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5 Oct 2010

Hong Kong: Transgender woman loses court bid to marry boyfriend

In the first case of its kind, a 20-something transgender woman who brought a legal case against the government in the hopes of establishing her right to marry her boyfriend has lost her case.

Hong Kong High Court Judge Andrew Cheung ruled on Tuesday that it was not an issue for the courts to decide as the Marriage Ordinance says marriage can only be a union between a man and a woman – as defined by the applicants’ birth certificates.

The Chinese woman who is only identified in the media as “W” initiated the legal challenge after 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 "male."

According to an AFP report, Monica Carss-Frisk, a British Queen's Counsel hired by the Hong Kong government for the case, said the existing law did not accommodate transgender marriage.

"If there is a desire to change attitude, then the legislature can seek to do that," she told the Court of First Instance. "What the court is doing here is to simply look at what the law is at the moment."

Carss-Frisk warned that any judicial attempt to broaden or re-interpret the legal definition of "man" and "woman" would create uncertainties in the law.

The 20-something woman is reportedly one of a few people to have undergone government-subsidised sex-change surgery in a public hospital, and had “new” her gender reflected on her identity card.

She said in an interview with Fridae published in August: “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.”

The AFP report quoted Judge Cheung as saying that there was insufficient evidence "to demonstrate a shifted societal consensus in present-day Hong Kong regarding marriage to encompass a post-operative transsexual".

He added that "the court must not rush to substitute its own judgment in place of that of... the government or legislature in Hong Kong".

“W's” lawyer Michael Vidler, who has taken on several high-profile LGBT-rights related cases in Hong Kong, said in an interview in Asia Times that a government that funds both the therapy and surgery should then recognise and honour a transsexual's new identity.

AFP quoted the South China Morning Post which reported that 29 people underwent sex reassignment surgery between 2000 and 2009 in Hong Kong, but others are believed to have travelled overseas for the surgery.

Mainland China, Singapore, Malaysia and Japan already allow transsexual people to marry the opposite sex in their “new” gender.

Hong Kong

读者回应

1. 2010-10-05 20:07  
someone should throw them an unofficial wedding ceremony anyway just for trying and a nice wedding banquet too with lots of good music and food
2. 2010-10-05 23:22  
I really don't think that is the point. A wedding does not a marriage make.
3. 2010-10-05 23:29  
if can, go countries that accept transgender marriage.
Asia countries is working on it...
4. 2010-10-06 07:12  
I know what lagunabro is trying to say... the couple should go ahead and have a commitment ceremony, publishing the photos of them together. Then again, the reason W doesn't publish her name or identity is to help conceal her identity. Too bad there is no protection from discrimination in the work place.

If the government supports and pays for sex-reassignment surgery (involving years of therapy and psychiatric assistance, they should also allow couples to marry under their newly assigned gender. It will NOT lead to same-sex marriage, which I think they are afraid of.

Thank you, Michael Vidler, for his continual support and champion of LGBT rights. Keep up the fight!
5. 2010-10-06 09:29  
Seriously, Hong Kong?! But they're not even a Christian country! Unless these policies are leftovers from the days of British rule...
6. 2010-10-07 02:40  
#5- You're absolutely right.

HK may not be officially Christian, bt they've absorbed much of the bad habits of their colonial British Masters ...just like Singapore. LOL
7. 2010-10-07 05:20  
Sadly, many holding upper civil service positions in the HK legislature are...ahem...X-tians...just like in ahem...Singapore. Zzzz. Go figure.
8. 2010-10-08 09:55  
Humm kinda odd cause I thought that in the Usa if you had the surgery & had your id's changed that you could then legally marry. I am kinda shocked cause I think HK was way ahead of the usa.
9. 2010-10-10 09:54  
Bravo! We need more LGBT people in Singapore to challenge the status quo too. For example, recently, a human rights lawyer is challenging the constitutionality of 377a. If we don't test the water, we don't know how deep it is. Moreover, in Singapore, I doubt that any political party would be much willing to risk losing votes from the conservative majority by repealing 377a. So, a more politically right approach to challenging 377a might be done in court.
10. 2010-10-11 23:58  
I LIKE THIS LAST STATEMENT :

"Mainland China, Singapore, Malaysia and Japan already allow transsexual people to marry the opposite sex in their “new” gender."
11. 2010-10-13 00:25  
#10: Nt sure abt Japan or Mainland China... bt Singapore & Malaysia???? Highly doubtful...not too long ago, a Malaysian transsexual's marriage to her British fiancé was declared 'non-valid' and could face action under sharia, forcing her to seek asylum in Britain:

http://madikazemi.blogspot.com/2010/07/uk-malaysian-transsexual-married-to.html

In Singapore, I've not come across such reports - prolly due to censorship, hahaha....bt I have a hunch...the outcome won't be too different fr that of Malaysia. All my trans friends, they don't live here as soon as they are able to support themselves....
12. 2010-10-17 19:02  
"a government that funds both the therapy and surgery should then recognise and honour a transsexual's new identity".

That makes purrrrrrrrrfectly good sence'

"Bloody amazing" thats all I can say

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