W v Registrar of Marriages [2013] HKCFA 39; FACV 4/2012 () is a landmark court case for LGBTQ rights in Hong Kong. In a 4:1 decision, the Court of Final Appeal gave transgender people the right to marry as their affirmed gender rather than their assigned gender (referred to in the decision as 'biological sex') at birth.
The applicant of the case was only identified as W and assigned male at birth. 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 her assigned sex was recorded as male on her birth certificate. Hong Kong does not allow same sex marriage. The Government contended it only accepted one's sex as originally assigned 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 (as Cheung PJ then was) 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.
<sub>(Court of Final Appeal judgment paragraphs 2, 19, 20, 58, 60)</sub>
The Court of Final Appeal observed the following facts.
<sub>(Court of Final Appeal judgement paragraphs 5, 6, 11, 14-17)</sub>
The Court of Final Appeal was presented with two issues to solve in the case:
Has the Registrar for Marriages misunderstood the Marriage Ordinance in coming to the conclusion precluding Ms W from marrying her male partner?
If the Registrar was correct, is the Marriage Ordinance as it is understood compatible with the right to marry or to privacy guaranteed by the Basic Law and the Bill of Rights Ordinance?
<sub>(Court of Final Appeal judgement paragraph 4)</sub>
The following table lists out the government's arguments to demonstrate that the Registrar did not misunderstand the meaning of the words âÂÂwomanâ and âÂÂfemaleâ in the two Ordinances as well as the Court's reasoning related to each argument.
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.
The Court of Final Appeal held that the Registrar had been correct in construing the Ordinances using CorbettâÂÂs definition of a personâÂÂs sex.
<sub>(judgement paragraph 117)</sub>
The Court of Final Appeal held that CorbettâÂÂs definition of oneâÂÂs sex was inadequate and too restrictive to only include biological factors and resulted in unconstitutional infringement of WâÂÂs right to marry guaranteed by Article 37 of the Basic Law and by Article 19(2) of the Bill of Rights.
<sub>(judgement paragraphs 118-119)</sub>
The Court of Final Appeal issued the following orders:
<sub>(judgement paragraphs 120 & 150; supplementary judgement paragraph 11)</sub>
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 and also suggested the Government to consider the UK's Gender Recognition Act 2004 in addressing this problem.
<sub>(judgement paragraphs 120, 127-146)</sub>
In response to the court's decision, the government introduced the Marriage (Amendment) Bill 2014, which, if passed, would amend the Marriage Ordinance to allow post-SRS transgender people to marry in their affirmed gender. The bill was gazetted on 28 February 2014 and subsequently introduced by Secretary for Security Lai Tung Kwok for its first reading in the Legislative Council on 19 March 2014. The government stated that while the court's order would go into effect regardless of whether the legislation was passed, the bill's passage was important to maintain the rule of law in Hong Kong and to align statutory language with the current state of the law.
At its meeting on 21 March 2014, the House Committee resolved to form a bills committee to study the bill, which met for the first time on 1 April 2014.
Upon the resumption of the second reading debate on 22 October 2014, the bill was voted down by equal numbers of pro-democratic and pro-establishment legislators, with only 11 pro-establishment lawmakers voting in support. The liberal pro-democratic lawmakers objected to the inclusion of the SRS requirement, which they viewed as inhumane.
The bill was criticised by LGBT activists, the Law Society, the Equal Opportunities Commission, and a number of other organisations for effectively coercing transgender people into undergoing potentially "dehumanising" surgical procedures that would render them sterile, resulting in a violation of their constitutional rights to marriage, reproduction, privacy, and family life. A trans woman speaking at a meeting of the bills committee considering the bill called the SRS requirement "cruel" and "inhumane".
The bill was also opposed by conservative Christians, who claimed that the bill would "confuse gender identities" and might "encourage youngsters with doubts about their sexual identity" to "become homosexuals".