28 Nov 2011

Setback to transgender rights in Hong Kong

The plaintiff, publicly known as Ms W and who has since 2008 been fighting for her the right to marry, will now take her case to the Court of Final Appeal after the Court of Appeal last Friday refused her the right to legally marry a man.

On 19 August 2010, Fridae carried a report on the judicial review held in Hong Kong of the right of a transgender person to marry in his or her new gender. The case had been brought by Ms W, a young woman who was born male but had undergone irreversible sex re-assignment surgery in a public hospital. She had been issued an ID card recording her gender as female, her school certificates had been altered to record her as female, but the Government had refused to alter her birth certificate and the Registrar of Marriages had refused to allow her to marry her boyfriend. In the Court of First Instance, Justice A. Cheung rejected her case that the Registrar had misconstrued the Marriage Ordinance and that the prohibition of her right to marry contravened the Basic Law, Hong Kong’s constitution.

Ms W appealed, and her case was heard in the Court of Appeal on 12 and 13 October before the Honourable Justices of Appeal Robert V.P. Tang, Michael J. Hartmann and Joseph J.A. Fok. Judgment was handed down on 25 November, and was a huge disappointment for Ms W, for Hong Kong’s transgender community and for all those here who advocate human rights. The Court of Appeal dismissed Ms W’s appeal.

The case is not yet over, for Ms W and her legal team of solicitor Michael Vidler and barrister Philip Dykes SC have stated that they will now appeal to the Court of Final Appeal.

The Judgment handed down on the 25th is sober reading as it makes it plain that this is still very much an uphill struggle. Whilst Justice Cheung had been characterised in some circles as a ‘conservative’ judge, this was not an accusation that could have been levelled at the three Appeal Court Justices. Michael Hartmann, for instance, was the judge who had changed Hong Kong’s age of consent laws to make them equal for same-sex and heterosexual relations in the Billy Leung case. The Judgment given in Ms W’s appeal makes it clear that the judges had a good understanding of sex, gender and sexual orientation and had much sympathy for Ms W’s plight.

However, they unanimously ruled that Hong Kong’s Marriage Ordinance, which specifies that marriage is between two persons of the opposite sex, had been enacted at a time when this had been legally construed to exclude transgender persons. The relevant case was Corbett v Corbett, the notorious British trial of the 1970s, when transgender model April Ashley had her marriage annulled at her husband’s request as the court held her still to be a man. Therefore, the appeal court judges ruled, the Hong Kong Registrar of Marriages had correctly interpreted Hong Kong law.

To rule otherwise, the judges believed, would be to change the law of Hong Kong, and this, they felt, was something that should be left to the Legislative Council.

Similar arguments applied to the appellant’s case that the Basic Law’s guarantee of the right of all Hong Kong residents (it does not specify sex or gender) to marry had been contravened. The Basic Law had also been written when Corbett v Corbett applied to Hong Kong. Strangely, and ominously for future arguments about same-sex marriage in Hong Kong, the fact that Ms W’s team had explicitly accepted that they were not making a case for same-sex marriage was held against them here. The judges reasoned that as Ms W accepted that the Basic Law guaranteed the right to marry only to those of different genders, and that as when it was written it would have regarded her as male, it did not therefore guarantee her right to marry her male partner.

So, as Ms W’s legal team point out, until and unless this judgment is overturned in the Court of Final Appeal, this decision means that Hong Kong now stands alone, as an island amongst a sea of neighbours who recognise the right of someone like her to marry. China, Taiwan, Singapore, Korea, Thailand, New Zealand and Australia all recognise the right of women like W to marry, as do all the countries of the European Union. Hong Kong stands increasingly isolated in the international community of advanced nations in not recognising these rights.

Hong Kong’s justice system may be correctly interpreting the law, but it is not doing justice to a woman who cannot marry. It does so in full knowledge that Hong Kong’s conservative administration and toothless Legislative Council will take no steps in the near future to remedy this situation. That administration had the gall to express its view at the original hearing that although it had in effect created Ms W’s condition by paying for her surgery, that was enough, ad it felt no obligation to ameliorate her lot further by letting her marry. As an indication of the government’s intent that remains chilling.

For those of us interested in the eventual introduction of same-sex marriage in Hong Kong, this judgment, too, is an indication that the legal route is unlikely to be a successful one. I remarked in my original report on the Ms W case that the motivation behind the Government’s fierce and financially-expensive opposition to Ms W’s case was its seemingly unrelated but actually visceral refusal to countenance same-sex marriage. Elements of this seem to have re-appeared at the appeal. Until the older, Christian-riddled generation in the Hong Kong establishment is replaced by younger people with wider understanding, or until China itself leads the way, the struggle for same-sex marriage will be long and bitter.

Hong Kong