In Asia, marriages exist as unions between DNA men and DNA women: 48 out of the region’s 51 territories agree on this point.
But the issue is more complex if one of the individuals has changed sex.
Such a case wound its way through Hong Kong courts, creating some interesting issues of law, says top legal analyst Henry Litton. From a legal point of view, some decisions may simply be wrong, he explains.
WHEN IS A MAN NOT A MAN? Are judges arbiters of family values?
This article deals with the case of W v Registrar of Marriages [HCAL 120/2009, FACV 4/2012]. The legal proceedings began in October 2009 as an application to the High Court for judicial review to challenge the Registrar’s refusal to recognise the applicant’s capacity to marry under the Marriage Ordinance (Cap 181). The judge of first instance Andrew Cheung J rightly described it as raising “questions of some general public importance”.
By the time the Court of Final Appeal (CFA) had dealt with it in May 2013, nine senior judges had given thought to those questions. The four judges of the High Court (first instance and intermediate appeal) were unanimous in dismissing the application.
But in the CFA, the applicant finally won, by a majority of 4-1; not because the Registrar was wrong, but on “constitutional” grounds.
“WHAT IS A WOMAN?”
As the proceedings wound their way through the hierarchy of courts, much law was discussed and analysed; in particular, jurisprudence coming from Europe and various common law countries.
But at the heart of the case is not a question of law; it is one of hard fact which could only be answered by an understanding of popular culture. The question before the court in stark terms was simply this: “What is a woman?” and, for that matter, “What is a man?”.
Had such a question been put 40 years ago in Hong Kong, it would have been treated as a bad joke. But in light of the advance of medical science in the course of those 40 years, in the field of transsexualism, or gender identity disorder (GID), or dysphoria, all meaning the same thing, the question is very real.
For the vast majority of people, gender identity is not a problem. But, according to the evidence accepted by Andrew Cheung J, there is a tiny minority of people who genuinely do not accept their own gender.
“One is not talking here about sexual orientation, i.e. preference for sexual relationship with a male or a female. One is concerned with people who are unhappy with, and indeed do not accept, their own biological sex,” as the judge explained. They feel trapped within the wrong body. There are, of course, degrees of affliction, but extreme cases have led to self-mutilation and suicide.
As the judge found, from the voluminous material placed before him, transsexualism cannot be cured, in the sense that the subjective belief about the person’s own gender cannot be changed by medical or psychological treatment. Some tolerate it. Others seek partial relief from hormonal treatment, a few undergo the long and painful process called sex reassignment surgery (SRS).
GOVERNMENT TOOK STEPS
As the science of SRS evolved and became more sophisticated in the Western world, the Hong Kong government recognised the need to deal with GID. In about May 2005 the Home Affairs Bureau set up the Gender Identity and Sexual Orientation Unit. Protocols were established for processes leading up to SRS to take place at hospitals run by the Hospital Authority. The protocols were necessarily strict as, beyond a certain point, SRS is not reversible. The programme is publicly funded.
As transsexualism is not treatable, the best the local medical profession could offer was to make the patient’s body to align as closely as possible with that person’s self-perception regarding gender.
No-one is admitted to the programme before the age of 21.
The management of persons with the relevant symptoms begins with a full psychiatric assessment. This could take months. If the diagnosis of GID is confirmed, the patient is required to go through “real life experience”, living in the preferred gender for about two years while having hormones of the opposite sex administered. At this stage, the process is reversible. It is only after this stage is completed that surgery is considered.
As regards surgery generally, no success is ever guaranteed; particularly so in the case of SRS.
For male-to-female reassignment, it involves first of all orchidectomy (removal of both testes); patients may chose to discontinue at that stage.
The next stage is far more intricate and problematic: penectomy, removal of penis, preserving as far as possible the nerve-ends and creating a simulated vagina capable to some extent) of experiencing erotic sensations.
As Dr Albert Yuen Wai Cheung, Consultant Surgeon at Ruttonjee Hospital explained: “…surgery cannot remove the prostate organ or provide a functional uterus or ovaries, or otherwise establish fertility or child bearing ability. Neither can it change the sex chromosomes of the person, which remains that of a male (XY).”
That is as far as “sex change” can achieve in male-to-female SRS. It can never create a full and complete “woman”. The process for reassignment female-to-male is even more intricate and problematic.
If SRS is successful in the clinical sense, the Hospital Authority issues a letter certifying that the patient’s gender has been changed. Based upon this, the Registrar of Persons would issue a new ID card reflecting the changed gender. Likewise a new passport can be issued. But the sex at birth cannot be altered in the birth certificate.
FACTS OF THIS CASE
The applicant was born in Hong Kong in September 1975. A male, leading life as far as one can tell as a toddler, then a little boy, and later into adult manhood. But, from an early age, the applicant felt himself a female: a classic case of transsexualism. Nothing is known about the applicant’s education or career as he attained adulthood. Given the nature of the legal proceedings – judicial review – the applicant gave no oral testimony from which such matters could be explored.
The applicant was admitted to the SRS programme in 2005 when he reached 30 years of age: probably one of the first in Hong Kong to do so.
In January 2007 he had orchidectomy (removal of testes) in Thailand. The applicant changed name to a more feminine one by deed poll that year, and underwent a period of “real life experience” living, as far as possible, as a woman, receiving hormone treatment.
After further psychiatric assessment by government doctors, the applicant was recommended to undergo SRS. This took place in 2008. The operation was considered successful clinically. A letter stating the change of gender to FEMALE was signed. A new ID card with the new name and sex (female) was issued. The applicant’s education records were likewise altered.
In the same year, 2008, the applicant developed a relationship with a man and wished to marry him. Inquiries through solicitors with the Registrar of Marriages brought this response:
“Marriages in Hong Kong are governed by the Marriage Ordinance, Cap 181, Laws of Hong Kong. Section 40 of the said Ordinance provides that every marriage under the Ordinance is a formal ceremony recognised by law as involving the voluntary union for life of one man and one woman to the exclusion of all others. According to our legal advice, 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. The Registrar of Marriages is not empowered to celebrate the marriage between persons of the same biological sex. For the purpose of marriage, only an individual’s sex at birth counts and any operative interventions is ignored”.
THE STATUTORY PROVISIONS
Section 40 of the Marriage Ordinance (MO) says:
“(1) Every marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage.
(2) The expression ‘Christian marriage or the civil equivalent of a Christian marriage’ implies a formal ceremony recognised by law as involving the voluntary union for life of one man and one woman to the exclusion of all others”.
The reference to “Christian marriage” harks back to the times when procreation and nurture of children were prominent features of marriage.
This is reflected in s.20(1)(d) of the Matrimonial Causes Ordinance ( MCO ) which says:
“A marriage which takes place after 30 June 1972 shall be void on any of the following grounds only …..( d ) that the parties are not respectively male and female”.
Of relevance also is s.20(2)(a) which renders a marriage voidable when not consummated owing to the incapacity of either party to consummate it.
Plainly, as a matter of language, “man” in the Marriage Ordinance means a biological male, and “woman” a biological female.
The first Marriage Ordinance was enacted in mid-19th century and followed, naturally at that time, development in England. The common law position was stated by Lord Penzance in Hyde v Hyde (a 1866 case) in these terms:
“Marriage has been well said to be something more than a contract, either religious or civil – to be an institution. It creates mutual rights and obligations, as all contracts do; but beyond that, it confers a status. The position or status of ‘husband’ and ‘wife’ is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite rights upon their offspring”.
UK VIEW: ‘ABILITY TO REPRODUCE’
Fast forward 100 years, with SRS a reality, the position in England had not changed. The 1970 case Corbett v Corbett (otherwise Ashley) involved a post-operative male-to-female transsexual, April Ashley, who had earlier married Mr Corbett. Later on, Mr Corbett sought a decree of nullity on the basis that the marriage was void because April Ashley was not a “woman” for the purposes of marriage. Ormrod J agreed and declared a decree of nullity in Mr Corbett’s favour.
As Lord Hope said in Bellinger v Bellinger thirty years later:
“…it is not given to every man or every woman to have or to want to have children. But the ability to reproduce one’s own kind lies at the heart of all creation, and the single characteristic which invariably distinguishes the adult male from the adult female throughout the animal kingdom is the part each plays in the act of reproduction.”
Not surprisingly, the CFA concluded as follows:
“In our view, as a matter purely of statutory construction …..the legislative intent underlying MCO section 20(1)(d) – and, because of its similar content, MO section 40 – is plainly that the Corbett approach…. applies. Marriage is the voluntary union for life of one man and one woman to the exclusion of all others and where the court has to decide whether a particular individual counts as a ‘woman’ is that Ormod J’s criteria and approach should be adopted”.
The words “man” and “woman” retained their meanings in the traditional sense.
This was the views of all nine judges who had considered the matter at the different court levels. The Registrar was clearly right to conclude that W could not be treated as a “woman” for the purposes of marriage.
What more was there to say?
Plenty more, as the majority of the CFA thought.
THE CONSTITUTIONAL ANGLE
Whilst the Registrar was undoubtedly correct in his interpretation of MO s.40, what if s.40 itself was “unconstitutional” as being in conflict with Article 37 of the Basic Law?
Article 37 says:
“The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”.
To most people the idea that MO s.40 could conflict with Article 37 (BL37) would come as a big surprise.
The word “marriage” in BL37 must surely have the same meaning as “marriage” in s.40?
The Ordinance had stood in the statute book for decades before the Basic Law was promulgated in 1990, and was intact when the Basic Law became Hong Kong’s constitutional instrument on 1 July 1997. Article 160 of the Basic Law had made the MO part of the laws of the SAR (in line with hundreds of other Ordinances), since the Standing Committee of the NPC had not declared it in contravention of the Basic Law in terms of Article 160.
How then could s.40 be “unconstitutional”?
There is not the least doubt that, as things stood on 1 July 1997, “marriage” in BL37 meant marriage in the traditional sense. This is totally in line with Article 19 of the Bill of Rights which says:
“(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
(2) The right of men and women of marriable age to marry and to found a family shall be recognised.
(3) ………..[ not relevant ]
(4) ………..[ not relevant ].”
Unless the word “marriage” in BL37 carried a wider meaning than the same word in the MO and the MCO, s.40 could not possibly be in conflict with BL37.
But that precisely was how the majority of the CFA approached the matter.
For them, the scene had so shifted between 1997 (when BL37 took effect) and 2013 (when the CFA heard the case) that the traditional meanings of “marriage” and of “man” and “woman” could no longer hold sway; the legal interpretation of BL37 must reflect societal changes in Hong Kong occurring during that stretch of time.
“The judges reached this extraordinary position, not by studying local conditions but through shifts in attitude towards transsexualism in Europe and the UK.”
This seismic shift happened, according to the majority of the CFA, within a period of only fifteen years. The judges reached this extraordinary position, not by studying local conditions but through shifts in attitude towards transsexualism in Europe and the UK, as seen through a huge volume of overseas case law. For the court, reality existed in overseas jurisprudence and law reports and not on the ground. The text of BL37 remained the same, but its meaning changed in line with “present-day conditions”, seen through the lens of overseas jurisprudence.
This is what Ma CJ and Ribeiro PJ said in para 84 of their joint judgment:
“When the position in Hong Kong in 2013 is examined, it is our view clear that there have been significant changes which call into question the concept of marriage adopted as a premise by Ormrod J and also the criteria which he deduced therefrom.”
The reference to “Ormrod J” harks back to the Corbett case decided in England in 1970. Why that is relevant in Hong Kong is not explained.
“When the position in Hong Kong is examined”, said the judges. Examined by whom? Through what process?
And whose “concept of marriage” were they referring to? Their own, or that of Hong Kong citizens at large?
There was not an iota of local evidence before the court to indicate societal change in attitude regarding transsexualism. This was something plucked out of the air to fit a preconceived position.
And why go back to what Ormrod J said in Corbett v Corbett in England in 1970? What about the judges’ own view of the “concept of marriage” in MO s.40 as a matter of statutory interpretation?
There was inherent and irreconcilable contradiction in the judges’ approach.
Contrast this with the clarity in Patrick Chan PJ’s dissenting judgment:
“Para 152: I am not persuaded that there is justification for extending the meaning of ‘marriage’ in art 37 of the Basic Law to include transsexual marriage ….
“Para 160: The ordinary meanings of ‘man’ and ‘woman’ for the purpose of marriage refer respectively to a biological man and a biological woman capable of producing children. This accords with the common understanding of these words and is also reflected in their meanings in the dictionary. These words do not include a post-operative transsexual man and woman …
“Para 161: There is no evidence that in Hong Kong, these words have acquired any new contemporary meanings which are different from what is commonly understood by these words.”
Arbitrarily enlarging the meaning of “marriage” in BL37, Ma CJ and Ribeiro PJ concluded as follows (para 124):
“…we hold that a transsexual in W’s situation, that is, one who has gone through full SRS, should in principle be granted a declaration that ……she is entitled to be included as a ‘woman’ within the meaning of MO section 40 and MCO section 20(1)(d), and therefore eligible to marry a man”.
That is easy to say, but what are the consequences? And what does “full SRS” mean? Who decides what is “full”? What about the transsexual person who stopped short at hormone treatment?
Assume that W’s wedding took place when the CFA gave judgment: May 2013.
W was then nearly 38 years old, a reassigned transsexual, having lived for over 30 years as a male. Of those 30 years, 10 were lived as an adult.
The applicant was never in the witness box, so physical appearance at the wedding is unknown. Though dressed in a traditional white flowing wedding gown, decked in flowers, it was entirely possible that in terms of voice, manner, gestures and attitudes, and also body-shape, W retained much of the male characteristics. The marriage celebrant pronounced the couple husband and wife (and “you may kiss the bride”). Assume the man’s parents were present at the ceremony, would they have accepted W as their new daughter-in-law? Assume the man had previously been married and had young children there at the wedding, would they have accepted W as their step-mother? Would the wedding guests, perhaps subconsciously, have regarded the situation as one of utmost taboo: a same-sex marriage?
W’s former existence as an adult male cannot be airbrushed out of existence. What if W (or someone in W’s position) before sex-change had been married and had children? What are the rights of those children vis-a-viz their father, now supposedly a married woman?
Having made the declaration “in principle” referred to earlier, the court was unable to articulate a formal order. This is not surprising, for it is not the role of the court to engage in social engineering. Hence Ma CJ and Ribeiro PJ said in para 149:
“We… direct that the parties be at liberty to lodge within 21 days from the date of this judgment, submissions in writing in respect of the appropriate Orders to be made in the light of the Court’s judgment and also submissions on costs, with liberty to file written submissions in reply, if any, within 14 days thereafter.”
Thus the matter ended; an uncertain change in the status of men and women declared by law, with family values imposed by judges on the community, reckless of consequences. Let others clear up the mess. The court, with sovereign hauteur, moves on.
W received satisfaction. But at what expense? What damage was done to the rule of law?
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.
For a different opinion on same-sex marriages in Hong Kong, albeit not from the point of view of legal niceties, click here for an essay by well-known Hong Kong LGBT rights campaigner Jerome Yau.