Hong Kong's Court of Final Appeal (CFA) recently addressed the question: Who is a 'woman' for the purpose of marriage? The landmark case is W v. The Registrar of Marriages, FACV 4 0f 2012. W is in her 30's. Having viewed herself as a female since early age, she was diagnosed with gender identity disorder and underwent sexual reassignment surgery (SRS) in 2008. The procedures, performed in Hong Kong hospitals, were funded by the Hong Kong government. Subsequently, she was issued a new identification card and passport indicating her sex as female.

W and her boyfriend want to be married. The relevant ordinance provides that a marriage is "the voluntary union for life of one man and one woman to the exclusion of all others." Following legal advice, the Registrar of Marriages stated that for the purpose of marriage, "the biological sexual constitution of an individual is fixed at birth and cannot be changed, either by the natural development of organs of the opposite sex, or by medical or surgical means." Thus, the Registrar did not consider W as a "woman" for the purpose of marriage and so refused the application since such a marriage would be between persons of the same biological sex and cannot be recognized under Hong Kong law as between one man and one woman. W initiated judicial review challenging this decision. Her challenge failed in the Court of First Instance and the Court of Appeal. She was granted leave to appeal to the CFA.

The CFA decided in favor of W with one justice dissenting. The dissent sided with the Registrar that "man" and "woman" meant biological man and biological woman and could not be extended to individuals whose acquired sex was the result of SRS or other procedures. Justice Chan, the dissenting justice, observed that marriage is an important social institution embedding a relationship between two people of the opposite sex, primarily for the purpose of procreation and establishing a family. It would be difficult and unrealistic to consider marriage as entirely unconnected with procreation as would be necessary where one party's gender is anatomically, but not biologically, acquired.

Although some overseas jurisdictions have considered changing attitudes within their jurisdictions to justify recognition of the right of transsexuals to marry, Justice Chan felt that Hong Kong is different and there is no consensus in Hong Kong for changing the traditional notion of marriage and the marriage institution to accept altering the meanings of "man" and "woman" to include transsexuals. To expand the meaning of marriage to include transsexual marriages is something the CFA should not do lightly and there must be strong and compelling reasons for the Court to make a fundamental change of the meaning of the marriage institution. While the CFA may consider constitutional interpretation to make such fundamental change, Justice Chan noted that there is no consensus in Hong Kong social attitudes toward the institution of marriage to compel the CFA to invoke its power of constitutional interpretation in this case. Thus, it should not do so.

Justice Chan agreed that a comprehensive review of the relevant legislation to address the problems facing transsexuals may be appropriate, but making new policy on social issues is the task of the legislature and not the business of the Court.

The majority opinion, written by Chief Justice Ma and Justice Ribeiro, did not share Justice Chan's concerns about invoking the Court's power of constitutional interpretation. Acknowledging that the Registrar correctly construed the Marriage Ordinance in denying the marriage between W and her boyfriend, the majority felt that this interpretation was incompatible with the right to marry guaranteed by Hong Kong's Basic Law and Bill of Rights. The court did not agree with the Registrar that a person's gender is determined at birth or that biological sex at the time of birth is immutable. Determining sexuality must also take into account the person's psychological and social aspects and requires a full and appropriate assessment of the sexual identity, particularly where the person, such as W, has undergone irreversible sex reassignment surgery. The Court ruled that denying a post-operative transsexual woman the right to marry a man impairs the very essence of the right to marry and is therefore unconstitutional.

The Court also took issue with the necessity of procreation as the basis of marriage. It pointed out that procreation has never been a condition for marriage and in present day multi-cultural Hong Kong, procreation is no longer even considered as essential to marriage. The CFA reasoned that there is "no justification for regarding the ability to engage in procreative sexual intercourse as a sine qua non of marriage and thus as the premise for deducing purely biological criteria for ascertaining a person's sex for marriage purposes." It concluded that preventing a transsexual woman the right to marry in her acquired gender by denying her status as a "woman" is simply wrong.

Regarding the need for societal consensus before changing the meaning of the fundamental right of marriage, the Court stated 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." "Reliance on the absence of a majority consensus as a reason for rejecting a minority's claim is inimical in principle to fundamental rights."

The court concluded that W is entitled to be considered a "woman" for the purpose of marriage. It ordered that W be so certified and thus eligible to marry a man. In addition, it ordered that the relevant ordinances be read to include within the meaning of the words "woman" and "female" post-operative male-to-female transsexual persons whose gender have been certified by an appropriate medical authority to have changed as a result of SRS. It left open the question of whether a transsexual person who has undergone less extensive treatment may also qualify.

Recognizing the ramifications of its judgment, the CFA invited the legislature to establish the means to define gender for marriage and other purposes. The Court stayed enforcement of its orders for 12 months so that the legislature may take the opportunity to consider new legislation. It also asked the legislature to consider the impact of a legally certified gender change on existing marriages, existing spousal rights, children's rights, entitlements to benefits and pensions, discrimination, succession, sports and other gender specific matters. The CFA warned that if legislation does not eventuate, the judiciary is fully within its power to decide such important questions on its own.

Will the Legislative Council take up the challenge?

It is one thing for the CFA to protect guaranteed rights of minorities by its judgments, but legislators must deal with constituents and special interest groups who disagree with extending the right of marriage to transsexuals. We will see if the legislature will pick up the gauntlet.