It was inaccurate for lawyers of a transsexual woman to suggest she was recognised as a woman under many gender-specific laws, government lawyers told the top court yesterday.
Monica Carss-Frisk QC, for the Registrar of Marriages, said it was unclear if the transsexual, identified only as W, would be regarded as a victim of rape and a woman under sexual discrimination and harassment laws.
W, who underwent surgery to become female and had her identity card changed to reflect her gender, is challenging two previous rulings that forbid her from marrying her boyfriend.
Carss-Frisk said there was no evidence to show societal values and morals in Hong Kong had shifted so radically as to include a post-operative male-to-female transsexual in the meaning of "woman" and "female".
If there was a need to change the meaning of the words under marriage laws, it had to be done by the legislature, she told the Court of Final Appeal on the second day of W's landmark appeal.
David Pannick QC, for W, reiterated that the status quo of the law in effect denied his client the right to marry anyone. "It's absurd to suggest that she can marry another woman," he said.
Carss-Frisk said the court should not follow a European Court of Human Rights decision in 2002 that allowed a transsexual woman to marry a man.
The ruling was affected by prevailing values and major consensus in Europe, but there was no such consensus in Hong Kong or internationally, she said.
Pannick said the court should be slow to accept that constitutional rights in the city should depend on the views and values of Hong Kong society.
"Rights such as freedom of the press and freedom of speech cannot depend on how popular they are in Hong Kong," he said.
W was born male but had a sex change operation and had her identity card changed.