We do not normally stray outside the confines of Europe; however, the issue of same chromosomal sex marriage has been the subject of an interesting judgment from the Hong Kong Court of Final Appeal which we thought worth bringing to the attention of a wider audience.
Under Hong Kong law, though a post-operative transsexual will be issued with a replacement identity card and passport reflecting his or her changed gender, it is not the practice to alter the sex recorded in a birth certificate – on the basis that the document merely states historical fact. In W v The Registrar of Marriages  HK Ct of Final Appeal (13/05/2013, FACV4/2012) the appellant, a post-operative male-to-female transsexual, wished to marry her male partner but the Registrar refused to permit celebration of the marriage on the grounds that Ms W was not “a woman” under the terms of the Marriage Ordinance and the Matrimonial Causes Ordinance.
By a majority of 4:1 (Ma CJ, Ribeiro PJ and Bokhary and Lord Hoffmann NPJJ: Chan PJ dissenting) the Court of Final Appeal held that in enacting the Matrimonial Causes Ordinance the legislative intent had been to transpose into the law of Hong Kong section 1(c) of the (UK) Nullity of Marriage Act 1971 which provided that a marriage taking place after the Act’s commencement was void if “the parties are not respectively male and female”. That section was a legislative endorsement of Corbett v Corbett (otherwise Ashley)  P 83, which involved a decree of nullity in the case of a marriage between a male and a post-operative male-to-female transsexual and a declaration that the marriage had been void ab initio. In Corbett v Corbett Ormrod J had declared that procreative intercourse was an essential constituent of a marriage at common law and, therefore, that biological factors were the only appropriate criteria for assessing the sex of an individual for the purposes of marriage. The Hong Kong Marriage Ordinance covered the same ground and was to be similarly interpreted. On that analysis, the Registrar had been correct in construing the relevant sections of the Marriage Ordinance as excluding the appellant as a woman for the purposes of marriage
However, that was not the end of the story.
Article 37 of the Basic Law and Article 19(2) of the Hong Kong Bill of Rights protect the right to marry; and the majority of the Court was of the opinion that while the institution of marriage was necessarily subject to legal regulation, that regulation could not be inconsistent with the Basic Law and the Bill of Rights or operate so as to impair the right to marry. In present-day multi-cultural Hong Kong, the nature of marriage as a social institution had undergone far-reaching changes and the importance of procreation as an essential constituent had much diminished.
In addressing the question whether a post-operative transsexual was “a woman” for the purposes of marriage, it was contrary to principle to focus merely on biological features fixed at the time of birth and to regard them as immutable. The Court should consider all circumstances relevant to assessing a person’s sexual identity at the time of the proposed marriage, including biological, psychological and social elements and whether that person had undergone gender-reassignment surgery. Whether or not there was a consensus in society at large regarding a transsexual’s right to marry was not a relevant consideration, since reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim was inimical in principle to fundamental rights.
The Court therefore held that the relevant provisions in the two Ordinances were inconsistent with and failed to give proper effect to the constitutional right to marry. Denying a post-operative transsexual woman like Ms W the right to marry a man effectively precluded her from marrying at all. The provisions in the two Ordinances impaired the very essence of Ms W’s right to marry and were therefore unconstitutional. It was unnecessary to consider whether W’s right to privacy under Article 14 of HK Bill of Rights might support her constitutional right to marry.
The Court left open the question as to whether or not transsexual persons who had undergone less extensive treatment than Ms W might also qualify and suggested that the legislature should introduce legislation similar to the United Kingdom’s Gender Recognition Act 2004, including provision for an expert panel to vet gender recognition claims case-by-case and to grant gender recognition certificates.
What the majority judgment was not about, however, was the wider issue of same-sex marriage:
“Neither the appellant W, the respondent the Registrar of Marriages nor the intervener the International Commission of Jurists has addressed us on the question of same-sex marriage. I proceed in this case on the footing that the right to marry guaranteed by our constitution is a right to marry a person of the opposite sex. Such a right is undoubtedly a human right. To say that it has no application to post-operative transsexuals is to deny their humanity. So it does apply to them. In what way? To say that what it guarantees is a right to marry in the pre-reassignment capacity would run counter to the purpose of sex reassignment surgery as a treatment for transsexualism. It is inconceivable that a human right would operate in such an inhumane way. What is left? Quite simply and obviously, the right to marry in the reassigned capacity” [per Ma CJ at para 224].
The overall proceedings had a distinctly UK flavour: in addition to Lord Hoffmann’s presence as a non-permanent justice, Lord Pannick QC led for the appellant and Monica Carss-Frisk QC for the respondent.