W v Registrar of Marriages
W v Registrar of Marriages was a landmark court case for LGBT rights in Hong Kong. In a 4:1 decision, the Court of Final Appeal gave transgender people the right to marry as their identified gender rather than their biological sex at birth.
Background
The applicant of the case was only identified as W and born as a male. However, W was subsequently diagnosed with gender dysphoria. W started receiving medical treatments since 2005. After having successfully undergone sex reassignment surgery in 2008, she was issued with a new identity card and a passport reflecting her sex as female. In November 2008, W hired a lawyer to confirm with the Registry of Marriages whether or not she could marry her boyfriend. W was denied.The Registrar denied W to marry her boyfriend because of her sex at birth as male. Hong Kong does not allow same sex marriage. The Government only accepted one's biological sex on the birth certificate for marriages purposes, regardless of one's current identity card or passport.
Subsequently, W believed the Registrar's refusal had violated her constitutional right to marry as well as her right to privacy and brought the case to court for judicial review. In the Court of First Instance, Justice Andrew Cheung upheld the Registrar's decision, and the Court of Appeal dismissed an appeal; thus W appealed her case to the Court of Final Appeal. On 13 May 2013, the Court of Final Appeal overturned the Register's decision and held that W could marry her boyfriend. The Court of Final Appeal, however, issued a stay to put the decision of letting W to marry her boyfriend on hold for a year to allow time for the Government to amend the law.
Important facts
The Court of Final Appeal observed the following facts.- Transsexualism is a medical condition identified by the Hong Kong government as well as WHO under ICD-10.
- In the medical field, one's sexual identity consists of a list of both biological and psychological identity
- The only accepted therapy for transsexualism involves a series of hormonal treatments as well as sex reassignment surgery.
- Sex reassignment surgery is irreversible, publicly funded, and managed by the Hospital Authority.
- The Hospital Authority will issue a 'sex changed certificate' after sex reassignment surgery.
- The Immigration Department will issue a new identity card and a passport to individuals with 'sex changed certificates' issued by the Hospital Authority or by overseas government agencies.
Major issues
The Court of Final Appeal was presented with two issues to solve in the case:- Issue 1
- Issue 2
Related statues and precedent cases
| Precedent Referred to in Current Case | Points Referred to in Precedent |
| Hyde v Hyde |
|
| Corbett v Corbett |
|
| Goodwin v UK |
|
Arguments and reasoning
Issue 1
The following table lists out the government's arguments to demonstrate that the Registrar did not misunderstand the meaning of the words ‘woman’ and ‘female’ in the two Ordinances as well as the Court's reasoning related to each argument.| Government's Arguments | Court of Final Appeal's Reasoning |
| Hong Kong defines marriage as in Corbett, which derived the definition from Hyde, based on the Christian definition of ‘the voluntary union for life of one man and one woman to the exclusion of all others’. | |
| The Registrar should use Corbett’s criteria to determine W’s sex because the Ordinances were enacted in light of that case. | Agreed and accepted |
| Using Corbett, the Register did correctly construe the Ordinances and accordingly refuse W to marry her boyfriend. | Agreed and accepted |
| The ordinary and dictionary meaning of the word ‘women’ does not include transgender women; and the Ordinances should be so construed. Also, normally, if there should be any updates of meanings, the legislature will always do so. Yet, it has not and there is no evidence for such need. | When construing a legal provision, the ordinary meaning of a word should not obscure the context and purpose of that provision. Since the Court construed the law from the perspective of the legislative intention in this case, the Court chose not to address this argument. |
| Since non-consummation is a legitimate reason to void a marriage, it shows that procreation is an important characteristic and purpose of marriage. | Consummation is defined as full sexual penetration even without any emission or conception. And because of the fact that transgender women do have the ability to have sex, the Court found this argument irrelevant to this case. |
| If construing the law in a way other than applying Corbett, it would involve a lot of ramifications. Thus, it should be left to the legislature to decide. | Since the Court found the Registrar had correctly construed and applied the law, the Court refused to address this argument. |
Issue 2
In the attempt to resolve Issue 2 of whether the Registrar's understanding of the Ordinances had been unconstitutional as infringing the rights to marry and to privacy, the Court broke down the analysis as in the following table and so found them unconstitutional.| Government's Arguments | Court of Final Appeal's Reasoning |
| Instead of treating the right to marry as an absolute right, the Court saw it as a strong right which means that it may be subject to other legal regulation. The Court, however, emphasised that such legal regulation must not do so in a way that would impair the essence of the right to marry. | |
| In construing the right to marry in Article 37 of the Basic Law and in Article 19 of the Bill of Rights Ordinance, the Court accepted that the two articles were the same in substance in different phrasing. The Court also noted that both of these articles guaranteed the right to marry and the right to found a family with an emphasis that the second component of founding a family was not a prerequisite for the right to marry. | |
| The Court noted the European Court of Human Rights’ decision in Goodwin, with the House of Lords’ approval, overturned Corbett. The Court quoted that ECtHR had found ‘that it is artificial to assert that post-operative transsexuals have not been deprived of the right to marry as, according to law, they remain able to marry a person of their former opposite sex. The applicant in this case lives as a woman, is in a relationship with a man and would only wish to marry a man. She has no possibility of doing so. In the Court's view, she may therefore claim that the very essence of her right to marry has been infringed’. | |
| The Government argued that the framers of the Basic Law and the Bill of Rights Ordinance, incorporating ICCPR, implicitly adopted the Corbett’s definition in terms of marriage and one's sex as well when drafting them. The Court should thus so construe. | The Court held a different view and reasoned that the Basic Law and the Bill of Rights Ordinance were living instruments intended to meet ever changing needs and circumstances; even the framers had had Corbett’s definitions in terms of marriage and one’s sex in their minds when drafting the constitutional documents, the changes in societal perception of marriage, particularly the abandonment of the concept of procreation being essential to marriage, called for re-examination of the applicability of Corbett. |
| The Government repeated the argument made earlier that any way of construing the Ordinances other that using Corbett should be left to the legislature to decide. | The Court observed evidence showing the advance in medical knowledge of and the change in social attitudes towards transsexualism. And such advancement demonstrated the inadequacy of Corbett’s definitions. Instead of considering only biological factors, it should take into account of all aspects, including biological, psychological, and social elements, when assessing one’s sex. This inadequacy unconstitutionally impaired transgender people’s right to marry. The Court was thus constitutionally compelled to act. |
| The Government argued that the Court should not rule until there had been a general consensus allowing transsexuals to marry among Hong Kongers. | The Court refused to accept such rationale and explained that the ‘reliance on the absence of majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights’. The Court also emphasised that ‘it is one thing to have regard to such changes as a basis for accepting a more generous interpretation of a fundamental right and quite another to point to the absence of a majority consensus as a reason for denying recognition of minority rights.’ |
Holding
- Issue 1
- Issue 2
Court's orders
Judicial remedies
The Court of Final Appeal issued the following orders:- A declaration that W is entitled to be included in the meaning of the word ‘woman’ in Section 20 of the Matrimonial Causes Ordinance and in Section 40 of the Marriage Ordinance to marry a man.
- A declaration that the meaning of the words of ‘woman’ and ‘female’ of the Matrimonial Causes Ordinance and of the Marriage Ordinance should include post-operative male-to-female transsexuals with certificates issued by medical authorities testifying their change of gender as a result of sex reassignment surgery.
- A stay for a year for the two declarations going into effect.
Court's suggestion for legislation
In addition to the two declarations and a stay, the Court left open the question of at which point a transsexual should be considered to successfully have the sex changed for marriage purposes as well as for other legal areas. The Court agreed that it would be particularly beneficial for enacting primary legislation to address this problem. The Court also suggested the Government to consider the UK's Gender Recognition Act 2004 in addressing this problem.Significance
- Transsexuals who are certified by either local or foreign medical authorities to successfully have their sex changed are entitled to marry in their acquired sex.
- The right to marry and the right to found a family are two independent rights, rather than a prerequisite to one another, even they exist within the same provision of the law.
- The case creates a precedent that the lack of consensus cannot be cited as a reason to deny minority's fundamental rights.