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.