A transsexual woman won a groundbreaking appeal in Hong Kong's top court yesterday allowing her to marry her boyfriend and forcing the government to rewrite marriage laws.
The Court of Final Appeal ruled by a four to one majority that the appellant - who was born male and is now a woman in her 30s and known as "W" - should be allowed to marry her boyfriend, as the nature of marriage has undergone immense changes and the key role for marriage to give children has also diminished.
It overturned earlier court rulings that marriage is only allowed between couples who are of opposite sex at birth.
"The right to marry guaranteed by our constitution extends to the right of a post- operative transsexual to marry in the reassigned capacity," said the ruling, co- written by Chief Justice Geoffrey Ma Tao-li and Justice Robert Ribeiro.
The Registrar of Marriages earlier ruled that W, who underwent sex change surgery more than five years ago, could not marry her boyfriend because her birth certificate says she is a man and therefore does not have a child-bearing capacity.
The Court of Final Appeal said it is contrary to the principle of fundamental rights to focus merely on biological features at the time of birth and that the Basic Law and Bill of Rights protect the right to marry.
The judgment said the Marriage Ordinance and the Matrimonial Causes Ordinance are unconstitutional as they fail to give proper effect to the constitutional right to marry. Denying a transgender woman like W the right to marry a man precludes her from marrying at all. This "impairs the very essence of W's right to marry," the court said. Ma, Ribeiro, and non-permanent judges Kemal Bokhary and Lord Hoffman ruled in favor of W's appeal. Justice Patrick Chan Siu-oi dissented.
W is entitled to be included as "a woman" under relevant provisions and eligible to marry a man. But the highest court stayed the ruling implementation for 12 months so that the government will have time to amend the laws as necessary.
Justice Chan, however, said the marriage system is based on the majority view of society. He failed to see any evidence that the majority view has changed. "Nor is there evidence on the degree of social acceptance of transsexualism." Accepting W's appeal will effectively mean a new policy, he added.
W said that "this is a victory for all women in Hong Kong."
Her lawyer Michael Vidler said it is a landmark decision. "This is a case about sexual minorities being recognized and that their rights are just as important as everyone else's," Vidler said.