The future of the LGBT community in Honk Kong has recently been provided with a huge boost ever since the judgment of W v. Registrar of Marriages  HKCFA 39 has been delivered by the Court of Final Appeal on 13th May 2013. The Court of Final Appeal found that the decision given by the Registrar of Marriages refusing permission to a woman, who had successfully undergone a sex reassignment surgery, to get married to her long time boyfriend, was in contravention to the right to marry as enshrined in Article 37 of the Basic Law. This decision has changed the face of the rights associated with the LGBT community in Hong Kong. However, the air around the said judgment and its social effects on the legal jurisprudence is still not clear and remains a constant source of debate. This article would focus on how there has been an evolution of the rights of transgender individuals in light of the judgment delivered by the Court of Final Appeal. It would also throw light on the intricacies of the judgment in W v. Registrar of Marriages. It would go on to delve into the effects of the same to the LGBT community in Hong Kong while discussing several other issues, keeping in mind, their fundamental human rights.[i] Moreover, the article would try and elucidate upon the reasoning behind the rejection of the Marriage (Amendment) Bill, 2014[ii].
Changing facets of Transgender Rights : W v. Registrar of Marriages
In Hong Kong, the law as it stands does not allow two people of the same sex to get married.[iii] Prior to the decision in the case of W v. Registrar of Marriages, transgender individuals who have subjected themselves to sex reassignment surgery were not entitled to marry in their new gender as per the existing law in Hong Kong. However, this position of law was altered by the Court of Final Appeal in the said case.
The decision by the Final Court of Appeal was given out after complete perusal of the statutory and constitutional provisions. The court, in a unanimous decision, held that The Registrar was right in his interpretation of Section 21 and Section 40(2) of the Marriage Ordinance in refusing the marriage of W with her partner. However, it was held in the majority decision, with one dissent to the contrary, that the abovementioned interpretation was not in consonance with the principles laid down in Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights, 1991[iv] which guarantees a person’s right to marry. The Court was of the opinion that these provisions pertaining to right to marry should not be construed narrowly and should adopt more of an inclusive approach rather than an undefined approach.
A careful analysis of the majority and minority opinion led to the conclusion that the court concluded by declaring W a “woman” for marriage purposes. It read the relevant laws to include post operative male-to-female transgender individuals in the definition of the word “woman”. More so, it instructed the law making body of Hong Kong to come up with constructive definitions of gender for relevant purposes keeping in mind the rights of spouses in a marriage, rights of children, related discrimination issues and impact of gender change on the institution of marriage. The Court declared that the decision would come in force on the expiry of 12 months from the date of the judgment. The reason for this delay was to give time to the legislature to contemplate amendment of the necessary laws for giving effect to the judgment.[v]
Failure of The Marriage (Amendment) Bill 2014
As a result of the directions given in the judgment of the Court of Final Appeal, the Government of Hong Kong decided to come up with the Marriage (Amendment) Bill 2014. The Bill sought to amend the provisions in the Marriage Ordinance by providing that in cases of sex reassignment surgery being undergone by a person, the resultant sex will be taken as the sex of the person under the marriage ordinance and not the sex at birth. The said Bill was a failure, as it could not be passed in the Legislative Council. However, this did not affect the judgment given out by the Final Court of Appeal in the case of W v. The Registrar of Marriages and post operative transgender individuals were not disallowed to marry in their new gender.
One of the main reasons as to why the Bill was rejected was due to the fact that it was only concerned with gender issues of marriage registrations and not otherwise. The focus of the Bill revolved around matters prior to the marriage registration and did not address any other issues arising after it. It neglected several important gender issues associated with spousal rights, children’s rights and discrimination problems. Moreover, it did not address issues concerning the implications of recognition of such a marriage on issues concerning taxation laws, property laws and succession laws etc. Further, the Bill was also not shown any approval from the opponents of transgender marriages who were apprehensive at the thought of this Bill becoming a stepping stone towards legitimizing same sex marriages in Hong Kong.[vi] Therefore, the scope of the Bill was too narrow and the essence of the Bill only seemed to be exclusively addressing the issue which arose in W v The Registrar of Marriages and not holistically altering the law in the spirit as required by the Court of Final Appeal.[vii]
The burning issue in the Bill was about the compulsory need of undergoing a full sex reassignment surgery in order to become eligible for marriage recognition (See Section 40A of the Marriage Amendment Bill, 2014). There was strong opposition against this requirement as it indirectly forces transgender individuals to undergo a full sex reassignment which has everlasting effects on the body. It is a heavy and a dangerous surgical procedure, which the transgender individuals would be forced to undertake in order to avail their right of marrying.[viii]
The requirement of sex reassignment surgery is in contravention to the interest of transgender individuals[ix] and violates many rights granted to individuals such as the right to marry, their right to reproduce which would be invaded on account of resultant sterilisation from the surgery, their right to privacy and family. All such rights can be found incorporated in Article 37 of the Hong Kong Basic Law[x], the Hong Kong Bill of Rights, the International Covenant of Cultural and Political Rights[xi] and various other legal instruments. Besides these, it is also in contravention to international conventions such as European Convention on Human Rights[xii], Universal Declaration of Human Rights[xiii] and the Convention against Torture, Inhuman or Cruel Treatment or Punishment[xiv].
The Road Ahead
The current need of the hour is a new law which addresses various concerns revolving around the transgender community. The abovementioned issues and flaws identified in the Marriage (Amendment) Bill 2014 need to be re-looked upon with holistic aim of safeguarding the rights of the transgender community in total. It is crucial that the requirement of compulsory sex reassignment surgery is discarded. Moreover, the possibility of adopting a new approach for the same can be looked into. One example is the model adopted in the United Kingdom whereby sex reassignment surgery is not the only criteria, but other factors such as the gender disability issues since birth, lifestyle adopted over the past few years, financial resources of the applicant etc. should also be considered before coming up with a decision regarding the same. Also, the guidelines incorporated in the Yogyakarta Principles, which is the international law relating to sexual orientation and gender identity, should be adopted and incorporated into the legislative framework governing these issues.[xv]
The Unintended Consequences of the Judgement
The plight of transgenders is not limited to the abovementioned issues. Transgender individuals come across number of legal issues ranging from anomalies arising out in criminal law to contractual issues. Problems faced by the transgender community can be found in every sphere of life. [xvi] Issues regarding validity of overseas marriages in Hong Kong and if custody of a child might come into dispute, in such situations, the divorced partner of the transgender individuals might use sex change as a ground for taking away the custody or altering the current custodial arrangement.
In criminal cases pertaining to offences against the body, such as rape, it would become difficult to prove rape on a transgender individual who has undergone sex reassignment therapy to become a female as there is a strong possibility that the court might take into consideration only the sex at birth and not the acquired gender.
As evident from the content above, it can be concluded that the Court of Final Appeal was successful in giving a head start to the evolving discourse pertaining to the need for the protection of rights of transgender community in Hong Kong. However, attempts made following the judgment did not eventuate into anything constructive. To say the least, the judiciary along with the administration and the legislature was in agreement with protecting the right of marriage of the post operated transgender individuals. In a span of few years, the legal jurisprudence with respect to this issue has developed and given the push it needed to promote and protect the interests of transgender community. Now what is required is a well articulated, holistic, and well drafted law encompassing and addressing all the issues as mentioned above. The ultimate goal would only be achieved provided the judiciary, legislature and the executive work in collaboration and act as complimentary to each other in promoting the right of transgender individuals.
This article has been authored by Anuradha Arputham, Advocate in Supreme Court of India with key areas of practice being corporate governance, commercial litigation, public interest litigation.
[i] Michael Ramsden and Luke Marsh, ‘Same-sex marriage in Hong Kong: The case for a constitutional right’ (2015) 19(1) The International Journal of Human Rights 90–103
[ii] ‘Marriage (Amendment) Bill 2014’, (Legislative Council of Hong Kong, 2014) <http://www.legco.gov.hk/yr13-14/english/bills/b201402282.pdf> accessed 24 May 2018
[iii] Dantes Leung, ‘The Prospect of Same-sex Marriage in Hong Kong’  Hong Kong Lawyer
[iv] CAP 383 Hong Kong Bill of Rights Ordinance 1991
[v] Winnie Chan, ‘Transgender marriage in Hong Kong: Reflections on the journey from the CFA’s decision in W v The Registrar of Marriages to the Marriage (Amendment) Bill 2014’ (SSRN, 29 January 2015) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2556703> accessed 24 May 2018
[vi] Jennifer Ngo and Linda Yeung, ‘Conservative Christians and gay-rights activists unite to condemn transgender marriage bill’ (South China Morning Post 2016) <http://www.scmp.com/news/hong-kong/article/1494969/parents-and-teachers-vent-anger-proposed-easing-marriage-bill> accessed 23 May 2018
[vii] Reannon Navaratnam and Isabelle Lee, ‘Same sex marriage in Hong Kong: A right is more than a referendum’ (2015) 3(3) International Journal of Human Rights and Constitutional Studies 220
[viii] Jack Byrne, ‘License to be Yourself: Marriage and Forced Divorce’ (Open Society Foundations 2014) <https://www.opensocietyfoundations.org/sites/default/files/marriage-forced-divorce-20150420.pdf> accessed 22 May 2018
[ix] Equal Opportunities Commission, ‘‘EOC Statement on the Marriage (Amendment) Bill 2014’’ (2014) <http://www.eoc.org.hk/eoc/graphicsfolder/ShowContent.aspx?ItemID=12584> accessed 23 May 2018
[x] Hong Kong Basic Law 1997 (Article 37)
[xi] ‘International Covenant on Civil and Political Rights’, <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>accessed 23 May 2018
[xii] ‘European Convention on Human Rights’, <http://www.echr.coe.int/Documents/Convention_ENG.pdf>accessed 23 May 2018
[xiii] ‘The Universal Declaration of Human Rights’, <http://www.un.org/en/universal-declaration-human-rights/>accessed 23 May 2018
[xiv] ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’, <http://legal.un.org/avl/ha/catcidtp/catcidtp.html>accessed 23 May 2018
[xv] ‘About the Yogyakarta Principles’, (The Yogyakarta Principles, 2007) <http://www.yogyakartaprinciples.org/principles_en.htm> accessed 22 May 2018
[xvi] Robyn Emerton, ‘Country report: Hong Kong’ (Transgenderasia 2002) <http://www.transgenderasia.org/country_report_hk_legal.htm> accessed 23 May 2018