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  • Nov 1, 2014
  • Updated: 3:57am
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COURTS

Transsexual marriage ruling opens door to questions of inheritance

PUBLISHED : Tuesday, 14 May, 2013, 12:00am
UPDATED : Tuesday, 14 May, 2013, 10:10am

A new twist could be thrown into the controversy over male-line inheritance rights in the New Territories by the court ruling allowing a transsexual to marry.

This is just one area likely to be affected by the new definition of "woman" to cover male-to- female transsexuals, legal experts said yesterday.

Others include matrimonial rights and sex offences.

Dr Karen Lee Man-yee, an assistant professor teaching constitutional law at Shue Yan University, said one question was whether an indigenous man who became a woman would lose his inheritance rights or whether a woman who became a man would gain them.

For matrimonial matters, if a male-to-female transsexual has married and had children before she has a sex-change operation, should her duty as a 'father' continue after the operation?
Dr Karen Lee Man-yee

"For matrimonial matters, if a male-to-female transsexual has married and had children before she has a sex-change operation, should her duty as a 'father' continue after the operation?" Lee asked.

"Also, only women can be victims of rape under Hong Kong law. So does the identity of a victim extend to transsexual from now."

Dinusha Panditaratne, adjunct assistant professor of law at the Chinese University, said that if post-operative transsexuals had the right to marry, this implied that they also had the associated rights of divorce, inheritance and adoption.

"But the court did not explicitly say so - instead, it asked the legislature to consider all these issues together."

Panditaratne praised the ruling as "reassuring for the general protection of rights" as it made clear that individual rights "should not be at the mercy of what the majority thinks".

But she did not think the court had intended to open the door to same-sex marriage.

Heung Yee Kuk president and former Law Society president Junius Ho Kwan-yiu said there was no current provision in the New Territories small-house policy excluding female-to-male transsexuals from the right to build a three-storey house.

"The logical deduction from the judgment today is that he is entitled, as long as the person is at least 18 years old and descended through the male line from a resident in 1898 of a recognised village," he said.

University of Hong Kong gender expert Dr Sam Winter said the ruling gave no safeguards to transsexual men or to pre-operative or non-operative transsexuals, unlike in Britain.

 

 

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Giwaffe
It would appear that this problem could be solved and mitigated if references were not made back to one's birth certificate, but rather to the gender on one's HKID card. Is it not, after all, the purpose of an identity card to identify key attributes of an individual, including gender? It really is no one else's business if a person was once a female and now a male after a sex change operation or vice versa, so there is no need to constantly revisit one's birth certificate.
A transgendered female would be female, as stated on her ID card. Rape would be rape, marriage would be marriage, and divorce would be divorce. In fact, none of these "issues" are issues at all. The real inconsistency that the Marriage Ordinance (and perhaps a whole slew of other ordinances) was poorly written--instead of basing one's gender on one's identity card, it based it on one's birth certificate.
This is really an issue of poor ordinance design (reminds me of absolute versus relative references/paths in computer science). The simplest and most efficient method of dealing with the perceived inconsistencies is to amend all ordinances that make reference to one's gender to make that reference based on one's identity card.
 
 
 
 
 

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