Don't deny transgender people the right to marry

Last week, the Legislative Council held the first reading of the Marriage (Amendment) Bill, introduced to implement the Court of Final Appeal's order in the landmark "W" case.

After male-to-female sex reassignment surgery, "W" sought and won the right to marry her male fiancé. Addressing the issue of gender recognition for marriage, the court wrote: "We would not seek to lay down a rule that only those who have had full gender reassignment surgery involving both excising and reconstructive genital surgery qualify. We leave open the question whether transsexual persons who have undergone less extensive treatment might also qualify."

Recently, the government took the positive step of setting up a high-level interdepartmental working group to examine the issue of gender recognition more broadly. It is, therefore, hard to understand the logic of its premature attempt to close the legal door left open by the court. The bill, if passed, will require a person to undergo full gender reassignment surgery to be able to marry in his or her affirmed gender.

Passing the bill now without establishing an acceptable gender recognition procedure would undoubtedly open up more legal challenges for the government. More troublingly, in the intervening years until such a procedure can be established, many transgender people will be stranded in legal limbo, unable to marry the partner of their choice and access the related marriage rights and benefits.

Full sex reassignment surgery is invasive and normally results in sterilisation.

The problem with restricting gender recognition only to those who have had full surgery is that, for a variety of reasons, many transgender people choose not to undergo such surgery. Some may only be comfortable with undergoing hormonal treatment and physical changes to their appearance. Worse, requiring full sex reassignment surgery can also be construed as a policy of coercion: surgery and sterilisation for legal recognition and subsequent rights.