Landmark transgender case set for highest court

PUBLISHED : Saturday, 26 November, 2011, 12:00am
UPDATED : Saturday, 26 November, 2011, 12:00am


A transsexual woman will take her landmark battle for the right to marry her boyfriend to the highest court after losing an appeal yesterday.

Her lawyer said this yesterday after the Court of Appeal ruled that the Registrar of Marriages had not erred or acted unconstitutionally in saying the marriage could not take place even though the woman is described as female on her identity card.

Michael Vidler said the ruling meant Hong Kong 'stands as an island' among other places including the mainland, Taiwan and Singapore where such women can marry.

The woman, identified only as 'W' in court, was born male, underwent surgery to become female, and had her identity card changed to reflect her gender. But the Registrar of Marriages told her that only a person's gender at birth counts for the purposes of marriage, and that a union between people of the same biological sex cannot be celebrated.

A legal challenge to that decision was rejected last year and yesterday Mr Justice Robert Tang, Mr Justice Michael Hartmann and Mr Justice Joseph Fok rejected W's appeal.

'W looks like a woman and acts like a woman,' Vidler said after the ruling. 'She's a woman on her ID card and her school certificates say she is a woman. In all respects, other than the right to marry, she is treated as a woman.'

He said W, who did not appear in court yesterday, was upset by the decision but was 'a strong woman' and would take the case to the Court of Final Appeal. Her boyfriend was supporting her, he said, adding that the couple wanted the opportunity to express their love for each other through marriage, but unfortunately would not be able to do so yet.

The Immigration Department welcomed the judgment. In handing down the ruling, the Court of Appeal found that the registrar had not misconstrued the Marriage Ordinance in deciding not to confirm W could marry her boyfriend, and that certain clauses that she had challenged were not unconstitutional.

The words 'man' and 'woman' had not been shown to have expanded to include post-operative transsexual men and women in ordinary usage in Hong Kong, the court said. If the law needed changing, it must be done by the legislature, it said.

The court heard earlier that W, 36, considered herself female from an early age. She underwent surgery to remove her penis and create a vagina in 2008, after which a doctor at the hospital issued her a letter certifying she had undergone male-to-female transsexual surgery. She applied successfully to change her name and gender on her Hong Kong ID card that year. She had her school records changed to reflect her gender.

In November 2008, her lawyers wrote to the Immigration Department's Marriage Registration and Records Office to ask if she could marry her boyfriend. It said it was not empowered to celebrate the union of two people of the same biological sex.