A transsexual woman who twice lost her court bid for the right to marry her boyfriend took her battle to the Court of Final Appeal yesterday.
Lawyers for the woman, 37, who has had a government-subsidised sex-change operation, said that by not recognising her new gender, the government in effect denied her the right to marry anyone - man or woman.
David Pannick QC, representing the woman who is identified only as W, challenged the government's argument that only persons of opposite biological sexes could marry because they could not procreate otherwise.
Pannick said fertility was irrelevant and that the Registrar of Marriages should recognise W as a woman under the Marriage Ordinance because she was "medically, psychologically and socially" a woman.
W was born male, underwent surgery to become female, and had her identity card changed to reflect her gender. But the Registrar of Marriages insisted only a person's gender at birth counts for the purposes of marriage.
She lost her judicial review in 2010 and her appeal in 2011 before the Court of Appeal granted her permission to take the case to the top court because it involved great public importance.
Yesterday, Pannick sought to argue that the words "woman" and "female" in sections 21 and 40 of the Marriage Ordinance included a post-operative male-to-female transsexual. And if the ordinance did not include it, he argued that human rights laws required that his client be considered a woman.
"We say the laws of marriage can and should recognise that sexual identity can change," he said.
He pointed out that a transsexual's right to marry was recognised in many countries, including Israel and mainland China.
Pannick said that in many legal aspects, W was recognised as a woman and questioned what made marriage laws different.
He said W would be treated as a woman under sex discrimination and sexual harassment laws. She could be a victim of rape, and if she were jailed, she would be sent to a women's prison.
But Monica Carss-Frisk QC, for the Registrar of Marriages, said the traditional meaning of marriage did not extend to include biologically same-sex unions.
She emphasised that "procreation" was an essential feature of marriage. That some couples did not want or could not have children, she said, was irrelevant because the court was concerned with a broad principle rather than individuals' fertility.
She said recognising a transsexual as a woman would give rise to many difficulties, such as questions of at what stage a man became a woman.
Pannick said he was not arguing for same-sex marriage and that his client was entitled to marry her fiancé only if the court recognised her as a woman.
The hearing continues today.