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.