W v. Registrar of Marriages, Hong Kong Court of First Instance (5 October 2010)
Petition for judicial review of a decision by the Hong Kong Registrar of Marriages to refuse to grant the applicant, a transgender woman, a licence to marry her male partner.
The applicant was registered at birth as male. From 2005 to 2008 the applicant received psychological and medical treatment including hormone therapy and eventually underwent sex reassignment surgery. The treatment was funded and provided by the State-run Hospital Authority. Following the surgery, the applicant was issued with an official medical letter which certified that she had undergone the procedure and stated that her gender should now be considered female. The applicant changed her name by deed poll and had her educational records and personal identity card altered to reflect her acquired female gender. She was not, however, legally permitted to amend her birth certificate.
When the applicant sought to marry her male partner, the Registrar of Marriages refused on the grounds that she was a man. The refusal was based on sections 21 and 40 of the Marriage Ordinance, which were construed to mean that marriage could only be a union between a man and a woman. In addition, although the legislature provided no definition of the terms ‘male’ and ‘female’, section 20(1)(d) of the Matrimonial Causes Ordinance rendered void marriages in which the parties were not of the opposite sex.
Whether the Marriage Ordinance permitted a transgender woman to marry a man; whether, alternatively, the restriction on the right of a transgender individual to marry a member of his or her birth sex was inconsistent with the right to marry in the Basic Law or the ICCPR as enacted in Hong Kong through the Bill of Rights.
Basic Law of Hong Kong, Articles 37 (protection of marriage) and 39(1) (incorporation of the ICCPR into the law of Hong Kong).
Hong Kong Bill of Rights, Articles 14 (protection of privacy, family, home, correspondence, honour and reputation) and 19(2) (recognition of the right of men and women of marriageable age to marry).
Hong Kong Marriage Ordinance, Sections 21 and 40.
Hong Kong Matrimonial Cause Ordinance, Section 20(1)(d).
Attorney-General v. Otahuhu Family Court, New Zealand High Court, 1995 (holding that where a person has undergone surgical and medical procedures that have effectively given that person the physical conformation of a person of a specified sex, there is no lawful impediment to that person marrying as a person of that sex).
Bellinger v. Bellinger, England and Wales Court of Appeal, Civil Division, 2001 (determining sex based on biological factors).
Bellinger v. Bellinger, House of Lords, United Kingdom, 2003 (criticising Corbett v. Corbett but holding that the question of gender recognition should be left to the legislature).
Corbett v. Corbett (Otherwise Ashley), Probate, Divorce and Admiralty Division, United Kingdom, 1970 (holding that sex was biologically fixed at birth and could not be changed by medical or surgical means)
In Re Kevin (Validity of marriage of transsexual), Family Court of Australia at Sydney, 2001; Attorney General (Commonwealth) v.“Kevin and Jennifer”, Full Court of the Family Court of Australia at Sydney, 2003 (declining to follow Corbett v. Corbett, the Court took the view that psychological factors take precedence over biological factors, and stated that: “where a person’s gender identification differs from his or her biological sex, the [psychological] should in all cases prevail. It would follow that all transsexuals would be treated in law according to the sex identification, regardless of whether they had undertaken any medical treatment to make their bodies conform with that identification”).
MT v. JT, Superior Court of New Jersey, United States, 1976 (recognising the marriage of a post operative male to female transsexual).
European Convention on Human Rights, Articles 8 (right to respect for private and family life) and 12 (right to marry).
International Covenant on Civil and Political Rights, Articles 17 (right to privacy) and 23 (right of men and women of marriageable age to marry).
Goodwin v. United Kingdom, ECtHR, 2002 (holding that classifying post-operative transgender persons under the sex they had before surgery violated Articles 8 and 12 of the European Convention).
Schalk and Kopf v. Austria, ECtHR, 2010 (holding that a same-sex couple without children constituted a family and were protected by the right to the family and private life guarantees of Article 8; finding no right of a same-sex couple to marry under Article 12).
Reasoning of the Court
The Court used the principles of statutory interpretation to frame its discussion of whether the Marriage Ordinance encompassed post-operative transsexuals. The decision was explicitly guided by the Court’s desire to adopt a construction that gave effect to the intent of the legislature. The Court observed that the Marriage Ordinance, by virtue of its foundations in Hong Kong’s colonial past (as part of the British Commonwealth), reflected a Church of England tradition. The Marriage Ordinance created an institution that could only be constituted by partners of the “biological opposite sex”. The Court also noted that within this tradition there was a particular emphasis on procreation.
Having determined that marriage in the Marriage Ordinance was restricted to opposite-sex partners, to the Court then determined whether the applicant could be defined as female for the purpose of marriage and thus enter into a marriage, or whether the marriage would be akin to a same-sex union and was thus prohibited. The Court considered the 1970 holding in Corbett v. Corbett that, for the purpose of marriage, sex was determined by biological criteria and was fixed at birth. This had the effect of excluding post-operative transsexuals from marrying under British law. Hong Kong’s Marriage Ordinance had its genesis in the same marriage law that was considered in Corbett and the Court regarded the subsequent enactment of the Nullity of Marriage Ordinance 1971 (United Kingdom), as adopted in Hong Kong through section 20(1)(d) of the Marital Causes Ordinance, to be statutory recognition of the decision. Thus Corbett continued to represent the state of the law in Hong Kong.
The Court considered whether the definition of marriage should be extended to encompass post-operative transsexuals. The Court acknowledged that social change and decisions of the European Court had led to changes in the United Kingdom such that Corbett was no longer good law there. However, courts in the United Kingdom had left it to the legislature to decide how to provide recognition. The Court emphasised the boundaries of its role as interpreter of the law. It was concerned with the public policy ramifications that a finding for the applicant might have for the institution of marriage and its legal rights and obligations. The Court decided that, if a gap had opened between the legal status quo and social attitudes, it was the prerogative of the legislature and not the courts to address it.
The Court then turned to the applicant’s alternative argument that, in so far as it did not permit a post-operative transsexual to marry in his or her acquired gender, the Marriage Ordinance was unconstitutional. An argument raised by the applicant, that the right to privacy under Article 14 of the Bill of Rights was relevant to the proceedings, was dismissed on the basis that it did not add anything to the case. The Court held that the applicant’s case would “stand or fall” on the Court’s interpretation of the scope of the right to marry. The Court reasoned that it would be a “very strange result” if the more general right to privacy was interpreted to provide rights held to be excluded by the more specific provisions for marriage. In concluding that the right of a transsexual to marry could not be based on the right to privacy, the Court distinguished the case of Goodwin v. United Kingdom and relied on the decision in Schalk and Kopf v. Austria. The Court reasoned that the claim in Goodwin had not been focused on the right to marriage but rather on the general recognition of “a post-operative transsexual’s acquired gender”, thus making the right to privacy relevant to that case.
The Court’s decision focused primarily on the right to marry under Article 37 of the Basic Law, which provided that “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”, and Article 19(2) of the Bill of Rights, which provided that “the right of men and women of marriageable age to marry and found a family shall be recognised”. The Court held that both Articles should be construed to refer to opposite sex marriage even where no gender was specified. The applicant did not contest the prohibition on same-sex marriage but, rather, sought recognition of her acquired gender for the purpose of marriage. In other words, she sought to enter into an opposite-sex union.
In the Court’s opinion, the relevant question was whether the terms “man” or “woman” within the Basic Law or in the Bill of Rights included transgender men and women. The Court recognised that marriage was an evolving institution that was “necessarily informed by the societal consensus and understanding of marriage and the essence thereof in that society”. It noted that scientific understanding of gender had evolved to include a transsexual’s acquired gender but did not find this to be a decisive factor. Instead, the judgment focused on whether the societal consensus in Hong Kong was at a point where it could accept a legal definition of marriage that encompassed post-operative transsexuals. Despite the movement of European jurisprudence in that direction, the Court held that no consensus on the issue existed under the ICCPR or in Hong Kong. The Court found that, although the government facilitated treatment for transsexuals and allowed gender change to be recognised on all documentation except birth certificates, this did not constitute acceptance of an extended understanding of gender within the right to marriage.
The Court found for the Registrar of Marriages.
W v. Registrar of Marriages, Hong Kong Court of First Instance (full text of judgment, PDF)
W v. Registrar of Marriages, Hong Kong Court of Appeal (full text of judgment in Court of Appeal, PDF)