Transsexual loses legal bid for right to marry

PUBLISHED : Wednesday, 06 October, 2010, 12:00am
UPDATED : Wednesday, 06 October, 2010, 12:00am

A transsexual woman yesterday lost her landmark challenge against a law that bars her from marrying her boyfriend, but her case could become a catalyst for change.

A judicial review filed by the woman, identified only as W, challenged the government's refusal to allow her to register a marriage with her boyfriend. It was dismissed in the Court of First Instance yesterday.

Despite ruling against the application, Mr Justice Andrew Cheung Kui-nung urged the government to consult the public on the broader issue of transsexual rights.

'It is hoped that this case will serve as a catalyst for the government to conduct general public consultation on gender identity, sexual orientation and the specific problems and difficulties faced by transsexual people, including their right to marry,' Cheung said.

It also brought a call for the Law Reform Commission to conduct a study on the rights of homosexuals and transsexuals in the city. That came from lawmaker Alan Leong Kah-kit, who said public opinion should be sought and the city's law needed to be updated in line with the changing values of the times.

'The government cannot keep its head in the sand any more when it comes to transsexuals, gays and lesbians - it should seek public opinion on this as soon as possible,' he said.

Human Rights Monitor director Law Yuk-kai agreed that it was time for action on an issue the government had for a long time avoided. He supported a public consultation to gauge opinion on transgender and homosexual rights.

'The Hong Kong government has swept this issue - which is socially and politically sensitive - under the carpet. It even gives religious groups the idea that the government is on their side,' Law said.

He said his group was worried about a statement in the ruling - that public consensus and acceptance was necessary for transsexuals to be allowed to marry in Hong Kong.

This, Law said, was inconsistent with minority rights principles and could give the public the wrong impression when it comes to basic human rights.

Although the judge acknowledged there was a legislative gap that needed to be filled, Cheung said it was not for the court to resolve. He said he hoped the government would not view the ruling in the case as simply a victory.

The transsexual at the centre of the case, who is now in her thirties, says she felt she was female from a young age. From 2005 to 2008, she underwent the procedures necessary to change her gender. That involved psychiatric assessment, hormonal treatment, an orchidectomy to remove the testicles, and sexual reassignment surgery.

She also changed her name and gender on her identity card and academic records at the institution where she was studying.

In her filing, she argued that the government had wrongly regarded her as a man under the Marriage Ordinance - and that its provisions were unconstitutional.

After the ruling yesterday, she said she was confused and disappointed. 'I wish to be treated like any other woman. With one hand the Hong Kong government gives me that hope, yet with the other it takes it away,' she said. She will appeal against the decision and will not get married abroad.

The government responded that it would 'need to, and will continue to' listen to the views of the community.

While acknowledging the need for public consultation on the issue, the judge said no evidence had been brought in the case of an emerging consensus or general understanding that it was acceptable for transsexuals to marry in Hong Kong.

Without that, Cheung said, the court could not assume the latest attitudes to marriage and bring the traditional understanding up to date.

He said W had not proven that the modern definition in marriage of 'man' and 'woman' included a transsexual who has undergone a sex-change operation.

But W said she was concerned that the court appeared to have confused her wish, as a transsexual, to marry her boyfriend with the issue of same-sex marriage.

That worry was shared by Choi Chi-sum, general secretary of Christian concern group the Society for Truth and Light. Choi said the debate should be clear - transsexual marriage should not be mixed up with same-sex unions.

'The general public should have more discussion focusing on transsexual marriage ... otherwise it makes the situation very complicated,' Choi said.