Hong Kong has made a small but welcome step in protecting the rights of sexual minorities. In a landmark ruling yesterday, the city's top court ruled in favour of a man-to-woman transexual who was banned from marrying her boyfriend by the government. While the case is not about same-sex marriage, it does raise a valid question. If transgenders can marry like anyone else, what about gays and lesbians?
The nature of marriage as a social institution has undergone far-reaching changes in modern society. This has been recognised by the Court of Final Appeal, which said the importance of procreation, an essential constituent of marriage under the common law, was diminishing. The appellant, identified as W, clearly wanted to live her life as a full woman when she underwent a sex change in a government hospital five years ago. But she could not marry anyone, man or woman, under a law that restricts marriage to a union between a man and a woman, and only takes into account one's biological features at birth, but not the "acquired" gender.
That W had to go all the way to the top court to affirm her fundamental right to marry is regrettable. In a four-to-one judgment, the top bench held that the right to marry is protected by the Basic Law and, therefore, whether the public have a consensus or not on a transgender's right to marry is not a relevant consideration. It said reliance on the absence of a majority consensus as a reason for rejecting a minority's claim is inimical in principle to fundamental rights.
Whether the ruling can push the government to revisit anti-discrimination laws for sexual minorities will be closely watched by rights activists. Hong Kong prides itself on being a society with equal opportunities for everyone. Regrettably, the government continues to dodge public consultation on the issues, saying the community is deeply divided. The ruling provides a good basis for a wider debate on how best to protect the rights of gay, lesbian, bisexual and transgender people.