Court ruling on transgender marriage raises hopes for other minorities

Cora Chan says that while verdict is welcome, judiciary must show consistency on other issues

PUBLISHED : Tuesday, 21 May, 2013, 12:00am
UPDATED : Tuesday, 21 May, 2013, 4:15am

Last week, the Court of Final Appeal ruled that it was unconstitutional for the government not to allow Ms "W", who was born biologically male but underwent surgery to become female, to marry her boyfriend. This ruling raises important issues for the courts, government and general public.

The government argued that society ought to decide who is entitled to marry; unelected judges could only allow transsexuals to marry in their desired gender if there was a consensus on this issue, which was not the case. It would be undemocratic for judges to change the meaning of marriage without such a consensus.

If courts defer to social views...the very point of having these rights would be defeated

The court rightly rejected this argument. The purpose of stipulating human rights in our constitution is to ensure that individuals - including those who are in a minority and not represented in normal political processes - are not deprived of these basic entitlements.

Courts are charged with guarding individual rights against majoritarian intrusion precisely because they are unelected and free from the pressure to kowtow to electors' wishes. If courts defer to social views in protecting individual rights, the very point of having these rights would be defeated.

Nonetheless, the court's bold ruling is inconsistent with the judiciary's deferential approach in dealing with the fundamental rights of other minority groups, such as foreign domestic helpers, mainland mothers using obstetric services in Hong Kong hospitals, and new migrants from the mainland. In these cases, the courts have deferred heavily to the views of the legislature.

While I hope the court's approach in the W case is the beginning of a consistently rigorous approach to upholding fundamental rights, there are concerns that the judgment is merely a symptom of "palm tree justice" - courts relying on social views when they do not wish to intervene, but refusing to defer when they want to intervene. In addition, human rights cases often involve controversial moral issues. To effectively guard against the oppression of minority rights, courts should not defer to the will of the majority in determining what rights an individual should have.

But how should judges themselves make this determination? It would be unacceptable to allow judges to impose their own personal values as it would lead to unfairness and inconsistent judgments. Above all, it would be undemocratic - allowing the personal views of unelected judges to dictate our law. To earn legitimacy for their judgments on controversial moral issues, courts should develop and articulate a principled approach to ascertaining a community's fundamental values.

Minority rights have always been a low priority for our government. Our executive seriously lacks legitimacy and is desperate to heed the wishes of the majority, which, unfortunately, is oblivious to minority issues. Yet a truly representative government ought to be a government for the minority, too. In ignoring the rights of sexual minorities, our government has been complicit in their day-to-day suffering.

The CFA gave the government 12 months to amend legislation in line with the judgment. Let's hope it can now introduce comprehensive legislation on equal rights for sexual minorities.

Although the court stressed that the case should not be considered a ruling on same-sex marriage, it is only a matter of time before the absence of legislation protecting the equal rights of sexual minorities and the unavailability of gay marriage in Hong Kong is challenged in the courts. Indeed, in the W case, the court has invalidated two of the main arguments against granting same-sex marriage: that procreation is the essence of marriage; and, that marriage should be defined by societal consensus.

In thinking of controversial moral issues, we should consider the broader question of what kind of society we want to live in. Do we want a society that only tolerates one lifestyle, viewpoint and religion, and suppresses all other competing ideas? Or do we want to create a pluralistic community that respects these differences? The CFA has come down firmly in favour of the latter.

Hong Kong society generally respects diverse political views, as can be seen in its frequent condemnations of the mainland government's treatment of political dissenters. But to the extent that the same society tyrannises minority values, it is a disingenuous democracy.

We all have prejudices and misunderstandings against people who are different from us. The important thing is to recognise this limitation and seek to overcome it through rational discussion. The government plays a crucial role in facilitating this discussion.

Discrimination against sexual minorities in Hong Kong stems partly from the fact that the issue is considered taboo here. Public consultation on equal rights for these minorities would be the first step to allowing society to understand the condition of, and debate the rights of, these groups.

Cora Chan is an assistant professor at the Faculty of Law, University of Hong Kong