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19 Aug 2010

Ms W vs. the Hong Kong Registrar of Marriages

Fridae.com's Hong Kong Correspondent, Nigel Collett, investigates a current judicial review of Hong Kong’s refusal to allow transgender marriage.

Ms W is a woman who has fallen in love with a man. Like many other women, she wants to get married, and as a Hong Kong resident, born and educated in the territory, wishes to do so here.

“Marriage for me”, she told me when I met her in her solicitor, Michael Vidler’s, office, “is not just a custom. It is the final destination.”

The Hong Kong Registrar of Marriages, though, has refused permission, for Ms W is transgendered (TG), born with the chromosomes and body of a man but with the mind, heart and soul of a woman. This is no passing fancy; she has always seen herself as a woman. From childhood, she hated her male sexual organs and wished only to be rid of them. As soon as she could, she entered the lengthy and at times distressing and painful process of assessment, counselling, hormonal treatment and eventual sex reassignment surgery. After over three years, she completed this and, armed with a Hong Kong ID card showing that she was female (a card, ironically, which she is compelled to carry and show by the same Registrar who has refused her the right to marry), she went back to university to complete her studies and go out into the world, where she now works in the creative arts industry.

Then came the blow of the Registrar’s refusal and her life altered forever. Hong Kong’s Registrar of Marriages ruled last year that she could not marry her boyfriend because her birth certificate – which could not be changed under Hong Kong law – says that she is still a man.

Galvanised, she sought legal help and came to the solicitor’s offices of Michael Vidler, the lawyer now famed in the Hong Kong LGBT community for his fighting of landmark cases like those of Billy Leung (which overturned the unequal age of consent) and Siu Cho (which overturned an attempt by the Broadcasting Authority to hobble discussion of homosexuality by Hong Kong TV).

Ms W describes herself as “a shy girl, not able to handle the pressure of the media”, and she has sensibly chosen to hide her real identity and appearance from the prurient Hong Kong press. Her plight, though, has developed steel within her.

“This case is important to me and my partner,” she told me, “but it’s also important for the TG community. Everyone should have the right to marry.” So she is fighting.

“I don’t want the Government to treat us as TG”, she added. “I want the Government to treat us as male or female in our reassigned gender. There’s a lot of discrimination in this world, and I want to rid our society of it.”

Behind this case lies Hong Kong’s history as a British colony and its laws that are a hang over from pre-handover days. Whilst China, to which Hong Kong returned in 1997, permits TG marriage (as do other countries like Japan, Taiwan, Singapore, Indonesia and Malaysia), Hong Kong’s Marriage Ordinance allows only marriage between male and female and uses the birth certificate as proof of gender. The birth certificate, alas, is the only document in Hong Kong which cannot be changed for a TG person, so the gender assigned at birth (which almost always follows the chromosomes) is what counts here for marriage. This is despite the fact that Hong Kong’s constitution, the Basic Law, states that every Hong Kong ‘resident’ (and the term is gender neutral) has the right to marriage. There is a tragic legal discrepancy here. 

In effect, some parts of the Hong Kong Government (its medical and social professionals) are working to create persons of a gender which another part of the Government, the Registrar, will not recognise. It is as if there is now a third gender of partial citizens confined to a twilight zone where they cannot marry. There is an obvious failure of joined up Government to add to the legal clash. 

Ms W’s case came to the High Court over two days from Monday 9 to Tuesday 10 August before the Honorable Mr Justice Cheung. Ms W applied to the court for redress, either in the form of being declared legally a woman, or in the form of a declaration from the Court that the Marriage Ordinance breached the Basic Law. The case has naturally caused much interest in Hong Kong as it is the first of its kind. Most of the public commentary in both the Chinese and English media has been neutral or even sympathetic and supportive. 

The South China Morning Post, Hong Kong’s major English language newspaper, ran an editorial calling for a change in the law to allow TG persons to marry. So it is even more surprising that the Government has fought the case tooth and nail, paying an exorbitant (it was guessed) sum of money for an English QC to be flown in to lead their team. 

Why they did this became clear in court. The Government’s case was driven by their fear that, should Ms W be allowed to marry, then Hong Kong would have moved one small step along the road to same-sex marriage. The Government uses its own rules embodied in the Marriage Ordinance, as well as by now already superseded English case law (the 1970s case of April Ashley, Corbett v Corbett, in which the judge used chromosomes as the sole test of gender) to conclude that Ms W is a man.

Despite the advances of science of the last forty years, despite the utterly convincing details of her own case, despite the long and deliberate actions of its own caring professionals, despite the Government’s issue of its own female gendered ID card, in the Government’s eyes Ms W is still a man. So if she is allowed to marry a man, the Government seems to fear, a precedent will be established for same-sex marriage. The Judge recognised this immediately, saying that “Behind all this, of course, looms the issue of same-sex marriage”. 

Throughout her submission, the Government’s barrister concentrated upon arguments proving that legally Ms W was still a man. The Government tried to brow beat the Judge into not causing changes in the law that would advance the cause of same-sex marriage as they claimed this was a matter for the legislature, not the judiciary. He wasn’t swayed by this, rightly, as Hong Kong still has no democratic legislature and its courts have an obligation to deal with legal discrepancies relating to its constitution. As he succinctly put it, without the courts there is no protection for minorities at all. At the very end of the two days, the Government’s last question to Ms W’s team was to ask them to confirm that same-sex marriage was no part of their case. 

Which, of course, it isn’t. Ms W and her lawyers seek to establish the opposite, that she is a woman with the right to marry a man. The fact that the Government was not interested in this or in general in the rights of the transgendered became clear during the case; at one point their barrister made the statement (apparently without seeing anything untoward in it) that the Government believed its transgender policy had achieved a ‘fair balance’; Ms W had had her operation, she could live and work as a woman. She couldn’t get married, but that, the Government thought, was ‘fair’. Such callousness will not surprise those who noted with dismay the Government’s closure in 2005 of the Gender Identity Team established in Queen Mary Hospital to care for transsexual patients. This fine unit was disbanded to save money and transsexuals are now left to the varying devices of local hospitals across Hong Kong. 

The Honorable Mr Justice Cheung has reserved judgment in the case, so we will not have his ruling for some time. Whatever its result, this trial has made clear that the Government does not care about the rights of the transgendered and that what they really do care about is preventing same-sex marriage. Ms W has already had to spend over a year fighting for the right to be the woman she had to spend over three years fighting to become. She and her like are sad, collateral casualties in the war over same-sex marriage that has yet to even break out. She has not, though, and will not give up her dream of getting married. Nor will she easily abandon her dream of seeing a Hong Kong in which she and her fellows are treated not as members of an intermediate gender, but as simply women or men. 

Hong Kong

Reader's Comments

Comment #1 was deleted by its author on 2010-08-20 00:50
2. 2010-08-20 00:51  
No surprise the Government wants to deny Ms W to set precedent for future cases and stands on same sex marriages. Sadly Ms W will have to fight a losing battle but she definitely will inspire others to folllow!

Wish you all the best Ms W
3. 2010-08-20 03:15  
Dig deeper and one can be pretty sure that the motivation to deny Ms W the access to marriage by the HK ROM, is rooted in religious fundamentalism.

Once a person decides to go through the legal transition to become the opposite sex, the new gender is legally binding. All other rulings henceforth will follow the new identity. This is clearly a binding process to be protected by a secular government and justice. Otherwise, the very act of the surgery would be illegal and in contempt of public morality in view of the laws. The hospital and doctors can all be sued for accessory to illegal ratification.

The birth certificate simply announces that one has entered into this world. How one evolves and what one becomes of is another thing. The birth certificate is just a birth record-NOT an end's all static instrument to limit & stop an individual's growth in life.

Fight this Ms W. Dig deeper and you will find fundies behind these usual obstacles to people's happiness. It's their calling to "save" morals before they get tossed into hell.
Godspeed to your success and may the FORCE be with you-GOOD luck!
4. 2010-08-20 09:28  
This is always controversial.
To Ms. W, marriage is final destination.
To me, marriage is part of life.
Every person value differently.
i might stay single forever unless Asian same sex marriage becomes common or else migrate to western country to do it.
5. 2010-08-20 18:22  
does marriage really can cement/glue d relationship?

marriage just another human custom, then become law binding issues, when divorce happen, all this lawssss come in - at the end is all abt money, materials n property that tear u apart even u already in heaven.

if u really care abt someone directly or in-directly, write proper will better, don't let the living suffer when u r in heaven (just saying - i dun believe this crap)

if 2 person truly in love, y let superficial customer as "recognition"
6. 2010-08-21 13:58  
Wed, U should look into not just marriage per ser. It is more about inheritage of one's wealth when they break up or one of them pass away someday. This is the key issue of gay marriage. That's why man and woman are required to get married by law for protection especially in financial aspect.

I am proud to be a Canadian. Guys, don't see marriage as marriage. U should see $$ issue. Can u imagine if u live with your boyfriend for 30 years, when he dies, you have to sell your house because half of it was belong to your ex bf. Where are u going to live if u are 60+ years old? Down grade from Condo to flat/apartment? The how do u divide half of your furniture, tv, video, painting, diamond, gold and so on.

It is not about custome in demoncratic society. It was a custom 100 of years ago but not in today's complicated divorce laws.
7. 2010-08-21 14:08  
If u spend your love life with someone is couple of years then the break up is not that bad financially. Can you imagin half of your life spending with your bf without marriage. The one who dies first has no pain, the one who alives will suffer like hell if he is too old to make a living.

That's why Canadian provincial courts allowed gay marriage before Canadian Federal law due to this horrific financial impact of a loving gay couple without the same fairness of treatment when his partner's passing.

Not everyone makes WILL especially younger or middle age gay or straight couples. Therefore gay marriage is as important as straight marriage for financial protections, not for the wedding party.
8. 2010-08-21 17:33  
I don't understand how is this a "same sex" marriage issue when she is clearly a woman.

9. 2010-08-22 01:02  
ya..kazukicanada...that's wat i mentioned...anyway u already said it. lol

well if married not allowed...then write a will for d one who sharing life with u...no big deal. I wonder if will got age limit? or making a will very complicated?
10. 2010-08-22 09:40  
In this respect, at least Singapore appears a bit more advanced.
Section 12 of the Women's Charter (reproduced below) prohibits same-sex marriages but makes an excetption for transgendered persons. (This has been so since 1996). It is the sex of the party to the marriage as stated in the NRIC, not the birth certificate, that is relevant.

Avoidance of marriages between persons of same sex
12. —(1) A marriage solemnized in Singapore or elsewhere between persons who, at the date of the marriage, are not respectively male and female shall be void. [30/96]

(2) It is hereby declared that, subject to sections 5, 9, 10, 11 and 22, a marriage solemnized in Singapore or elsewhere between a person who has undergone a sex re-assignment procedure and any person of the opposite sex is and shall be deemed always to have been a valid marriage. [30/96]

(3) For the purpose of this section —

(a) the sex of any party to a marriage as stated at the time of the marriage in his or her identity card issued under the National Registration Act (Cap. 201) shall be prima facie evidence of the sex of the party; and

(b) a person who has undergone a sex re-assignment procedure shall be identified as being of the sex to which the person has been re-assigned.
11. 2010-08-22 10:33  
wed: your right in your idea that marriage is a custom. But why should anyone be excluded from society?

but more importantly it is the rights that go along with marriage that are important. not sure about all the laws in HK but i do know that in some countries you can't go visit someone who is not a "family member" in the intensive ward of a hospital, you can't make health care decisions or even decide to have surgery if your not married. so let say your spouse ends up in the hospital in a coma. with no chance at recovery. but you can't make the decision and have to leave it to their distraught family who may not even consult you.

money may come into play but the most important issue here is the right to be treated as a human being and not as a freak with no rights.

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