the legislature.

Should the judge decide the case in W's favour, she said, it would have ramifications on a wide range of legal issues. According to a list drafted by the Department of Justice and mentioned in court, these could include the categories of law dealing with family, crime, succession, compensation, benefits entitlement and tax.

The current definition of man and woman did not encompass transsexuals, she said. Discrimination against transgender males and females was rife in Hong Kong. 'Given those attitudes in Hong Kong, we say it would be particularly surprising if the ordinary usage of man and woman has been changed in the way that [W] says it has,' she said.

That people used the term sex change did not mean they recognised someone had changed from a man to a woman, but that they had attempted to change sex.

The judge reserved judgment.